YouTube Trial: Juror Says YouTuber's Incorporation of Unlicensed Clips Is Not Fair Use

A confidential settlement made during deliberation makes the jury's verdict moot.
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YouTube star Ray William Johnson, whose 10.6 million subscribers tune in for comedic commentary, has reached a settlement with a media company that claimed he was profiting from its clips without paying to license them. 

Millions of people have watched the viral videos at issue in this lawsuit, but only a handful know what would have happened if Johnson's Equals Three and Maker Studios-backed Jukin Media hadn't reached a settlement Wednesday while the jury was deliberating. 

The jury's verdict is filed under seal, but one of the jurors spoke with The Hollywood Reporter on the condition of anonymity. 

“The jury came back with a unanimous 'no' on each count, no fair use,” the juror said. “We just didn’t feel that the videos were transformative enough to count for fair use.”

The Equals Three Show is Johnson's YouTube series in which he posts programs commenting on viral videos and the people and events featured in them. Jukin Media makes revenue-sharing agreements with the creators of viral videos and then licenses their clips to distributors including NBC and CNN.

Prior to this lawsuit, Jukin had no licensing agreement with Equals Three.

When Johnson began using Jukin videos, Jukin sent a takedown notice to YouTube pursuant to the Digital Millennium Copyright Act (DMCA).

In November 2014, Equals Three sued Jukin Media, claiming Jukin acted in bad faith by filing a takedown notice without first considering whether Johnson’s videos were protected by fair use.  

At issue were 48 Jukin videos ,including "Groom Drops Bride," "Dog Thinks Terrance Door is Closed" and "Funniest Slingshot Video of All Time," that were used in 40 Equals Three episodes with titles like "Drunk Babies," "Itchy Balls" and "Batman is Real." 

The jurors watched both versions of each video, totaling 96 viral videos — not counting the ones they watched more than once.

“Only the ones that we had real questions about did we watch a second time,” the juror said. "There were a few that were in question. It was about a two and a half hour deliberation." 

During that deliberation they were asked to answer 48 variations of this question: Do you find that Equals Three and Ray William Johnson proved by a preponderance of the evidence that their use of Jukin’s video, Dachshund v. Crab, in the episode Weiner Crabs was a fair use?

This juror said it's kind of a relief that their verdict didn't ultimately affect the outcome of this case.

"I didn’t want to be the one to set a precedent, necessarily," the juror said.  

The current precedent was set in September, when a 9th Circuit ruling that fair use is a right — not a defense — rattled the viral video world. The infamous "dancing baby" case, Lenz v. Universal, also involved copyrighted material and a takedown notice that prompted a lawsuit. The court found a copyright holder must form a subjective good faith belief that the material does not constitute fair use before sending a notice. Both sides have petitioned for a rehearing. 

The settlement for this case hasn't yet been officially announced, but the terms are confidential. So the inevitable joint press release likely won't say much beyond what the attorneys involved were able to say to THR.

"During deliberations, the parties reached an amicable resolution that addresses the previous disputes and lays the groundwork for a future business relationship,” says Thomas Vidal, attorney for Equals Three.  

Jukin was represented by Jessica Grant of Venable, who deferred comment to Vidal. 

Because the verdict is sealed, even though a juror has shared it, neither attorney was able to comment on the jury's decision.

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