Fair Use: YouTubers Claim Copyright Infringement Lawsuit Against Them is a Goof

KleinsBy Jeff Bess

YouTube has come a long way in the decade since its founding as the Internet’s hub for one-off viral clips and cat videos. As of last month, YouTube reported that it reaches more viewers in the coveted 18-49 age group during primetime than the top ten TV shows combined. This is due in large part to the vibrant community of original content creators – some of whom individually drive enough traffic to make themselves millionaires – that host and share their videos on YouTube’s platform.

YouTube’s explosive growth as commercial and expressive medium has naturally brought with it a greater likelihood of legal disputes, particularly with respect to copyrights. Take for instance popular YouTubers Ethan and Hila Klein, the couple behind the comedy channel H3H3 Productions. They have built a following of nearly two million subscribers by making videos commenting on and making fun of other YouTubers’ videos. A typical H3H3 Productions episode finds Ethan sitting in front of his computer wearing a red thrift store beanie and poking fun at the “goofs and gaffs” in the subject video. Interspersed with his commentary are clips from the subject video, oftentimes edited to exaggerate the look or sound of the clip being discussed. It is all in good fun and Ethan and Hila have even met some of their subjects (or “living memes”) in real life to collaborate.

One subject of a recent H3H3 Productions video, Matt Hoss (“The Bold Guy” who makes videos of himself picking up women using his parkour skills), was not amused – and filed a lawsuit against the Kleins alleging copyright infringement for including clips from his video. H3H3 Productions publicly stated that they intended to fight the lawsuit on the grounds of fair use. Fair use is a legal doctrine that permits use of copyrighted material depending on: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; (4) the effect on the value of the copyrighted work. Setting aside the precise, fact-specific questions about the exact parts of The Bold Guy’s video featured in H3H3 Production’s video, the Klein’s kind of satire and criticism is generally considered fair use. The rub, however, as Ethan and Hila discovered, is that fair use is an “affirmative defense” that must be proven at trial. That means that, even if they were to prevail, they would have to incur the huge fees associated with a protracted legal battle, which their attorney estimated to be in excess of $100,000.

In most cases, this is the end of the story. Very few people, even successful YouTube “celebrities”, can afford to defend themselves against a serious copyright infringement lawsuit. Proponents of expanding the doctrine of fair use point to this economic burden and the potential chilling effect it could have on creators’ expressive freedom as evidence of a need to expand protections for creators. That must be weighed, of course, against original creators like The Bold Guy’s legitimate interest in their original works. Indeed, this need to balance competing, overlapping interests is part of why copyright infringement litigation is so complicated and so costly.

Luckily for the Kleins, this was not like most cases. In less than one day, nearly $150,000 was raised by hundreds of people – including a number of YouTubers Ethan and Hila had previously skewered – to cover H3H3 Productions’ legal fees. In partnership with their attorneys, Morrison/Lee of New York, the Kleins put the money into a trust account called the “Fair Use Protection Account” (or “FUPA”) to help cover other content creators’ legal fees in similar situations. According to the official FUPA Twitter account, Morrison/Lee has already received dozens of requests for assistance and, as of last week, are on the verge of officially filing as a registered nonprofit. Whatever the outcome or merits of the Kleins’ case, the decision to litigate the case the move to create the FUPA to provide future support, it is a potentially exciting time for YouTube content creators afraid of frivolous copyright claims.

Image Source: YouTube and H3H3 Productions

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