Do We Know Them Podcasters Win Fair Use CCB Case

The Copyright Claims Board (CCB) has dismissed a case filed against Jessica Vazquez and Lily Marston, better known as the Do We Know Them podcast. 

Attorney Jeanette M. Braun filed the claim on behalf of herself and her law firm, Braun IP Law, LLC. She alleged that the podcasters used copyright-protected material from a TikTok video she uploaded in a podcast that was critical of her and her client.

However, Vazques and Marston, who represented themselves, argued that their use was protected by fair use. After hearing both sides of the case, the CCB sided with the respondents.

The board dismissed the case with prejudice, meaning Braun has limited appeal options. She can request that the board reconsider the determination, but other appeal options, namely the Register of Copyrights and federal court, are also extremely limited.

Most likely, this is the end of this particular claim.

However, this determination was well over a year in the making. It’s worth seeing how we got here and why the CCB ruled the way it did.

TikTok, Drama and Lawsuits

The story begins with one of Braun’s clients, Lauren Propson, better known on TikTok as Lauren the Mortician.

In October 2023, Propson became the center of controversy on TikTok. Fellow TikTokker Jamie Grayson took issue with some of Propson’s advice regarding car seats. Propson lashed out at Grayson, even though he is a Child Passenger Safety Technician, drawing even more attention to her.

From there, the dispute spiraled. 

Others on TikTok began to accuse Propson of various other wrongdoings. However, as the criticism mounted, several users complained that Propson’s attorney, Braun, filed false takedown notices against their videos

However, Braun did more than file paperwork for Propson. On December 2, 2023, she uploaded a video entitled Bekah Day False Accusations to rebut Day’s allegations. Day was one of many on TikTok criticizing Propson during this time. 

Days later, Vazques and Marston released an episode of their podcast, Do We Know Them, about the Propson controversy. As part of that, they used roughly one minute of Braun’s eight-and-a-half-minute video. 

In December 2023, Braun and Propson sued four separate defendants, including Day, Vazquez and Marston, for defamation. Grayson is not a part of the lawsuit, which is ongoing.

At roughly the same time, Braun also filed a claim with the CCB against Vazques and Marston. Propson was not a party to this claim. 

That claim has now been concluded. The board sided with Vazques and Marston, ruling that their actions were fair use.

How the CCB Ruled 

In its final determination, the CCB noted that most of the case’s facts were undisputed. Vazques and Marston acknowledged that they didn’t own Braun’s video and used it without permission.

As such, the case hinged on one question: Was it fair use?

The board looked at the four factors that determine fair use:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

On the first factor, the board found that its use was commercial, but the primary intent was to comment on and criticize Braun’s arguments. As such, that factor favored fair use.

On the second, the board found that the work was largely factual and not creative. Still, the board considered this factor neutral or, at most, “slightly” against fair use.

With the third factor, the board found that it slightly favored fair use. The board dismissed Braun’s arguments that the portion used was the “heart” of the work. The board also noted that the podcasters made extensive commentary about the material, which made up 1-2 percent of the podcast episode.

Finally, on the fourth factor, the board ruled there was no evidence that the podcast impacted the market for the original work. As such, this factor strongly favored fair use.

The board theme concluded, “The weight of the fair use factors clearly favors fair use in this case.” As such, the board dismissed the claim with prejudice.

My Analysis

Overall, the CCB did a good job with this case. Despite significant filings from both sides, the board cut to the core of the issue.

This was a straightforward fair use case. None of the other facts were in contention, which is why the board focused on the fair use analysis in its determination.

To that end, the analysis is thorough, well-cited and well-reasoned. I can’t argue against any of their conclusions, including the final one.

That said, there are a few points worth discussing.

First, the case took over one year to complete, even though the claim was accepted on the first try. Though Vazquez and Marston’s response was delayed, it was still 8 months from when the claim response was filed to the final determination. 

While that is a long time, it’s worth noting that the defamation lawsuit, which was filed nearly simultaneously, is still ongoing. In fact, it’s still in the early stages. It shows that, while the CCB does take time, it can be much faster than a federal court lawsuit.

Though the CCB has recently faced stiff criticism, this proves that the process can work, at least in some situations.

Bottom Line

This case was virtually made for the CCB. The amount of damages sought was well within the CCB’s purview, and it dealt with a single point of contention between the two sides.

With that in mind, the CCB knocked it out of the park with a well-reasoned analysis and strong conclusion. Both sides were better off having gone through the CCB. 

However, perhaps what is most interesting is how this case compares to the federal one involving defamation. That case is still in its early stages, and undoubtedly, it’s been much more costly for everyone involved.

While filing this claim was and still is controversial, it’s a perfect example of how the CCB should work. It was a minor claim, resolved relatively quickly and with minimal fees. 

Though I can’t imagine Braun is happy with the outcome, at least it wasn’t a costly defeat.

Ultimately, the CCB reached the correct conclusion with minimal cost to either side. While this claim is a footnote in the larger story, it’s at least a footnote that was easier to tie up. 

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