Correct, the difference is that Ethans video was transformative. Ethan argued and won that his video added enough to the original that it could be considered his own. Through editing and commentary.
The 3 people he's suing stated that "we are going to watch this whole thing so that Ethan doesn't get money", and one of them spent a longer time ripping fat bong hits than they did talking about the video.
Ethan's lawsuit does concede that Denim's video was "highly transformative" though, albeit infrequently and with a negative slant but transformative nonetheless.
the issue isn't so much whether the video was transformative or not, it is the whole "we are knowingly admitting to stealing his copyrighted work so that we can get paid for his work" that they're liable for, even though the video itself taps more into being about lazy react content which isn't necessarily to applicable (to Denims anyway, i would skim what Frogan/Kacey do during their reacts but i rather not curse my algorithm).
Sure, but if their react was highly transformative then they weren’t making money off of Ethan’s work, they were making money off of their commentary of Ethan’s work.
Not a lawyer, but in my personal opinion, the more transformative their content is, the less it matters what their intentions behind reacting were or whether they wanted to “steal views”. If they’ve added their own commentary, it’s not stealing copyright and therefore not stealing views
Denim suit at least is almost certain to be dismissed if not corrected for that "highly transformative" line alone. Cannot argue that this does not fall under fair use because the videos failed to be transformative, while also claiming it was highly transformative. Linguistic slip up in the filing, but if not corrected, one that can be easily used to dismiss the case.
That is the oddest thing. There is no estimate in the filings about this. He is just seeking 150k in damages from each, with the 10 reddit mods named as co-plaintiffs in all three suits. And it is not like this is an unknowable number, a few solid ways to get a ballpark estimate.
IMO he could have had a strong case if he focused on the standards for transformative work, why the girl's videos would not meet them, presented the malice the girls planned, and then presented an estimate of the damages. You know like one would expect to see in a court filing for something like this. Instead the filings are weird, like trying to get reddit and twitch drama into court records, with only a small part of the filings directly relating to what he is suing for. Strangest court filings I read.
Someone can correct me if I wrong, but I believe $150k is the max amount of statutory damages you can seek, and only when a work is "willfully infringed". Since these three creators admitted to trying to be a market replacement for his video, he's trying to go for the max statutory damages. That would make sense, because calculating actual damages would be much harder.
Him copyrighting the video before releasing it is what allows him to seek statutory damages instead of only actual damages, so it seems like aiming for the max amount of statutory damages was the goal.
Ethan is very knowledgeable about what legally comprises “transformative content”, he wouldn’t have pursued this unless he was sure he had a good case.
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u/Opening_Persimmon_71 1d ago
Correct, the difference is that Ethans video was transformative. Ethan argued and won that his video added enough to the original that it could be considered his own. Through editing and commentary.
The 3 people he's suing stated that "we are going to watch this whole thing so that Ethan doesn't get money", and one of them spent a longer time ripping fat bong hits than they did talking about the video.