Protecting Fair Use in YouTube Reaction Videos

In late August of this year, the United States District Court for the Southern District of New York issued a landmark ruling in the running debate over what constitutes fair use of internet video content. The case, Hosseinzadeh v. Klein,1 concerned the emerging genre of “reaction videos,” which intersperse segments of another creator’s content with criticism and commentary to create new content.2 Reaction videos have become extremely popular on sites such as YouTube, with view counts (and accompanying ad revenue) that often far exceed the original work they comment on. For example, the Fine Brothers Entertainment YouTube channel boasts over sixteen million subscribers, and has garnered 5.7 billion views, predominantly driven by their “REACT” video series.3

The Klein case is the first to deal with the copyright status of reaction videos, and became a highly publicized issue within the YouTube community. In short, Matt Hosseinzadeh, the creator of the MattHossZone channel, uploaded a five minute, twenty-four second video titled “Bold Guy vs. Parkour Girl,”4 a continuation of a series in which a fictional character known as Bold Guy pursues various women. Ethan and Hila Klein, the creators of the H3H3 Productions channel, uploaded a thirteen minute forty-seven second long, strongly critical reaction video, “The Big, the BOLD, the Beautiful.”5 The reaction video interspersed clips from Hosseinzadeh’s video with commentary by the Kleins, much of which criticized the Hosseinzadeh video for its allegedly misogynistic and “quasi-pornographic” nature.6 Hosseinzadeh issued a Digital Millennium Copyright Act (DMCA) takedown notification to YouTube, which removed the Klein’s video. The Kleins submitted a DMCA challenge notification, claiming their video was fair use and non-commercial.7 Hosseinzadeh then sued, claiming copyright infringement, DMCA misrepresentations, and defamation.8 After discovery, both parties moved for summary judgment. Judge Katherine Forrest ruled for the Kleins, dismissing all three counts.9

The court analyzed and applied the four statutory factors10 of a fair use defense vis-a-vis reaction videos, essentially issuing a blueprint for other reaction videos to avoid copyright infringement. The court’s holding contained three key findings on the nature of reaction videos, the amount of the original work that it is appropriate to use, and whether a reaction video, particularly a critical one, can destroy or usurp the market for a copyrighted work. The first and most important factor is the purpose and character of the use, and the court held that the Klein’s video was “quintessential criticism and comment”11 which is a “classic example of fair use.”12 The court assessed the “amount and substantiality of the copyrighted work used,”13 weighing the amount of Hosseinzadeh’s protected content used against the valid purpose of the Klein’s video. The court emphasized that while the Kleins had used the three minutes and fifteen seconds of the five minute and twenty-four second video, the amount taken was “reasonable to accomplish the transformative purpose of critical commentary.”14 Finally, the court held that the reaction video had not usurped the demand for the original copyrighted work because the two videos would be watched for wildly different purposes, and therefore as long as a reaction video does not “‘offer a substitute for the original,’ it does not (and indeed cannot) ‘usurp a market that properly belongs to the copyright holder.’”15 Essentially, as long as reaction videos follow the court’s blueprint and intersperse relatively short segments of another’s work with criticism and commentary, rather than acting as a sort of group viewing session, reaction videos will avoid infringing on copyright protections.

The Klein case became a major flashpoint in the new media community, and is a significant step in clarifying the rules for appropriate behavior in a landscape where content creation and dissemination is more accessible than ever before. Creators who run into legal issues do not have the deep pockets of the traditional media industry, and are often bullied into settlements to avoid crippling legal expenses. While supporters raised $170,000 to finance the Kleins’ legal defense on a GoFundMe page started by fellow YouTube creator Philip DeFranco, 16 other creators may not be able to marshal the same kind of support. The Klein ruling goes a long way towards delineating fair use doctrine in evolving media, and will hopefully result in a safer and more predictable environment for content creators.