reaCtion viDeos anD fair use: a Youtuber’ s win
Intellectual Property Section Chairs: Debra D. Larsen- GrayRobinson, P. A. & Cole Carlson- GrayRobinson, P. A.
YouTube, a video-sharing website, has arguably become a common critic’ s paradise.
In fact, a genre of YouTube videos, aptly referred to as“ reaction videos,” has increased in popularity. One such“ reaction video” was the subject of a lawsuit in a New York federal court by filmmaker Matt Hosseinzadeh: Hosseinzadeh v. Klein, No. 16-cv- 03081 KBF( S. D. N. Y. Aug. 23, 2017). Hosseinzadeh wrote and performed in a short film entitled“ Bold Guy vs. Parkour Girl”(“ Hoss Video”). In the film, Hosseinzadeh plays a character who pursues a woman through the city while practicing parkour movements.
Defendants, Ethan and Hila Klein, posted a“ reaction video” to the Hoss Video on their popular YouTube channel(“ Klein Video”). In their video, the Kleins play segments of Hosseinzadeh’ s film as they critique his work.
Hosseinzadeh sued the Kleins. In his complaint, Hosseinzadeh alleged, among other things, copyright infringement. The Kleins argued that their use of the Hoss Video constituted fair use. Following discovery, the Kleins moved for summary judgment.
Fair use of a copyrighted work is an affirmative defense to copyright infringement. 1 In Hosseinzadeh, the court conducted a fair-use analysis,
examining each of the four factors outlined in the Copyright Act of 1976. 2
In considering
© Can Stock Photo / Bigsun the first factor, the court found that the Kleins were undoubtedly commenting on and critiquing Hosseinzadeh’ s video, thereby adding transformative value to Hosseinzadeh’ s underlying work. So the first factor weighed in the Kleins’ favor.
But the court found that the second factor weighed in Hosseinzadeh’ s favor. In the court’ s view, the Hoss Video was a creative work, and creative works are“ closer to the core of intended copyright protection than others.” 3
The third factor, the court concluded, did not weigh in either party’ s favor. Although the Klein Video copied the majority of Hosseinzadeh’ s film, the use of the clips was necessary to accomplish the purpose of commentary and critique.
Finally, with regard to the fourth factor, the court reasoned that the Kleins’ scathing review of Hosseinzadeh’ s film is not a market substitute of his work. Thus, the last factor weighed in the Kleins’ favor.
Ultimately, the court granted the Kleins’ summary judgment motion because their use of the Hoss Video was fair use.
In her ruling, District Judge Katherine B. Forrest notes that the
by providing a shining example of the fair use of an underlying work in a reaction video, the hosseinzadeh ruling serves as a win for Youtube critics everywhere. court was not ruling that all reaction videos constitute fair use. Even still, by providing a shining example of the fair use of an underlying work in a reaction video, the Hosseinzadeh ruling serves as a win for YouTube critics everywhere.
Naturally, after winning the case, the Kleins posted a reaction video, commenting on the court’ s ruling.
1
See 17 U. S. C. § 107; Hosseinzadeh v. Klein, No. 16-cv-03081 KBF at * 5( S. D. N. Y. Aug. 23, 2017).
2
17 U. S. C. § 107“( 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;( 2) the nature of the copyrighted work;( 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and( 4) the effect of the use upon the potential market for or value of the copyrighted work.”
3
Hosseinzadeh, No. 16-cv-03081,
KBF, Dkt. 116 at * 8( quoting On Davis v. Gap, Inc., 246 F. 3d 152, 173( 2d Cir. 2001)).
Author: Elana Greenway Faniel- Greenway Law Firm, P. A.
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