Nowadays we live in a new era of comedy where copying a comedian’s work can seem like removing money from his pocket. Needless to say, this is the sort of situation where the aggressor can expect some pretty hard pushback. Yet, as comedian Matt Hoss (full name: Matt Hosseinzadeh) learned not that long ago, just because a comedian thinks that somebody else has crossed the line does not make it so – at least as far as the law is concerned.
Now, here’s what happened: In May 2016, the edgy comedian Matt Hoss (aka “The Bold Guy” or the “Pick-Up Artist”), filed a copyright violation case in federal court in Manhattan against Ethan and Hila Klein, the producers of the YouTube Channel H3H3 Productions. Hoss essentially alleged that the Klein duo by taking way too much of the contents of his earlier video titled “Bold Guy vs Parkour Girl” for inclusion in their latter reaction video (a 13-minute work which sought to satirize his said earlier video) had thereby committed a violation of his copyright in the video. Hoss’s lawsuit also tagged on some less significant claims against the Kleins, including defamation.
After the Klein team, a married duo, got word of the lawsuit out to their more than four million subscribers, they responded by floating a GoFundMe campaign that reportedly netted over $160, 000 for the Kleins’ legal defense of Hoss’s lawsuit. The cause celebre here? Well, it’s “fair use” concerns on YouTube.
Explaining his lawsuit Hoss claimed: “You can essentially watch my film by watching their video. That frustrates the entire point of copyright. Critiquing or commenting on a film should not, and almost always does not, use virtually the entire work.” Well, let’s just say the court didn’t see it that way; otherwise, Hoss would have had a better day in court rather than a big defeat.
Indeed, the decision of the federal court in the case turned out to be a big win for the “fair use” folks and their crowdfunding campaign: In late August, the court ruled that H3H3’s actions were protected under the “fair use” doctrine. The judge explained that a review of H3H3’s reaction video showed that it amounted to a critical commentary upon the Hoss video and that it was not a market substitute for the Hoss video, contrary to Hoss’ claim that one can watch his film by simply watching the reaction video.
To be sure, the defeat of Hoss’ lawsuit isn’t at all surprising. In a place like America where the First Amendment is a big deal and offers protections to both comedians and non-comedians alike, a doctrine like “fair use” serves as an important tool for the promotion of free expression and debate in the public square. Some critics, though, who perceive H3H3 as bullies, have frowned upon the fact that even sometimes spiteful actors like the Kleins are granted free speech protections for their offensive work. But, oh, well, this is America and the First Amendment is just doing its job in our national conversation. In this copyright context, this means that a person using somebody else’s copyrighted work doesn’t necessarily need the permission of the owner of the earlier work. Nor does the person have to say something nice about the earlier work. They can be as snarky as they want to be. As a matter of fact, such a person is protected as long as he is traveling along the lane of commentary upon or critique of the said work.
Anyhow, from the court’s decision, it is clear that Hoss fell into a common error among copyright plaintiffs regarding the exact extent of the copyright protection that their work enjoys. The problem is made worse by the fact that assessing a doctrine like “fair use” in any litigation is typically a “fact-intensive” inquiry, as the lawyers would say. It is generally a case-by-case situation, meaning that no set-formula exists beforehand for making the call in each case. So, one thing to keep in mind is that just because somebody has copied another person’s copyrighted work for inclusion in their own production does not mean that they’ve run the red light yet. Not even in a situation where the second work has copied a whole lot from the first work, as noted above. As the court made clear, the second work is allowed to use as much of the first work as is necessary to accomplish what the court called the “transformative purpose of critical commentary” of the first work.
In practical terms, determining how much is needed for such purpose depends both on the “context” of the work and the “utility” of the portion copied. In plain language, the second person is allowed to copy as much as he needs in order for the portion copied from the first work to make sense in the second work; of course, by itself the second work now represents a transformation of the first work. Incidentally, speaking of “reaction videos” in a battle between YouTube channels, it bears noting that if the second work simply copied and presented the first work to its viewers with very little or no commentary or criticism of the first work, then it’s difficult to say that it is a “transformation” of the first work.
In such a situation, where no transformation is present, the second work would be putting itself in situation where it literally becomes a substitute for the first work in the market place. In our case here, it would mean that folks looking to watch Hoss’s video might as well just watch H3H3’s video instead. This sort of situation is a no-no and goes against the very purpose of copyright protection. If that would have happened in this case, it would have resulted in a likely win for Matt Hoss. But the court said it didn’t.
As noted above, Hoss also made a few other claims that were less of a big deal in this case, including the claim of defamation which were decided against him. For instance, the defamation claim was simply tossed out because the statements he alleged as defamatory toward him were ruled as pure statements of opinion by Ethan Klein which had no basis in fact. The actual meat of his case was always the copyright claim.
In the end, the simple lesson here is that copyright protection is not intended to give the owner absolute dominion over the copyrighted work, meaning that not every case of copying amounts to a copyright violation. When the second work can be said to represent a transformation of the first work, there likely is no violation. But whether or not lawful transformation has occurred in each situation is a matter for the courts to decide on a case-by-case basis, as explained above. Yet one thing is for sure: someone who is simply lifting somebody else’s work without adding anything to it is, well, probably running the red light of copyright law.