YouTubers Ethan and Hila Klein, better known online as h3h3Productions, have won a copyright lawsuit brought by another YouTuber, Matt “Hoss” Hosseinzadeh over their use of copyrighted clips.
In their first video responding to the victory, the married couple described the battle as “a landmark case” and said the judgement would “strengthen fair use across YouTube.”
The question at the heart of the case was whether using copyrighted clips in a YouTube video constitutes copyright infringement, or whether it’s fair use. Fair use is a US legal doctrine that lets you use copyrighted material under certain circumstances. Its more limited equivalent in the UK is fair dealing.
For the uninitiated, the Kleins are best known for posting reaction videos, a popular genre on YouTube where you literally watch people reacting to things. In April this year, the couple posted a highly critical review of an episode in Hosseinzadeh’s 2013 series “The Bold Guy.” The series follows a fictional pick-up artist trying to pick up women.
The couple reviewed a five-minute episode in the series called “Bold Guy vs Parkour Girl”, where “Bold Guy” chases a woman who challenges him to a parkour race. The video has racked up 11 million views, though the series has a one-star rating on IMDB.
Here’s the episode they critiqued:
And here’s the Kleins’ take on it:
The Kleins sprinkled their critique with clips, which Hosseinzadeh said breached his copyright.
But in her judgement, New York district judge Katherine B. Forrest wrote:
“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.”
And Hila Klein described the claims as “bullshit” in the pair’s latest video.
The judgement doesn’t mean any YouTuber who liberally posts copyrighted clips is protected by fair use though.
Forrest added (emphasis ours):
“The Klein video is arguably part of a large genre of YouTube videos commonly known as “reaction videos.” Videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material. 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. Accordingly, the Court is not ruling here that all ‘reaction videos’ constitute fair use.“
Other well-known YouTubers rallied behind the Kleins’ case, with commentator Philip DeFranco raising more than $100,000 (£77,000) for their legal defence fund through GoFundMe. PewDiePie also congratulated the pair on their victory.
Big win for all of youtube!
— pewdiepie (@pewdiepie) August 23, 2017
Hosseinzadeh has not responded to a request for comment.