Legal Standard: Defendant
The case brought against Hila and Ethan Klein was one of fair use. In order for usage of Hosseinazadeh’s content to be under the doctrine of fair use, there needs to be an evaluation of the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. In the evaluation of the purpose and character of use, courts will look at whether it is of commercial use, nonprofit educational purposes, commentary and criticism, or parody. Those that are of nonprofit, commentary or parody uses are more likely to be found as fair use. The judge will additionally look at the issue of “transformative use.” “Transformative” uses meaning that the original work was changed, or something new to the work, whether it be in the message or purpose. Next, the court will judge the amount and substantiality of the portion taken. The length of the original work will be taken into consideration in relation to the copyrighted work as a whole. The final step is an assessment of the effect of the use upon the potential market for or value of the copyrighted work. If the value of the originality of the copyrighted work is decreased, then it will not be found as fair use. Whether or not the owner is deprived of income. This can be difficult to evaluate because there is not a specific method that can be used to determine what the effect on the market was. It can be evaluated metrically in terms of sales, views, or subscribers. There is also a De Minimis Defense, essentially stating that that the amount of the copyrighted work used is too small to determine whether it is fair use or not.
Application: Defendant
In order for the defendant’s, Hila and Ethan Klein, to win this trial, they must prove that the use of the original work in their video was in fact fair use. In order to successfully prove their case of fair use, they must adhere to the four statutes of fair use. The follow paragraphs will outline the facts of the case with the standards and statues of fair use.
The purpose and character of use: Since 2011, the Klein’s have produced comedic videos, lampoon and satire, criticism and commentary, and published them on their YouTube channel. The purpose of the “reaction video” was to comment and criticize the defendant’s original work. In the video, they make observations and comment on the acting, the script writing, the montage and motion sequence. They participate in “quintessential criticism and comment,” ultimately creating an evaluation equivalent to what you might find in a film class. This expression of free speech and commentary is legal under the First Amendment, and furthermore, is encapsulated within the grounds of fair use. Additionally, because of the nature of the work as a commentary, as opposed to the original work as a skit, the video is transformative. The Klein’s transformed the original work from a fictional skit to a play by play commentary and mockery. Subsequently, the two works are in two entirely different film genres.
The nature of the copyrighted work: Hosseinzadeh creates videos that are comedic on his channel, and “Bold Guy and Parkour Girl” is no exception. The video is a 5-minute skit that he wrote, filmed and posted on his YouTube channel, is fictional. Because it is not a factual work, a judge is unlikely to rule in favor of the Plaintiff under this standard.
The amount and substantiality of the portion taken: The defendants video is about 14 minutes long, with 3 minutes including clips and portions of the alleged copyrighted material. The alleged copyrighted material is shown with the defendant’s audio commentary overlaid. Approximately 21% of the defendant’s work contains the original video, and most of those clips have the defendant’s audio commentary overlaid. The original work being approximately 5 minutes. This is not a substantial amount in relation to the whole, the purpose being to add clips of the original work to sustain the commentary and review of the video. The clips that were used were reasonably used to illustrate the video commentary and mockery.
The effect of the use upon the potential market: Because the plaintiffs video is a commentary with added criticism and mockery, it does in no way stand as a market substitute for the original work. The viewer would not receive the same purpose or message from both the original and altered work. Furthermore, viewers will need to view the original work for the intent and purpose. The plaintiffs video acts strictly as a commentary and satire. Additionally, it provides exposure to defendant’s channel and does not detract viewership away from him.
In conclusion, based upon the facts and the application of the law, the Klein’s use of Hosseinzadeh’s video was in fact fair use and not copyright infringement.
Introduction: Plaintiff
We live in a world of creators, artists, inventors, and writers whose products both benefit, educate, and add diversity to our society. Copyright law, as a form of intellectual property law, protects “the original work of authorship,” including published work on the video platform YouTube. At the beginning of 2016, YouTubers Hila and Ethan Klein took over 60% of one of YouTuber Matt Hosseinzadeh’s video and put it in their own. Hosseinzadeh’s subsequently sued the owners of the YouTube channel, Hila and Ethan Klein, for copyright infringement. The Klein’s claimed they were operating on grounds of fair use. After a thorough review of the facts, I believe that the judge should rule in favor of the Plaintiff, Hosseinzadeh as the facts are compared to the standards of fair use.
Facts: Plaintiff
– On or about February 15, 2016 Hila and Ethan Klein (who produce comedic and satirical content on their YouTube channel h3h3productions) published a video on their YouTube channel virtually displaying all of Hosseinazadeh’s work.
– This was produced without license or permission from Hosseinazadeh.
– The infringing video feature Hila and Ethan Klein purporting to humorously discuss Hosseinazadeh’s work, but in fact reproduce all of Hosseinzadeh’s original work.
– The Infringing Video does not change the original work with an altered message or meaning.
– The Infringing Video does not offer a single substantive comment, criticism, or parody new to the original work.
– The Infringing Video used a still “thumbnail” image from Hosseinzadeh’s original work, specifically used by the Defendents to confuse viewers into thinking that by clicking on the link they would be taken to Hosseinzadeh’s original Work.
Legal Standard: Plaintiff
Application: Plaintiff
In order for the plaintiff, Matt Hosseinzadeh, to win this trial, he must prove that his video was not used on the grounds of fair use and is in fact copyright. In order to successfully prove his case, he must show that the use does not adhere to the four statutes of fair use. The follow paragraphs will outline the facts of the case with the standards and statues of fair use.
The purpose and character of use: Though the defendants claim that their use of the original video was for criticism and commentary purposes, the actual video does not adequately comment or criticize. It is in fact comedy. They make humorous remarks regarding the original video, laughing, and mocking the scenes. In its entirety, it is not criticism that would be equivalent to what one might find in a film class.
The nature of the copyrighted work: The defendant did not have any other rationale than to pace the plaintiffs work in their own commentary. They displayed nearly the entirety of the original video within their own work. The original video is scripted and fictional, written and directed by Hosseinzadeh.
The amount and substantiality of the portion taken: The defendant took about 60% of the original work and paced it throughout their video. Main sequence events, action, dialogue and the storyline in its entirely was used. This is copyright. The viewer would not have reason or need to refer back to the original video because the entirety of the storyline and sequence were in the defendant’s video, ultimately become a market substitute.
The effect of the use upon the potential market: As stated before, the viewer would not have reason or need to refer back to the original video because of the substantial amount used. It becomes a market substitute for the original video, and because YouTube is a means to monetize, the publishing of the defendant’s video ultimately deprives Hosseinzadeh from a means of income.
In conclusion, in order for creative and original works to be protected, a precedent must be set ruling in favor of the plaintiff. The evidence and law speak for themselves, the judge should rule that the use of Hosseinzadeh’s video in the Klein’s video is in fact fair use.