By Matthew B. Harrison
TALKERS, VP/Associate Publisher
Harrison Media Law, Senior Partner
Goodphone Communications, Executive Producer
In 2016, YouTubers Ethan and Hila Klein of H3h3 Productions were sued by Matt Hosseinzadeh for copyright infringement after they used portions of his video in their reaction content. The court ruled in their favor, emphasizing that their use was transformative, added commentary, and did not harm the original work’s market value.
This case became one of the most important fair use decisions for modern content creators and established a significant precedent for commentary, criticism, and reaction content in the digital era.
The Big Question
How much of someone else’s work can you use before it becomes infringement?
For spoken-word creators, broadcasters, podcasters, and video producers, the answer is often misunderstood. Fair use is not determined by a specific number of seconds. Courts focus on purpose, transformation, and context far more than duration alone.
What the Court Actually Said
The court found that H3h3’s videos were transformative because they added substantial commentary, criticism, and analysis. The original clips were used as part of a larger discussion rather than simply being republished for entertainment.
That distinction matters. A creator who uses portions of an interview, speech, viral clip, or video to analyze, critique, parody, or comment on the original work stands on much stronger fair use ground than someone who merely republishes it.
Why Transformation Matters More Than Seconds
Many creators still ask how many seconds they are allowed to use. The better question is whether the clip is necessary to support the new commentary.
Even longer excerpts may qualify as fair use when they are closely tied to criticism, analysis, education, or parody. Conversely, even a short clip can create liability if it serves no purpose beyond republishing someone else’s content.
The court’s analysis in H3h3 focused on what the creators added to the conversation—not simply how much footage they used.
The Practical Lesson for Creators
Fair use is not automatic, and it is certainly not the default. Overusing original material or failing to contribute meaningful commentary can weaken a fair use defense considerably.
The key takeaway is simple: be transformative and be intentional. Your analysis, criticism, perspective, and creativity are what make the use legally defensible.
The more your work contributes something new, the stronger your position becomes.
Related Reading
- Jimmy Kimmel’s Fair Use Victory: What It Means for Content Creators
- Equals Three v. Jukin Media: When Reaction Videos Cross the Line
- Fair Use in 2025: The Courts Draw New Lines
Creating reaction content, commentary, or criticism?
Fair use can be a powerful protection, but only when applied correctly. Harrison Legal Group helps creators, broadcasters, podcasters, publishers, and digital entrepreneurs evaluate copyright risks before publication.
Matthew B. Harrison is a media, intellectual property, and digital rights attorney. He advises broadcasters, content creators, publishers, and entrepreneurs on copyright, trademark, AI, defamation, and content licensing issues. Reach him at Matthew@HarrisonMediaLaw.com or read more at TALKERS.com.