IP Law Daily, COPYRIGHT—S.D.N.Y.: YouTuber failed to show that DMCA take-down notices were made in bad faith, (Aug 12, 2025)

By Kevin M. Finson, J.D.

Judgment was granted after trial because the alleged infringer failed to show the copyright owner had issued takedown notices without at least a subjective belief that the works in question were not protected by fair use.

A producer of YouTube videos failed to show that DMCA takedown notices issued against her were made without consideration of the doctrine of fair use, the U.S. District Court in White Plains has held. The evidence was insufficient to show the copyright owner’s subjective bad faith (Shaffer v. Kavarnos, No. 7:23-cv-10059-KMK-AEK (S.D.N.Y. Aug. 7, 2025)).

Heather Shaffer operated a YouTube channel called “Hell to the No.” Carolyn Kavarnos operated a YouTube channel called “MommyRamblingsBlog.” Kavarnos submitted several takedown notices to YouTube under the Digital Millennium Copyright Act (DMCA), alleging that Shaffer used portions of Kavarnos’ videos without permission. Shaffer submitted counter-notifications asserting fair use. Shaffer brought suit against Kavarnos alleging the takedown notices were submitted without the required consideration of fair use. The court held a bench trial on the merits.

Fair use. The court found that a copyright holder is liable for misrepresentation under the DMCA if it ignores or neglects the doctrine of fair use before sending takedown notifications; however, the bar for liability is high. If the copyright holder subjectively believes, even mistakenly, that the identified material infringes its copyright then it is not liable for misrepresentation in filing takedown notices.

Applying that standard to the evidence at trial, the court found that Shaffer had not shown by the preponderance of the evidence that Kavarnos had the requisite mental state of deliberately ignoring fair use. A statement made by Kavarnos that she would strike any video using any part of her intellectual property post-dated the notices by over a year and so was not very probative of Kavarnos’ state of mind at the time of the takedown notices.

Evidence that the takedown notices were sent due to reasons other than to enforce copyright, including “bullying,” “stalking,” and “harassment,” showed only additional motivations. It did not show that the notices were not also supported by copyright considerations.

The court granted judgment in favor of the defendant after trial.

The Case is No. 7:23-cv-10059-KMK-AEK.

Judge: Karas, K.

Attorneys: Jonathan Phillips (Phillips & Bathke, PC) for Heather Shaffer. Mark Matri (McCann & Matri LLC) for Carolyn Kavarnos.

Cases: Copyright NewYorkNews