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YouTube “Reaction Video” Deemed Fair Use

September 01, 2017
Post by Nicholas J. Krob

Much of the YouTube community breathed a sigh of relief last week as a New York federal court dismissed a lawsuit that had been brought against two of YouTube’s most popular personalities.

On April 26, 2016, Matt Hosseinzadeh filed suit in the U.S. District Court for the Southern District of New York against Ethan and Hila Klein of “H3H3 Productions,” alleging, among other things, that the YouTube giants infringed Hosseinzadeh’s copyrights. The basis for this claim stemmed from a video Ethan and Hila had made critiquing an earlier video made by Hosseinzadeh. 

Ethan and Hila Klein's video is an example of what is commonly referred to on YouTube as a “reaction video,” wherein someone makes a video of themselves reacting to and/or commenting on another video. In the video at issue, it showed clips of Hosseinzadeh’s video, stopping it throughout to provide humorous commentary and critique.

On August 23, 2017, the court issued an order granting Ethan and Hila's motion for summary judgment. Regarding the claimed infringement, the court explained that their video constituted fair use as a matter of law. This was largely because the video was deemed to be “quintessential criticism and comment,” which the court noted are both “classic examples of fair use”. Additionally, the court deemed their video to have transformed the original video into something new, distinguishing it from a “market substitute” for the original. After all, as the court explained, viewers of the two videos would have very different experiences.

The court’s ruling that a video commenting on and “mocking” another video may constitute fair use is a notable win for many content creators on YouTube, as well as advocates for fair use and free speech. However, the court was sure to narrow the scope of its ruling, explaining that videos within the “reaction video” genre “vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material” and thus do not all constitute fair use.

Nicholas Krob is an Intellectual Property Attorney in the Litigation Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Nick directly via email at nicholas.krob@ipmvs.com.

 




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