On the internet, even the most casual conversation can erupt into a flame war — in which, of course, huge satisfaction can be derived from getting the last word. But U.S. District Judge Katherine B. Forrest has offered up more than l’espirit de l’escalier, settling a recent, nasty copyright infringement battle between some YouTube commentators by accepting a fair-use defense on a “reaction” video.
The dispute involved H3H3 Productions, run by Ethan and Hila Klein. They’re partners in marriage, and in YouTube, where they create reaction videos. Their piece on another YouTuber, Matt Hosseinzadaeh, aka Matt Hoss, provoked a sharp reaction. They not only critiqued and criticized Hoss and his, um, he-man antics in Bold Guy v. Parkour Girl, they also included clips of his video, offering vulgar comments about him and it. Hoss, in what became an increasingly hostile online kerfuffle with the Kleins, sued them for copyright infringement, asserting they could not use his YouTube postings.
What’s a jurist to do with such disputants? Before the case even made it to court, Hoss sought to get the Kleins to settle, asserting they could do so by filming a public video apology and by giving positive, promotional shouts-out to him on their YouTube page. The Kleins declined, leading to Hoss’ suit. He became one in a long line of YouTubers to cry infringement. Many of these cases fail to advance, of course, because the online crowd struggles to establish ownership of their videos, and to make clear assertion of infringement claims.
Hoss’ videos were copyrighted, registered before the Klein’s materials, including his, were uploaded to YouTube. In answer to his infringement howls, the Kleins claimed fair use.
Transformative use defense
That, of course, is a key infringement defense, allowing judges to consider and advance or dismiss claims based on: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon a potential market. A critical consideration in fair use defenses can be when defendants, legally speaking, can demonstrate their work is transformative, as often is the case in commentary and criticism. Judge Forrest, examining the YouTube posts and finding them a new creation and not just a copy, ruled that: “Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video…[thus]…defendants’ use of clips from the Hoss video constitutes fair use as a matter of law.”
OK, so was this a tempest in too tiny electrons, a case for mere bemusement. As legal scholar Eric Goldman has written on his blog, “honestly, who has time to watch videos like this? Maybe it’s a generational thing (i.e., “those damn millennials”), but spending 15 minutes to watch the deconstruction of 3 minutes of someone else’s obviously amateurish video was only mildly entertaining and certainly didn’t enrich my life in any other way.”
A popular YouTube form
Alas, professor, there are thousands of such “reaction videos” on YouTube. “Hoss” v. Klein, thus, may become page-turning, must-legal reading for many professional and casual YouTube posters. Do their videos make fair use of others’ work, rising to bona fide commentary or criticism or are they a kind of clip-and-rip? In a footnote, Judge Forrest cautions that her ruling does not offer a “blanket defense” for all reaction videos, writing: “Some reaction videos, like the Klein video, intersperse short segments of another’s work with criticism and commentary, while others are more akin to a group viewing session without commentary.”
Indeed, YouTubers have posted everything from reviews on the vocals of a cappella groups, to videos capturing gamers’ excitement at completing difficult competition levels in record time. This isn’t exactly online’s Wild Wild West, it’s maybe more akin to Millennial’s online version of that populist broadcast evergreen America’s Funniest Home Videos.
But with users uploading 400 hours of video per minute to YouTube, a service now with more than a billion users, and with reaction pieces persistent and popular, how many more cases like Hoss will make their way to courts, where judges will be forced to assess amateur creators’ level of commentary. Are clips they take presented wholesale, with no interruptions, at full volume, or are commentators talking over them in the audio track? Do they employ split screens, commentators one one, videos under discussion on the other? If they only grimace, giggle, cheer, or otherwise emote—but they don’t chatter beyond that—is this fair use?