Critical Commentary Video Found to be Fair Use

In Matt Hosseinzadeh v. Ethan Klein and Hila Klein, the US District Court of the Southern District of New York (Court) found that a video of critical commentary of a creative video posted on YouTube constituted fair dealing. The plaintiff, Mr Hosseinzadeh, alleged that by posting the video, the defendants, Ethan and Hila Klein, infringed his copyrights, violated the Digital Millennium Copyright Act (DMCA) and defamed the plaintiff.

In February of 2016, the defendants posted the video at issue in this case, which contained clips of a video made by the plaintiff interspersed with criticism and commentary. The defendants tried to have the video removed through the DMCA takedown process, but the defendants challenged the request on the grounds that the video was fair use and non-commercial. Shortly thereafter, the plaintiff filed his suit for violation of the DMCA and infringement of copyright. After the defendants posted a video criticizing the lawsuit, the plaintiff amended the action to include defamation.

The Court’s decision was the result of motions for summary judgment filed by the plaintiff and the defendants. The Court granted the defendants’ motion for summary judgement on all three of the plaintiff’s claims.

In finding for the defendants with respect to the fair use defence to copyright infringement, the Court found that the most important factor to consider, the “purpose and character” of the use, weighed heavily in the defendants’ favour. According the Court, “criticism” and “comment” are “classic examples of fair use” and the defendant’s video was “quintessential criticism and comment”.

The plaintiff’s allegation that the defendants misrepresented a “good faith” belief of fair use in their DMCA counter notification was no longer relevant as the use was determined to fall within the defence. The Court also found that the comments in the video criticizing the lawsuit were not defamatory and were non-actionable opinions and facts that were substantially true.

Summary By: Lisa Danay