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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