‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein

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.


A blog post on a similar case is here: “Commenting on Viral Video Is Fair Use–Equals Three v. Jukin Media“. The copyright claims in that case ultimately went to trial and settled after the jury rendered its verdict (which was filed under seal). In an interview with the Hollywood Reporter, one juror anonymously said that the verdict would have been a unanimous “no” against fair use: “YouTube Trial: Juror Says YouTuber’s Incorporation of Unlicensed Clips Is Not Fair Use“.

The two cases are slightly different in that Equals Three did a round up of viral videos, while here the Kleins are responding to a particular video and doing so in a critical way. The court drops a footnote saying that its opinion should not be interpreted to give the fair use stamp of approval on all “reaction videos,” but it’s tough to not interpret this as a definitive win for this genre.

The core of Hosseinzadeh’s claim, as the Kleins note, is that he does not like being made fun of. And that’s never a good basis to sue. We’ve blogged numerous cases where plaintiffs take to the court system after being criticized online (often asserting copyright claims). Courts are not very receptive to these lawsuits.

Interestingly, the lawsuit had a gofundme page which surpassed its fundraising goal of $100K.

Eric’s Comments: The Kleins’ video had a few lightly amusing moments, but honestly, who has time to watch videos like this? Maybe it’s a generational thing (i.e., “those damn millennials”), but spending 15 minutes to watch the deconstruction of 3 minutes of someone else’s obviously amateurish video was only mildly entertaining and certainly didn’t enrich my life in any other way. While the reaction video relegated the underlying video to YouTube’s “cringetube” days, future folks probably will consider the Kleins’ reaction video as an artifact of a YouTube era of self-absorbed meta-commentary. (At least, I hope the marketplace eventually will evolve so that reaction videos like this become passe).

The court’s discussion about 17 USC 512(f)’s scienter standards for DMCA 512(g)(3) counternotices seems novel to me. (Indeed, the only prior 512(f) lawsuit based on a 512(g) counternotice I can recall is the Shropshire v. Canning case). Courts have interpreted 512(f) to say that so long as the takedown notice submitter subjectively (and in “good faith,” whatever that means) believes the notice targets infringement, the takedown notice isn’t actionable. This court turns the standard around and says similarly that so long as the counternotice submitter has a subjective “good faith” belief that their content is legitimate, the submission of a counternotice won’t violate 512(f). If those subjective beliefs are wrong, the counternotifier will still face the full risk of copyright infringement, but at least there won’t be a bonus/pile-on risk of 512(f) liability.

Case Citation: Hosseinzadeh v. Klein, 2017 WL 3668846 (SDNY Aug. 23, 2017)

Related posts:

Another Censorious Copyright Case Results In a Big Fee Shift–Inglewood v. Teixeira

Griping Blogger Can Show Photo Of Griping Target–Katz v. Chevaldina

9th Circuit Sides With Fair Use in Dancing Baby Takedown Case

Use of Iconic 9-11 Photo in TV Show’s Facebook Stream Not Fair Use

Top 10 Fair Use Cases of 2014 (Guest Blog Post)

Fair Use Protects Sending Expert Witness’ Resume to Opposing Counsel–Devil’s Advocate v. Zurich Insurance

Copying Blogger’s Posts In Disciplinary Proceeding Is Fair Use–Denison v. Larkin

Fair Use Likely Protects Discussion of Blog Post and Comments

Another Blogger Wins a Fair Use Defense For a Photo–Leveyfilm v. Fox Sports

Republishing Litigation Brief Is Fair Use–White v. Westlaw

Fair Use Protects Video Republication To Demonstrate Speaker’s Inconsistent Statements–Caner v. Autry

Why Google’s Fair Use Victory In Google Books Suit Is A Big Deal–And Why It Isn’t (Forbes Cross-Post)