The episodes do so via the host’s reactions to the videos, jokes, narration, costumes and graphics. Here’s how the court explained why Equals Three’s use was highly transformative:Įquals Three’s episodes directly respond to and highlight humorous aspects of Jukin’s videos. While certain factors, like the first fair use factor (i.e., the transformative use inquiry) have greater weight and affect the analysis of the other fair use factors, no single factor decides the fair use inquiry.įirst Factor (Transformative Use): The court in Equals Three found each episode, except for “Sheep To Balls,” to be highly transformative. Those factors are: (1) the purpose and character of the use, including its commercial nature (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used of the original and (4) market harm. The court in Equals Three denied Jukin’s motion for summary judgment as to all Equals’ Three episodes, except one episode called “Sheep To Balls” (no giggling).Īs many know, fair use is a context-sensitive inquiry that requires analyzing, weighing and balancing the four fair use factors together. In order to stop Jukin from issuing these takedown notices, Equals Three decided to file a lawsuit.Īt an early stage, Jukin filed a motion for partial summary judgment that Equals Three’s use of the videos was not fair use (I’ll explain what a motion for summary judgment is after discussing the opinion). Equals Three was receiving numerous DMCA takedown notices from Jukin. In 18 of these episodes, Equals Three used 19 videos owned by Jukin without permission (one Equals Three episode used two videos owned by Jukin). Almost all Equals Three episodes involved discussing online videos. So what happened? Why all this confusion? And what does this opinion say? The answers require a little bit of an explanation, but given its importance to the community, I hope you bear with me.įor those unfamiliar, Ray William Johnson was a famous YouTuber who created the YouTube show Equals Three. And the opinion that resulted from Jukin’s motion for summary judgment was the first to recognize certain types of reaction videos as not just transformative, but highly transformative. But jury verdicts have absolutely no precedential value. Many people, understandably, believe Equal Three set a bad precedent for YouTubers because it went to a jury.
Of critical importance is clarifying the legacy of the (in)famous case: Equals Three v. Since YouTube has become one of the primary laboratories of fair use, it is important to facilitate that debate with accurate legal information relevant to YouTubers. Seeing these debates is nothing short of inspiring because they prove an important point: anyone – not just attorneys – can understand and debate the law (as it should be).
As a copyright attorney, a guilty pleasure of mine is watching YouTube debates on fair use.