YouTubers Must Fight for Fair Use Protections Once Again
Not only does copyright law encompass the rubric for deciding who reserves the rights to produce certain works of art, it is also one of the most powerful forces of law on the internet— especially on platforms like YouTube.[1] With the increase in YouTube commentary channels, fair use has become a prominent issue for all creators.[2] Many viewers want to see their favorite creators’ reactions to popular events, news, and internet drama. One of the best ways to format a video, for entertainment purposes, is to show the video or audio clip alongside a creator providing real-time, reaction commentary.[3] So long as a video falls within the scope of statutory regulation, meaning “for purposes such as criticism, comment, news reporting…,” the law provides protection under fair use.[4] However, not all creators enjoy smooth sailing while navigating the precarious waters of Youtube regulations.[5] Additionally, copyright holders often set up as many obstacles as possible for other creators to prevent infringement.[6]
In a previous lawsuit between two creators, Matt Hoss and H3H3, defendants Ethan and Hila Klein set invaluable precedent for YouTube commentary channels when the court granted their motion for summary judgement.[7] Defendants used a portion of plaintiff’s Youtube video within their own as an illustrative example to accompany their criticism and commentary.[8] During its analysis of plaintiff’s copyright infringement claim, the court ultimately ruled in favor of the Klein’s after finding that H3H3 had narrated over the video, constituting commentary and criticism under § 107, and that the video did not take away demand for Hoss’s copyrightable work.[9] Now, after nearly 5 years since the laborious battle for fair use protection in YouTube commentary was deemed a “win” for many creators, H3H3 must take up the mantle and fight for the same protections again.
Triller Fight Club LLC is the fighting branch of Triller, the social media app, and Triller endeavored to create and market a series of boxing matches pitting social media stars against trained, professional fighters.[10] Perhaps because of his infamy on the internet, Jake Paul’s fight was highly anticipated. A great deal of commentators focused on the fight before, during, and after its ending.[11] H3H3 was just one of many YouTube creators that weighed in on the Jake Paul fight.[12] However, H3H3 is now being sued for copyright infringement by Triller after the YouTube channel already carved a path for fair use protection in internet commentary videos.[13]
There was an initial lawsuit against the H3 Podcast and numerous other defendants filed on April 23, 2021, but that was immediately dismissed by the court.[14] In May 2021, Judge Andersen promptly moved for a sua sponte motion to dismiss all defendants except the first-named defendant.[15] None of the other dismissed defendants have been sued by Triller, except for the H3 Podcast—the most well-known and popular YouTube Channel named as a party.[16] The crux of Triller’s argument is that H3 illegally streamed the Jake Paul fight and, therefore, took away viewers from the pay-per-view program; however, H3 will most likely argue that because their video was streamed after the fight had already ended, their use was for news purposes.[17] In an ideal world, this case will resolve similarly to H3’s previous judgement and preserve the fair use protections Ethan and Hila Klein earned, but for now, YouTubers everywhere must cross their fingers that commentary channels may remain.
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