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A Bold Victory for Copyright Fair Use

Posted in Advertising, Fair Use

-Wes Anderson, Attorney

Get your webcams ready: the reaction video genre got a huge shot in the arm from the Southern District of New York this week.

h3h3 Productions, a popular YouTube channel with well over four million subscribers, has been embroiled in a fair use lawsuit for for a couple of years now. The channel’s proprietors and stars, Ethan and Hila Klein, uploaded a reaction video in 2015 making light of “The Bold Guy,” a/k/a Matt Hosseinzadeh or “Hoss.” In the original video, Hosseinzadeh woos a “Parkour Girl” through his “wit” and parkour skills. The Kleins’ video made quick work of Bold Guy’s absurdity, playing snippets of the original video and interspersing scathing commentary throughout. Hosseinzadeh promptly brought a lawsuit against the Kleins, alleging copyright infringement, defamation, and misrepresentation (due to the Klein’s DMCA “counter-takedown”).

After years of legal wrangling, Judge Katherine Forrest issued a demonstrative opinion granting summary judgment to the Kleins. Among the best snippets:

Before the Court are dueling motions for summary judgment. The key evidence in the record consists of the Klein and Hoss videos themselves. Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video; there is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law. Further, it is clear that defendants’ comments regarding the lawsuit are either non-actionable opinions or substantially true as a matter of law. For these and the other reasons set forth below, plaintiff’s defamation claim fails. Defendants’ motion for summary judgment is therefore GRANTED, and plaintiff’s motion is DENIED.

[. . .]

The Klein video is harshly critical of the Hoss video, and includes mockery of plaintiff’s performance and what the defendants consider unrealistic dialog and plotlines. In addition, defendants’ commentary refers to the Hoss video as quasi-pornographic and reminiscent of a “Cringetube” genre of YouTube video known for “cringe”-worthy sexual content. As critical as it is, the Klein video is roughly equivalent to the kind of commentary and criticism of a creative work that might occur in a film studies class.

[. . .]

Here, it is clear to the Court that the Klein video does not serve as a market substitute for the Hoss video; anyone seeking to enjoy “Bold Guy v. Parkour Girl” on its own will have a very different experience watching the Klein video, which responds to and transforms the Hoss video from a skit into fodder for caustic, moment-by-moment commentary and mockery. Because the Klein video does not “offer[] a substitute for the original,” it does not (and indeed, cannot) “usurp a market that properly belongs to the copyright-holder.” Infinity Broad. Corp., 150 F.3d at 110.

The whole opinion is worth a read, and will likely set a precedent for fair use disputes in the age of YouTube. In short? Not a great lawsuit for The Bold Guy.