Cashing in on Commentary: the Future of Fair Use



    Entertainment is a fluid industry that is constantly changing before our eyes. New platforms arise everyday to cater to new audiences, and wind up attracting some and confusing others. One medium that houses a multitude of different forms of entertainment is YouTube, the world’s most popular video hosting site. By now this website has become a household name, as anyone can post almost anything and gain an audience. With such a large number of videos comes a wide variance of genres, too. And with so many users, content creators are constantly looking for ways to remain fresh and unique on an ever growing platform.

    One genre of videos that has blossomed on YouTube in recent years are reaction videos. Hundreds if not thousands of YouTubers fall under this category, and each one puts their own spin on the genre. And while each creator puts a personal touch on their videos, all of these videos feature a youtuber commenting on somebody else’s content, whether it be critique or praise. Being a rather new trend, the legality of this has come into question. Is it fair to use someone else’s content to gain followers? Is it ok to say mean things about someone to rake in more views? These questions and more have been easier to identify thanks to a landmark lawsuit that just wrapped up last month when a big YouTuber criticized the wrong guy.

    In Feb. 2016, H3H3 Productions, a reaction video channel, posted a video criticizing Bold Guy, a comedy skit channel in which the bold guy in question seduces women with quick wit and parkour stunts. When Ethan and Hila Klein on H3H3 Productions took to Youtube to roast the antics of Bold Guy’s Matt Hoss, Hoss took them to court, arguing that the video reproduced too much of Hoss’s content in his video and that users were clicking on the video to watch Hoss’s content instead of H3H3’s added content. Ethan Klein claimed that Hoss’s reasoning was masking the fact that “he doesn’t like that we made fun of him and so he’s suing us.”

    The legal battle lasted over a year and cost the Kleins tens of thousands of dollars in legal fees to defend themselves. In order to win the case, the Kleins had to argue that their video was protected by the Fair Use Act, a bill introduced in 2007 that lessens the stipulations of copyright infringement. Basically, it allows creators to use someone else’s content to shape their own, as long as they are transforming it and adding something new, be it a critical analysis, a review, fodder for a comedy skit, etc. The bill was introduced to allow a creative outlet for smaller content creators and would stop large companies handing out copyright claims on anything with their content in it.

    H3H3 Productions wound up victorious in a decisive victory in late August when the judge ruled that “there is no doubt” that the H3H3 video altered Hoss’s video by inserting “critical commentary,” a form of expression that is fully protected by the Fair Use Act. This is a very important case as it sets a precedent for future instances like this. People cannot bully others to take down a video simply because they disagree with the content of the video. This ruling will discourage the taking down of videos on YouTube, and is not just a victory for Ethan and Hila Klein, but a victory for all content creators.