Is there a right to copy?

BCM 113 Task 1

When reporting on stories or producing content in any manner, it’s imperative that practitioners are aware of the laws and matters that surround copyright & plagiarism.

Copyright and plagiarism laws are important to all content producers as they ensure that their work is legally viewed as their own intellectual property. Without these laws many creators would have little to no protection over their own productions, leaving their property open to being stolen or copied. 

Copyright and plagiarism legislation also inform practitioners of what is legally acceptable when using the intellectual property of others, especially when reporting on news or creating their own content. In a world where the footage and work of others is so easily accessible, issues regarding copyright & plagiarism have never been so prevalent. It is due to these reasons that when people produce content or stories using the work of others they must be aware of the legislation and laws surrounding the use of properties to avoid legal trouble.

In the instance of copyright & plagiarism laws online two YouTuber’s were taken to court in 2017 in a landmark case that helped define fair use on YouTube. Ethan & Hila Klein are YouTubers who have amassed a following of over 6.5 million subscribers on their YouTube channel that they started in 2011, known as H3H3Productions

YouTuber’s Ethan & Hila of H3H3 (via YouTube)

With the main content on YouTube gradually becoming more commentary and reaction based, a form of video production which relies heavily on the utilisation and critiquing of other videos, this lawsuit was ultimately inevitable and was key in raising awareness of the potential dangers of both using another creator’s footage and the flaws within the legal system regarding Fair Use and copyright. This case was fought by the Klein’s in the hopes of preventing lawyers and content creators from exploiting YouTube’s fair use guidelines and to set a precedent for what constitutes fair use on the media platform.

What is Plagiarism & Copyright?

Before getting into the legal matters of the case it is essential to understand the legislation surrounding these legal matters. In essence, plagiarism is the use of another person’s work and claiming ownership or using their creation without giving them the proper recognition. Copyright however is slightly different as it is the usage of another person’s work without gaining their consent beforehand. Both carry severe penalties and can have major implications both within the United States and Australia. 

In Australia, the main piece of legislation regarding copyright and plagiarism is the Copyright Act 1968. The legal framework of this act states that “Copyright is a right belonging to the owner or licensee of a literary, artistic or dramatic work, film or sound recording, to reproduce, perform or otherwise deal with the work.”. The legislation therefore makes the work property of it’s creator and any replicating or use of these properties without the creator’s consent can be deemed as illegal.

The key act in America that protects copyright is known as the Copyright Act of 1976. The act itself is relatively similar to Australia’s Copyright Act 1968 as it prevents the unauthorized use of licensed work. With both acts preventing the copying of licensed work, plagiarism is also covered within this act and is also a criminal offence.

There is however an exception with regards to the usage of intellectual properties and this is regarded as Fair Use. The doctrine of Fair Use permits limited use of copyrighted material without having to first notify or acquire permission from the owner. Fair use also allows exemptions regarding copyright as it allows people to use others’ work for criticism, parody and news reporting.

In Australia, corporations that breach copyright laws can face a penalty of up to $585,000 whereas individuals who fail to comply can face fines of up to $117,000 and a potential 5 year jail-sentence. 

American penalties are slightly different though, if found guilty of plagiarism or copyright the offender must not only pay all the damages and all the legal fees of both parties and a potential fine of up to $150,000 but is also at risk of having to serve up to 5 years imprisonment.

What were Ethan & Hila Klein sued for?

In April 2016, H3H3Productions uploaded a video titled “The Big, The Bold, The Beautiful” in which they use footage from creator Matt Hosseinzadeh in a satirical fashion, critiquing and poking fun at his work. 

https://twitter.com/h3h3productions/status/725470362843099136

On the 28th April, Hosseinzadeh filed a DMCA takedown & sent YouTube a notification, YouTube swiftly deleted the content as they were under the impression that H3H3Productions use of the content was not under fair use and illegal. This notification was later rebutted by the YouTubers who challenged that the content was in fact used legally as it was used in a way that supplemented their own video rather than using Hosseinzadeh’s video in its entirety as evident in the fact that out of the 14 minutes of the video, only 3 minutes of it featured Hosseinzadeh’s content.

Following this brief altercation and prior to the lawsuit being filed, the plaintiff’s lawyer sent a letter to the defendant’s which ordered them to; 

  • remove the infringing video
  • sign a mutual release and confidentiality agreement 
  • pay all $3,750 of the plaintiff’s legal fees
  • apologise to Hosseinzadeh on all their social media platforms and leave the posts up for a total of 3 months

Believing that by agreeing to these conditions a bad precedent would be set for future content creators on YouTube, Ethan & Hila Klein declined these demands and were taken to court.

On the 25th May 2016, the channel uploaded a video detailing the lawsuit and updating their viewers where they currently were within the legal process. In this video Ethan was quoted as saying that Hosseinzadeh was pursuing legal action because “He doesn’t like that we made fun of him, so he’s suing us”. A quote that resulted in a later defamation claim to be added to the plaintiff’s case against the defendants.

Due to these reasons Ethan & Hila Klein were taken to court later that year after being accused of copyright infringement and defamation against Matt Hosseinzadeh, proving that the line between fair use & copyright can be extremely blurred at times and can result in a lawsuit if those creating content using other intellectual property are not aware of the laws surrounding fair use.

Video from H3H3 Productions explaining the lawsuit (via YouTube)
What was the verdict?

On the 23rd of August 2017 it was officially concluded by the court that the Klein’s video did in fact fall under fair use. Direct quotes from judge Katherine B. Forrest stated that “Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video … 

defendant’s use of clips from the Hoss video constitutes fair use as a matter of law”. The ruling resulted in the Klein’s being able to re-upload the video that was initially taken down and claim it as their own as it was no longer viewed as a breach of copyright and found to be under fair use. Following the win, H3H3Productions uploaded a video titled “WE WON THE LAWSUIT!” where they detailed the judge’s findings and explained the implications that the outcome will have on future YouTube creators who may find themselves in a similar predicament. In this video Ethan Klein still makes it known that Fair Use on the media platform is still something that creators need to be weary of as the court specifically stated that not all “reaction videos” constitute fair use in her ruling. This is a key part of the verdict as it ensures that videos being uploaded must still contain some sort of criticism, parody and news reporting for it to be deemed Fair Use.

The outcome of this case further solidifies the importance of copyright laws in the media. In this instance it is evident that if copyright laws were too lenient creators would not have the proper protection on their work and the videos they produce however if the laws were too strict many content-makers would not be allowed to make any commentaries, reports or parody content on any other videos or pieces of work.

Video uploaded by H3H3 Productions following the lawsuit explaining the win (via YouTube)
What precedent did it set?

This lawsuit was considered a landmark case by many due to the implications that it would carry to the rest of the media platform. “This is a landmark case, not just for us, but the wording the judge put in is going to strengthen fair use across YouTube” says Ethan Klein in a video posted celebrating their win. This is mainly due to the fact that before this lawsuit YouTubers had little to no protection against their videos being removed for copyright even if the content fell under fair use. With legal precedent now supporting them, different types of content producers found they were able to create videos without the fear of having their videos removed by those who weren’t happy with the way they were critiqued despite the videos being fair use.

Following the win H3H3Productions started a fund known as the Fair Use Protection Agency. This was done after acknowledging the flaws in the legal system regarding YouTube’s copyright system and the length and cost of a copyright trial even if the video is blatantly fair use. Fair Use protection on YouTube was new to many prosecutors and therefore left many producers on the platform vulnerable to being recklessly sued by large corporations who did not like the way creators were using their content. The fund was designed to help provide legal representation and support to YouTuber’s in a process that Ethan Klein described as “a costly and long court hearing” when determining what is deemed as fair use on the media platform.

YouTubers the Fine Brothers showed support following the win (via Twitter)

With a key feature of the law being it’s accessibility, the Fair Use Protection Agency made information easily accessible to many creators who otherwise would be left in the dark after being sued or having their video removed for violating fair use.

Final Thoughts

In summary, the case itself was imperative in raising awareness of legal issues regarding the production of content and copyright. This was evident by the way that the plaintiff lost the case due to his lack of knowledge surrounding fair use, resulting in a costly legal battle and tarnished reputation. The lawsuit also helped strengthen fair use for YouTuber’s as it set a precedent for future cases and helped prove the importance of fair use on the platform. With copyright and plagiarism laws being important now more than ever due to the digital age we live in this outcome exhibited the importance of abiding by fair use and understanding what constitutes fair usage of another creator’s content. With penalties extremely harsh it’s crucial that extreme caution is taken when dealing with copyright and plagiarism. These are the main issues people need to be aware of regarding copyright and plagiarism.

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