YouTuber couple Ethan and Hila Klein, the operators of H3H3Productions, have come up against a fair use problem based on their commentary on another YouTuber’s video. 

Copyright law’s fair use doctrine is meant to protect a range a legal activities from infringement claims. But it won’t stop a lawsuit, as Ethan and Hila found out after posting a 14-minute video about “Bold Guy vs Parkour Girl.” 

The sketch is by Matt Hosseinzadeh, whose “Matt Hoss Zone” channel includes a series of videos about “The Bold Guy,” a character who is very successful with attractive women. 

Ethan and Hila picked one of those videos and played snippets while commenting on its plot, dialogue, performances and themes. Hosseinzadeh, apparently taking exception, initiated a copyright dispute, which eventually resulted in a copyright infringement claim against Ethan and Hila. 

The couple, who raised $100,000 in less than a day for their legal defense through a GoFundMe campaign, put out a 15-minute video appeal that says fair use isn’t necessarily the shield that many people think it is. And they’re right. 

The fair use doctrine offers an “affirmative defense” to a claim of copyright infringement—meaning a defendant admits to doing what is complained of in the lawsuit but explains why it’s allowed. 

The common law doctrine that has been incorporated into federal law (Section 107 of the Copyright Act of 1976) sets forth a four-part test for determining whether an activity that otherwise might be infringing is allowed. Criticism and commentary are among those activities intended to be protected. 

But, as Ethan and Hila point out in their crowdfunding video, when you assert fair use, you still have to go to court and prove that your use is fair. Just saying “fair use” won’t make a copyright infringement claim vanish.