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Fair Use on YouTube: The H3H3Productions Copyright Case

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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One of the most beautiful things about YouTube is that it makes the world a smaller place. You realize that we're all different, but we're all the same.

Lilly Singh

It would be difficult to come across someone with access to the internet that is not aware of the online giant that is YouTube. The website – following rapid growth and success since being founded in 2005 – has become the dominant online video-sharing platform; statistics show that it is the second-most visited website on the internet, beaten only by the search engine Google.

This growth, however, has not come without difficulties. Being the first of its kind to reach this level of success in the world of online content production has resulted in YouTube having to take the initial step in establishing a secure and effective procedure to deal with copyright claims. This system has finally been put to the test by the law following the American case of Hosseinzadeh v Klein [2017]. As this article examines, the trial is certainly worth considering due to its implications on the ability of content users to comment critically on the work of others, and its highlighting of the considerable similarities between the American doctrine of ‘fair use’ and English’s law permitted act of ‘fair dealing’.

Hosseinzadeh v Klein

Compared to some intellectual property cases, the facts of Hosseinzadeh v Klein [2017] are fairly straightforward. Ethan and Hila Klein are the personalities behind the successful YouTube channelh3h3Productions’, which – at the time of writing – has over 4.7 million subscribers. Their channel is predominantly focused on creating ‘reaction videos’, in which they watch and react to popular, unusual or uncomfortable videos on YouTube while making jokes and giving commentary on what they are watching.

This case specifically involves their video ‘The Big, the BOLD, the Beautiful’, in which the Kleins watched and mocked Matt Hosseinzadeh’s video ‘Bold Guy v Parkour Girl’, showing clips of the latter’s video to aid the enjoyment of their viewers. Following this, Hosseinzadeh filed a law suit against h3h3Productions, accusing the latter of copyright infringement for the footage they used, misrepresentation in their claims that they believed they were entitled to use the footage under fair use, and defamation for their comments about Hosseinzadeh’s actions after the video was uploaded.

The significance of this case is that it is the first instance of a copyright claim going to court over videos on YouTube that use clips made by other content creators. Presumably, this rarity is due, at least in part, to the exorbitant costs of trials at court – the costs incurred by the Kleins were in the hundreds of thousands of dollars, which were fundraised from contributions made by fans and other content producers on YouTube. This can be contrasted with the value gained by the Kleins from monetisation of their offending video through the placement on advertisements on it, which they stated was only several hundred dollars. Despite this drastic difference in value and costs, the Kleins stated that they fought the case in order to ensure the protection of fair use on YouTube, as well as to deny the possibility of a precedent being set in which copyright claims can be used to bully others with threats of costs reaching hundreds of thousands of dollars if the claim is not adhered to.

District Judge Forrest of the New York District Court ruled in favour of the Kleins on all three claims. The copyright infringement claim is most relevant for present purposes, which Judge Forrest ruled was not valid as the h3h3Productions video had contained 'quintessential criticism and comment' and thus fell under the protection of fair use. Before going further into what the judgment consisted of, it is important to first consider the legal devices of fair use and fair dealing, comparing the American system with that used in England.

Fair Use and Fair Dealing

The American Doctrine of ‘Fair Use’

In American law, fair use is a defence to copyright infringement provided under Section 107 of the Copyright Act 1976 that allows non-licensed use of another’s work for 'purposes such as criticism, comment, news reporting, teaching, scholarship, and research'. In determining whether the use of a work in any particular case is fair use, courts must consider the following non-exhaustive factors:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.

As held in the case of On Davis v The Gap, Inc. [2001], the ‘heart of the fair use inquiry’ is the first factor – whether the use is ‘transformative’ by ‘add[ing] something new, with a further purpose or different character”. Further, in Campbell v. Acuff-Rose Music, Inc. [1994], the court held the central purpose of the inquiry is to see:

whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.

For this to be the case, it was held in Authors Guild V. Google, Inc. [2015] that the new work must do something more than just ‘repackage or republish the original copyrighted work’.

In contrast, the second factor is rarely found to be determinative. As explained in On Davis v The Gap, Inc. [2001], it calls for recognition that a work that is ‘in the nature of an artistic creation’ falls close to the core of copyright protection – a finding of fair use will thus be less likely where the copyright work was fictional or creative.

The third factor requires courts to consider, as explained in TCA Television Corp. v. McCollum [2016], ‘not only the quantity of the materials used but also their quality and importance” – the extent of permissible copyright therefore varies with the purpose and character of the use.

TCA Television Corp. v. McCollum [2016] also identified the fourth factor to the doctrine, which focuses on whether the secondary use ‘usurps demand’ for the copyright work by serving as a ‘market substitute’ – the court must therefore distinguish between what was described in Campbell v. Acuff-Rose Music, Inc. [1994] as ‘biting criticism that merely suppresses demand, and copyright infringement [that] usurps it’. Where the allegedly infringing work is not properly considered a “market substitute” for the allegedly infringed work, the fourth factor will weigh in favour of the defendant.

The English Permitted Act of ‘Fair Dealing’

By comparison, the English ‘fair dealing’ approach is not a defence per se, but instead a ‘permitted act’. The main objective of permitted acts in English copyright law is to balance the interests of copyright owners with the public interest of having access to the works. To achieve this, by combination of the Berne Convention, TRIPs Agreement and the Information Society Directive, there is a well-established principle of proportionality imposed over claims of fair dealing. This provides, we can assume, that a legitimate objective was pursued by the defendant as long as it was only pursued so far as it is necessary to achieve that objective without adversely affecting the copyright owner.

For fair dealing to apply, the defendant must demonstrate two things. Firstly, that they dealt with the copyright work, which can be put in simpler terms as them ‘making use of it’. This will only be the case where the use was for one of the following reasons, listed under the Copyright, Designs and Patents Act 1988 (CDPA 1988):

If the copyright work is used for a reason other than those above, fair dealing will not apply, as confirmed by Laddie J in Pro Sieben Media v Carlton UK Television [1999] 1 WLR 605. This can be contrasted with the American fair use defence, which contains no express limitation on the purposes sought by the defendant.

The relevant reason for the use of ‘Bold Guy v Parkour Girl’ would be, under English law, criticism or review under Section 30(1) of the CDPA 1988. An example of fair dealing protecting such criticism and review can be seen in the case of Fraser-Woodward Ltd v BBC & Brighter Pictures Ltd [2005], where the court found that the use of photographs of celebrities in a programme discussing the relationship between celebrities and the media was valid for the reasons of criticism and review.

Secondly, the defendant must show that their use of the work was ‘fair’. There is no precise guideline as to when the dealing will be fair, though there are a number of factors that may influence the courts. A variety of case law holds that these include, inter alia, whether the work was previously published/unpublished, the extent of the work copied, the impact the dealing has on the market of the original work, and any commercial benefit obtained from using the work.

The Judgment

The judgment in Hosseinzadeh v Klein [2017] given by Judge Forrest shows an interesting insight into how such copyright infringement cases are determined. The court proceeded through the four fair use factors provided above in numerical order, commenting as follows.

In regards to the first fair use factor – purpose and character of the clips used – it was stated that the odds were weighed ‘heavily in defendants’ favour’ as the Kleins’ video contained ‘quintessential criticism and comment’. A long list of examples of their criticism and comment were then given, ranging from Mr Klein ‘sarcastically compliment[ing] the sleeveless hoodie’ that Bold Guy wears, calling it ‘one of the classiest … pieces of clothing you can own’ to describing Mr Hosseinzadeh as “the king of cringetube’.

Moving onto the second factor – THE nature of the copyrighted work – the court found in favour of Hosseinzadeh, on the grounds that his video was a ‘creative work’. In doing so, the defendants’ argument that his skits were factual due to them drawing inspiration for the character ‘Bold Guy’ from his own experience and personality was rejected: the point was made that if creative works were ‘deemed nonfiction whenever an author relies on his … own experience, the fiction genre would be defined almost entirely out of existence’.

For the third factor – the amount and substantiality of the copyright work used – the court held that, though a large portion of Mr Hosseinzadeh’s video was shown in the Klein video, this was not a reason for fair use to fail. Instead, the court made reference to multiple judgments – including Abilene Music, Inc. v. Sony Music Entertainment, Inc [2003] – in which it had been found that clips may be used so as to allow the secondary creator to comment on them: ‘[a] parody must take recognisable material from the original in order to convey its message’.

Thus, without using actual clips, ‘the commentary and critique here would lose context and utility’, with the ‘extent’ and ‘quality and importance’ of the video clips used being reasonable to ‘accomplish the transformative purpose of critical commentary’. This is incredibly important – it is not the quantity of the copyright work used, but instead the context in which it is used that is relevant for the purposes of fair use.

Finally, the fourth factor – the effect of the Klein video on the original’s market – was also found to weigh in favour of the defendants. The Klein video was not found to serve as a market substitute for Mr Hosseinzadeh’s video due to the fact that, in the view of Judge Forrest:

[A]nyone seeking to enjoy “Bold Guy v Parkour Girl” on its own will have a very different experience watching the Klein video, which responds to and transforms the Hoss video from a skit into fodder for caustic, moment-by-moment commentary and mockery.

It should be noted, however, that the judge was careful to ensure this judgment, though finding in favour of the defendants, did not mean that all videos that use clips from a copyright work as part of their own product would thus fall under fair use. It was stated ‘[v]ideos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material’, with some videos being akin to a ‘group viewing session without commentary’, compared to the Klein video, which instead ‘intersperse[d] short segments of another’s work with criticism and commentary’.

Conclusion

The judgment in Hosseinzadeh v Klein [2017] brings to light the differences in approach between the American and English versions of what appears to be, in effect, the same legal mechanism. Indeed, it is noticeable that, though fair dealing and fair use aim to strike the same balance between right holders and users, their development has differed. For example, the American legislation uses one section to establish the fair use principle and leaves the courts to strike the balance via its application, whereas in England (and much of Europe) the balance is struck by the legislators themselves through the comprehensive list of permitted acts.

As a result of this, the trouble with fair dealing, is that it is not dynamic over time; instead, it is punctuated by legislative reassessment. Developments in technology have required time-consuming provisions and amendments, such as the Information Society Directive, which can still struggle to keep up with the advancements of industries. This can be seen from the difficulty in establishing whether the time-shift exception in relation to digital video recordings (DVRs) were valid or not due to changes in definitions such as ‘broadcasts’ to keep up with technology.

Despite this difference, however, there are substantial similarities between the fair use and fair dealing doctrines – both list a variety of reasons why unlicensed use of a copyright work should be permitted (though the English approach has a closed list of such reasons) and both require the court to consider a number of factors when establishing whether such a use was ‘fair’. Due to such similarities, Hosseinzadeh v Klein [2017] – despite being American – is certainly worthy of note in the United Kingdom: it demonstrates an acceptance that humanity is entering into an age in which amateur creators are acquiring the audiences of big-budget professionals and should therefore be entitled to the same legal protection as their high-profile counterparts.

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Tagged: Commercial Law, Defamation, IP, Intellectual Property, Litigation, Media, Technology

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