Free for a Fee

Plaintiff Matt Hosseinzadeh published a video skit featuring the “Bold Guy” character, “Bold Guy vs. Parkour Girl” video. Ethan and Hila Klein created a “reaction video” to it. Hosseinzadeh’s video is five minutes and twenty-four seconds. The Kleins used three minutes and fifteen seconds of it to create their fourteen minute-long video. The Kleins’ video that sparked the lawsuit is embedded below:

In addition to a copyright claim, Hosseinzadeh sued over the Kleins’ allegedly misleading DMCA counter-notice and their statement about the lawsuit. The Kleins win summary judgment in an emphatic ruling.

Fair use: In looking at the first factor, the court highlights various aspects of the Klein video that contain criticism and comment:

• Ethan Klein remarks that the Bold Guy “comes from . . . an older day ofYouTube,” and refers to plaintiff as “the king of cringetube.”
• Ethan Klein mocks the video’s opening title sequence and mimics the movement of the words by performing a dance in his seat.
• After watching what they apparently consider a lewd and unrealistic opening sequence, defendants point out that plaintiff wrote the script, andEthan Klein remarks “this is how Matt Hoss sees the world and it says more about him than it does about anyone else.”
• Defendants sarcastically compliment the “sleeveless hoodie” that Bold Guy wears, calling it “one of the classiest . . . pieces of clothing you can own.”
• Defendants mock the fact that plaintiff included a line in the script complimenting his own “strong shoulders.”
• Hila Klein expresses irritation with the female character, stating “the female characters [in Bold Guy videos] are always so annoying, and he writes them like that.”
• Defendants engage in extended criticism and mockery of the female character’s statement “catch me and I’ll let you do whatever you want to me.”
• Defendants mock plaintiff’s parkour ability, sarcastically stating that plaintiff “thinks he’s . . . a parkour expert.”
• Ethan Klein criticizes a scene in which Bold Guy rapidly moves from one location to another, stating that the scene “broke [the] realism” of the video.

The second factor weighs against fair use because the work is creative. As to the third factor, the court says that the Kleins’ use of the work was perhaps extensive, but was necessary to achieve their intended commentary and critique. The fourth factor weighs in favor of fair use as consumers of one will not view it as a substitute for the other:

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

DMCA Misrepresentation: The court’s conclusion on fair use definitively answers the DMCA misrepresentation issue. The Kleins’ counternotice was necessarily supported by a good faith belief that their video was not infringing. Even if the court went the other way on fair use, it says it would grant summary judgment on the DMCA misrepresentation claim.

Defamation Claim: Plaintiff asserted a defamation claim based on the Kleins’ commentary and video about the underlying litigation. The court says the Kleins’ “lawsuit video” is full of opinion (e.g., “I think that the heart and soul of this is . . . he doesn’t like that we made fun of him, and so he’s suing us”). The Kleins made a statement about the timing of the litigation and settlement discussions. Plaintiff argued that the Kleins’ not-totally-accurate portrayal of the timing is defamatory because it portrays plaintiff as a “trigger-happy litigant who immediately activates his lawyers when he is criticized.” [Lawyering note: I’m not sure that’s a great choice of framing in a case involving a reaction video over which plaintiff sued.] Ultimately, the court says that the Kleins’ description of the lead-up to the litigation is either substantially true or omitted facts which would not have led a reasonable listener to a different conclusion.

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Case Citation: Hosseinzadeh v. Klein, 1:16-cv-03081-KBF (SDNY Aug. 23, 2017)

The content in this post was found at http://blog.ericgoldman.org/archives/2017/08/reaction-video-protected-by-fair-use-hosseinzadeh-v-klein.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.