Things went on this way for some time, as the judge wondered, “Did the plaintiff bring a lock and a beer can?” (The plaintiff did not.) She appeared to be quite disappointed when it was clear there would be no live shimming demonstration in the courtroom.
Then it was on to the actual arguments. Proven argued that the 15 seconds of its 90-second promo video used by McNally were not fair use, that McNally had defamed the company by implication, and that shimming its locks was actually quite difficult. Under questioning, however, one of Proven’s employees admitted that he had been able to duplicate McNally’s technique, leading to the question from McNally’s lawyer: “When you did it yourself, did it occur to you for one moment that maybe the best thing to do, instead of file a lawsuit, was to fix [the lock]?”
At the end of several hours of wrangling, the judge stepped in, saying that she “declines to grant the preliminary injunction motion.” For her to do so, Proven would have to show that it was likely to win at trial, among other things; it had not.
As for the big copyright infringement claim, of which Proven had made so much hay, the judge reached a pretty obvious finding: You’re allowed to quote snippets of copyrighted videos in order to critique them.
“The purpose and character of the use to which Mr. McNally put the alleged infringed work is transformative, artistic, and a critique,” said the judge. “He is in his own way challenging and critiquing Proven’s video by the use of his own video.”
As for the amount used, it was “substantial enough but no more than is necessary to make the point that he is trying to critique Proven’s video, and I think that’s fair game and a nominative fair use circumstance.”
