Hosseinzadeh v. Klein, 16-cv-3081 (S.D.N.Y. 2017)
Popular YouTube personalities Ethan and Hila Klein were granted a motion for summary judgment after being sued last May for criticizing and commenting on another video by Youtuber Hosseinzadeh. Hosseinzadeh’s video portrays a fictional character known as “Bold Guy” that flirts with a woman and chases her through various situations. On their own YouTube channel, the Kleins comment and discuss the Bold Guy video, playing and stopping segments to criticize and ridicule it. In April of 2016, Hosseinzadeh submitted a DMCA take down notification to YouTube for the Klein’s video, which YouTube then removed from the site. The Kleins challenged the take down with a DMCA counter notification on the basis that the video was fair use. Hosseinzadeh then sued for copyright infringement and defamation.
To determine whether critical commentary on a YouTube video constitutes copyright infringement, the court considered the four fair use factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The New York court considered the first fair use factor, whether the use of the video segments was “transformative,” most important and discussed how courts have regularly found fair use after determining the purpose or character of an allegedly infringing work to be criticism or comment. The court held that “[t]he Klein video is quintessential criticism and comment . . ..” After further analyzing the remaining fair use factors, the Court held that the Klein video was fair use and granted the Klein’s summary judgement motion.
Many YouTube personalities and critics have seen this as an important fair use victory for popular “reaction videos,” where people use another Youtuber’s content as a basis for commentary. Importantly, the district court in this case focused on protecting commentary; inferring that just re-posting another’s work without substantial commentary or “reaction” may likely not be considered fair use. The judge noted: “[s]ome 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.”