Ethan and Hila Klein of h3h3productions win landmark fair use case

Ethan and Hila Klein, of h3h3productions, win their legal battle against Matt Hoss.

Nearly a year and a half after their legal battle began, a New York judge has ruled in favor of Ethan and Hila Klein (h3h3productions) in their defense against a lawsuit brought on by Matt “Hoss” Hosseinzadeh (MattHossZone).

The case began in May of 2016, when Hoss filed a lawsuit against the Kleins alleging copyright infringement over their use of content from MattHossZone’s channel in a reaction video. Hoss was seeking the immediate removal of the infringing content and just under $4,000 to cover attorney fees. The Kleins, believed to be protected by the legal doctrine of fair use, decided to fight the case. The YouTube community threw their full support behind the Kleins, raising over $170,000 in a GoFundMe championed by Phillip DeFranco to cover their expected legal fees.

To expedite the decision process and avoid months of legal fees (the Kleins racked up $50,000 in the first month alone), both parties asked for summary judgement from the court, instead of taking the case to trial.

District Judge Katherine B. Forrest examines four points in application of the fair use rationale: the purpose and character of the use, the nature of the copyrighted work, the amount and substanciality of content used in relation to the original work, and the effect of the use on the market value of the original work. Forrest found that:

  1. The h3h3 video provides critical commentary. “Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video.” Forrest goes on to say that Ethan and Hila’s video is “roughly equivalent to
    the kind of commentary and criticism of a creative work that might occur in a film
    studies class.” — Points: h3h3.
  2. The Hoss video is a fictional or creative work protected by copyright law. Here, she gave the win to Hoss, but notes that this factor is “rarely found to be determinative.” — Points: Hoss.
  3. The h3h3 video uses a combined 3 minutes and 15 seconds of the original 5 minute 24 second long work. The Klein video “intersperses relatively short segments of the Hoss video with long segments of the Kleins’ commentary.” — Points: h3h3.
  4. The h3h3 video is not a substitute for the original work. “It is clear to the Court that the Klein video does not serve as a market substitute for the Hoss video; anyone 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.” — Points: h3h3.

Forrest ultimately ruled that the “defendants’ use of clips from the Hoss video constitutes fair use as a matter of law,” and that the plaintiff – Hoss – had lost the case.

It is not immediately clear whether the Kleins will be able to recover their legal fees from Hoss, who still retains the right to appeal, though likely won’t due to the thorough examination and breakdown of the case by Forrest.

In a footnote, Forrest makes an important distinction about the general application of this ruling to other reaction videos.

“The Klein video is arguably part of a large genre of YouTube videos commonly known as “reaction videos.” Videos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material. Some 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.

While it’s important to keep in mind that each case is different and reaction video creators should tread lightly, the win for h3h3 is a win for the entire YouTube community.