MCM Group 22 LLC v. Perry

In copyright infringement action by subject of pornographic film against publisher of social media post that contained still-frame image from film, district court grants motion to dismiss on fair use grounds, holding that social media post was transformative as commentary on Forbes article about cryptocurrency firm that allegedly employed her.

An individual referred to as Jane Doe appeared in a 2015 pornographic video produced by the founders and operators of Girlsdoporn.com and Girlsdotoys.com. As later revealed through criminal proceedings, GDP operated as a sex-trafficking enterprise whose operators recruited victims by fraudulently representing that the videos would never be posted online. Following the guilty plea of a co-conspirator, the U.S. District Court for the Southern District of California issued a restitution order that granted victims “superior right, title and interest” in their images, likenesses and videos produced by GDP. One of the victims, Jane Doe, later assigned her rights in the video to MCM Group 22 LLC in order to prevent unauthorized uses of the video.

Lyndon Perry published a post on the social media platform Twitter (now known as X) that combined a still frame image from the video with a screenshot of a Forbes article, creating a side-by-side composite image. The still frame portrayed a fully clothed woman on a bed, with overlaid text of a conversation referencing her studies in business and marketing. The Forbes screenshot was a profile of a female executive at cryptocurrency firm Celsius. Because both women were identified as “Jessica,” the post implied they were the same person. Perry published the image as a reply in a thread about Celsius reportedly suspending customer withdrawals. He added the caption “Same company btw,” thereby questioning Celsius’ judgment for potentially employing someone who had appeared in a pornographic film.

Upon discovering the post, Jane Doe submitted a takedown request under the Digital Millennium Copyright Act (DMCA), and Twitter promptly removed it. MCM Group 22 then sued Perry for copyright infringement, seeking injunctive relief to prevent him from posting or disseminating still frames from the video. Perry moved to dismiss on fair use grounds, and the court granted the motion.

The court found that the first fair use factor strongly weighed in favor of fair use. The video was produced as a pornographic film intended to depict sexually explicit content, but the post itself included no nudity or explicit imagery and instead served as commentary on Celsius. The court determined that a reasonable observer would view the post as a critique of Celsius, carrying a “markedly different purpose” than the original pornographic video did.

The court also noted that the post’s transformative character was reinforced by the fact that it addressed a matter of public concern—Celsius’ decision to freeze customer transfers and withdrawals. Although MCM Group 22 contended that the post’s purportedly commercial nature cut against fair use, the court concluded that any commercial motive was not determinative, especially in light of the post’s substantially transformative purpose.

On the second fair use factor, the court evaluated two subfactors: whether the work is expressive or creative, as opposed to factual or informational, and whether the work is published or unpublished. Perry argued that the video was not creative but rather “an interview and intercourse,” making it essentially a documentary and therefore a factual or informational work. The court declined to adopt this characterization, noting that the only relevant allegation in the complaint was that the work originated from criminal human trafficking activities and that, based on this limited record, the court was not in a position to classify the video as either expressive or informational. On the second subfactor, the court found that it slightly favored Perry, because the video had been published by GDP. In sum, the court concluded that the second fair use factor was neutral and carried limited weight in the overall analysis, given that the post was transformative.

The court held that the third factor weighed in favor of the fair use defense. It was undisputed that the post reproduced only a single frame from a 46-minute video. MCM Group 22 contended that even this small amount of copying was not fair use because any portion of the video that identified Jane Doe constituted the “heart of the work,” disclosing her status as a sex-trafficking victim. The court was unpersuaded, clarifying that the applicable test asks whether the portion taken captures the original’s essential creative expression such that the new work could operate as a substitute, not whether the excerpt is subjectively important to the rights holder. Because the post showed a fully clothed woman describing her professional interests, rather than any of the video’s sexually explicit content, it did not reproduce the video’s core expression. Accordingly, the court found that Perry appropriated only a negligible portion of the video to advance a transformative purpose.

The court found that the fourth factor also weighed in favor of fair use. Because the post did not contain any sexually explicit imagery and conveyed an entirely different message, a consumer seeking a pornographic film would not turn to the post as a substitute. Perry’s use of the still frame therefore could not usurp the market for the video. Plaintiff contended that the pertinent harm to the market was not diminished sales but rather heightened public curiosity about and “prurient interest” in the video, citing Clean Flicks of Colorado v. Soderberg for the principle that a copyright holder is entitled to control the market for its work. Clean Flicks involved movie studios that sued companies that produced and distributed sanitized versions of their films stripped of explicit content. The court found the analogy inapt, explaining that Clean Flicks concerned substantial, non-transformative copying—nearly wholesale reproductions of films that encroached on the studios’ derivative market for family-friendly editions—which bore no similarity to the single-frame transformative use at issue in this case.

Weighing all four factors together, the court found the defense of fair use had been established based on the face of the complaint, and granted Perry’s motion to dismiss. Although the court recognized that MCM Group 22 and Jane Doe’s efforts to curb the video’s reproduction and dissemination may be well-intentioned, it made clear that those efforts cannot reach beyond what copyright law permits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.