Readers may be aware of YouTube celebrity couple Ethan and Hila Klein, better known by their social media moniker @h3h3productions. They rose to Internet fame producing comedic “reaction” videos that ridicule and comment upon other Internet content, boasting 4.9 million subscribers on their YouTube channel. Not everyone laughed along though, particularly fellow YouTuber Matt Hosseinzadeh, whose own comedy video the Kleins mocked on their channel. Hosseinzadeh sued the Kleins for copyright infringement in April of last year for appropriating excerpts of his content in their reaction video.
U.S. federal Judge Katherine B. Forrest of the Southern District of New York recently granted summary judgment in favor of the Kleins, holding that fair use doctrine protects the Kleins’ mockery of Hosseinzadeh’s video. Although the Kleins used excerpts of Hosseinzadeh’s copyrighted work in their reaction video, Judge Forrest concluded: “Any review of the Klein video leaves no doubt that it constitutes critical commentary of the [Hosseinzadeh] video; there is also no doubt that the Klein video is decidedly not a market substitute for the [Hosseinzadeh] video.” The Kleins continue to produce comedy videos, although Hosseinzadeh’s channel appears to be on hiatus.
Takeaway: Advertisers should urge caution with the outcome of this case. Although a court concluded that the use by an individual was a fair use, advertising commercial speech may not receive the same protections.