Fair and Square

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A US court ruling settles the issue of fair use on YouTube, at least until the next case

As the biggest video-sharing platform on the web, it is inevitable that YouTube would be subject to at least some controversy. But a recent court ruling in August has appeared to have settled one issue, though perhaps only temporarily. This came about after Ethan and Hila Klein, owners of the popular YouTube channel known as h3h3 Productions, had a copyright infringement claim brought against them last year.

The video that triggered this lawsuit was what is commonly referred to as a ‘reaction video’, in which a viewer of an original piece of work records themselves reacting to that content adding commentary on its various aspects. In this case, the Klein’s had reacted to a video made by Matt Hosseinzadeh, also known as Matt Hoss, that was of a fictional character who is challenged to a parkour race by a woman. The reaction video by the Klein’s featured clips of Mr Hosseinzadeh’s work with interjections in-between mocking certain sections of the video.

After the reaction video gained some popularity (it had obtained millions of views), Mr Hosseinzadeh submitted a Digital Millennium Copyright Act, or DMCA, takedown notification to YouTube in April 2016, after which the Klein’s video was taken down. Mr Hosseinzadeh had claimed that the Klein’s had used “virtually all of the work” he produced without permission. Subsequently, the Klein’s uploaded another video, titled ‘We’re Being Sued’, criticising the claim made by Mr Hosseinzadeh whilst also making a counter-claim arguing that the reaction video was fair use and noncommercial. Mr Hosseinzadeh then amended his claim to include defamation.

But in August, the United States Southern District Court of New York ruled in favour of the Klein’s, stating that the use of the copyright clips was fair use under American law.

Four Strikes Not Out

America is the birthplace of the doctrine of fair use and remains as one of the few jurisdictions which recognise it as a justification for using copyrighted material. It is defined as a defence against complaints of copying copyrighted work where it is done for a limited and transformative purpose. But this legal concept had hardly been considered in the context of the digital world since it was incorporated in the Copyright Act 1976. Until this recent court case, there was a degree of uncertainty as to whether certain kinds of videos on YouTube, including reaction videos, would be able to rely on this doctrine.

It appears that some clarity has now been provided. District Judge Katherine Forrest, who provided the summary judgment in the case, carefully outlined the concept of fair use before demonstrating how the Klein’s were able to rely on this defence. Though it was noted in the case that there were no hard or fast rules in determining whether there is fair use or not; in Campbell v Acuff-Rose Music, Inc (1994) it was suggested that such issues required “case-by-case analysis.”

Nevertheless, there are four main factors the court will look at to aid its analysis. First, the court will assess the purpose and character of the use of the copyrighted material. Secondly, the nature of the copyrighted material will be acknowledged. The third factor looks at the substantiality of the portion used in relation to the copyrighted work as a whole. Lastly, the court will look at the effect on the potential market or value of the copyrighted work.

With regard to the first factor in this particular case, Forrest stated that “criticism and comment” are typical examples of fair use. The Klein’s reaction video embodies exactly this, as it features clips from Mr Hosseinzadeh’s work but attached with new clips conveying criticisms of numerous aspects of the original video. This includes comments on the fashion choices to the portrayal of women. As Forrest says, “Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video.” As such, the Klein’s video clearly was “transformative” since the commentary added something new to the original work. Forrest also stressed that the merit of the commentary was not of relevance.

In terms of the second factor, Forrest stated that it is “rarely found to be determinative.” Thus, in this case, while Mr Hosseinzadeh’s video is “fictional or creative” and weighed “against a finding of fair use”, this was insufficient to overcome the other factors which were considered in the case.

The third factor essentially looks at “what proportion of the copyrighted work” the Klein’s video used and then “how well tailored that use was [to the] the proper purpose” of the reaction video. In this case, Forrest determined that while the Klein’s had used an extensive amount of Mr Hosseinzadeh’s work, that was necessary in order to provide commentary on it, which was after all the main purpose of the reaction video.

Just as with the other factors considered, the Klein’s video passes the fourth. Here, the court will have to assess whether the infringing work offers a substitute to the original. In particular, as stated by Forrest, the court must determine to what extent the Klein’s video “usurps” demand for the copyrighted work, resulting in a loss to Mr Hosseinzadeh or an “unjust enrichment” of the Klein’s. Forrest ruled that this was not evident in this case, emphasising that both videos would provide “very different” experiences for anyone watching them. Therefore, no usurping could take place as the reaction video was not a substitute for the original in the eyes of the law.

Mr Hosseinzadeh’s defamation claim also fell flat. Forrest said that “New York law absolutely protects statements of pure opinion, such that can never be defamatory.” Accordingly, the Klein’s video criticising Mr Hosseinzadeh original complaint contained such “non-actionable opinions” and any statements explicitly made were substantially true.

Watch This Space

The fate of reaction videos on YouTube would appear to be more secure after this recent court decision. But those holding this view should do so cautiously. Forrest does state in her ruling that “videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on the potentially copyrighted material.” The case does still set a fairly reliable precedent for other creators to follow. Ethan Klein believes that the case “is a huge win for…the YouTube community” since it avoids imposing a ‘chilling effect’ on other creators when uploading content. But this issue is unlikely to remain settled. Other videos which are within the same realm as reaction videos may not be subject to the same legal fate. It is not unusual for the online world to pose unprecedented challenges and questions to the legal frameworks meant to regulate it. It is, therefore, possible that the issue could come up again, perhaps in a different jurisdiction or again America. Whenever and wherever it may happen, the outcome is not totally certain. Thus, creators on YouTube should carry on cautiously.


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