In a March 21, 2016 article, Inside Counsel interviewed Venable partners Jessica Grant and Tamany Bentz on their representation of Jukin Media in what The Hollywood Reporter called, "the first major copyright trial of the viral-video era." The trial involved copyrighted viral videos that plaintiff used in his YouTube show. Plaintiff claimed he did not need to pay a license fee because his use of Jukin's videos constituted fair use. A California federal jury considered whether adding jokes, graphics, characters and commentary to the videos constituted fair use and thus no infringement. Following closing arguments, the parties immediately entered into settlement discussions as the jury deliberated. Shortly after the jury reached a verdict, the parties reached a settlement dissolving all existing disputes between the two companies and laid the groundwork for a collaborative business relationship in the future. The jury's verdict was sealed following the settlement.
"One of the reasons this case is so significant is because most fair use cases rarely proceed to trial and here a jury was asked to determine the issue of fair use," explained Grant and Bentz. "Also, fair use cases have traditionally involved music, film or books and the Jukin Media case is one of the first to ask a jury to address fair use as applied to viral YouTube videos."
To be considered fair use, four factors in Section 107 of the Copyright Act must be considered. "We argued that merely adding jokes or funny commentary does not, in and of itself, necessarily transform the original work into something new with a further purpose or different character," they said. "Here, Jukin Media contended its videos were entertaining, funny or poignant in the same manner and character both before and after they were featured in plaintiff Equals Three's YouTube episodes."
Discussing the uniqueness of the case, Grant and Bentz said, "Although witnesses took the stand and some documents were introduced into evidence, the primary evidence presented at trial consisted of 80 viral YouTube videos the jury watched in order to evaluate the fair use factors. This aspect of the case was unique and we are unaware of a similar case."