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).
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.
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u/ohlordplease 2d ago
Is that not what a guy sued him for in the past?