The fair use doctrine recently won an important legal battle, providing some more clarity on how copyrighted work can be used without necessarily seeking permission from the owner while also not infringing the owner’s rights. Here’s what happened.
Co-authored by Roman Zelichenko and Mark Levy
The case is Hosseinzadeh v. Klein. Plaintiff Matt Hosseinzadeh, aka Matt Hoss, created a series of videos starring himself as “Bold Guy,” a “confident and funny” character who would try to pick up women in various scenarios. The video at the center of this legal battle is entitled “Bold Guy vs Parkour Girl” in which “Bold Guy tries to pick up a girl who challenges him to a parkour / freerunning chase.”
A legal battle ensued, putting the Kleins, and more importantly fair use, at risk.
In this video, Bold Guy approaches a woman wearing somewhat revealing workout clothes and engages her in conversation. At first the woman rejects and rebuffs Bold Guy’s remarks, but then in a sudden turn of events, she relents, challenging Bold Guy to catch her if he wants to “have her.” A chase ensues through what looks like a university campus. Ultimately, Bold Guy catches up to her, but then in yet another twist, challenges her to catch him if she wants to find out what he wants to “do with her.” It’s cheesy and uncomfortably suggestive.
Defendants Ethan and Hila Klein, who run the popular YouTube channel h3h3Productions, made a reaction video to “Bold Guy vs Parkour Girl.” In it, they poked fun at the script, commented on the chase scene and teased Bold Guy’s clothes while having their own fun — joking with one another, going off on random tangents, and so on. Watching the reaction video, we found it to be light-heartedly satirical and not overly offensive. Despite their criticism, the Kleins mentioned their respect for the plaintiff, complimented his work, and told viewers to visit his page. No harm, no foul.
Well, Matt Hoss didn’t feel the same way. Hoss emailed the Kleins asking them to take down their reaction video. They declined, pointing to, among other things, the doctrine of fair use. Hoss disagreed and sued the Kleins. A legal battle ensued, putting the Kleins, and more importantly fair use, at risk.
Not to kill the suspense (this is all in the public record anyway), but the Kleins ultimately prevailed. After over a year of litigation and an eventual trial in the Southern District of New York, Judge Katherine Forrest sided with the Kleins on all three of Hoss’s claims.
Hoss’s first claim was copyright infringement — that when the Kleins used clips from “Bold Guy vs. Parkour Girl” in their reaction video, they violated his copyright to the video. The Kleins called on the principle of fair use in their defense.
According to the U.S. Copyright Office, fair use is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances… such as criticism, comment, news reporting, teaching, scholarship, and research.” Courts weigh four factors to decide fair use: the purpose behind using the new work, such as nonprofit versus commercial purpose, the nature of the new work, how much of the copyrighted work is used, and the effect on the market of the work.
Regarding the first factor, which weighed overwhelmingly in favor of the Kleins, the judge noted that the Klein reaction video was “quintessential criticism and comment,” listing examples of Ethan and Hila Klein clearly criticizing and commenting on the Hoss video.
As for the second factor, the judge agreed with Hoss that his work was creative rather than “factual” in nature, which weighed in his favor.
For the third factor, while the judge agreed that a large portion of the Hoss video was reproduced — specifically three minutes and fifteen seconds of a five minute and twenty four second video — she felt that this was an appropriate amount of the video for the Kleins to be able to get their point across, and so did not weigh this factor in favor of either party.
And for the final factor, the judge wrote that the Klein video did not affect the market for the original Hoss video, that indeed they were separate videos and not substitutes for one another. She concluded that fair use protected the Kleins against the claim of copyright infringement.
Hoss had two more claims against the Kleins. The first claim, that the Kleins misrepresented their DMCA takedown counter-claim, was dismissed by the judge since she found that the Kleins had a “good faith belief” that they were not in violation of the DMCA. The other claim, that the Kleins defamed Hoss by releasing a subsequent YouTube video about the lawsuit, was dismissed on the premise that this lawsuit video was mostly pure opinion, which cannot legally be the basis of defamation.
Judge Katherine Forrest sided with the Kleins on all three of Hoss’s Claims.
In the end, not only did the Kleins win, but the YouTube community did as well. “Reaction” videos abound on the internet, and this case helped establish some legal precedent in favor of reaction videos as independently protected works, even where the reactions may be negative and potentially upsetting to the owner of the original work and where a fairly large portion of the original work is used.