Welcome to my first blog post.
Let’s talk about the react meta for content creators. Made popular by the Fine Brothers’ “React” Youtube series, reaction videos generally have the host(s) or a featured group watching or trying anything and everything and capturing their reactions. A fairly simple, but yet, insanely profitable formula that many other Youtubers and Twitch streamers are imitating. However, many creators copy the formula without realizing the legal minefield involved. Generally, these videos contain reactions to copyrighted material and often they do not have a license to use them.
A couple months ago this issue went viral with youtubers MxR and Potastic Panda, where litigious viral video owner Jukin Media threatened to strike and terminate the aforementioned youtube channel for reacting to one of their videos. Aside from the ethical issue, it is evident the many content creators responding did not fully grasp the legal issues arising from reaction videos. Despite all that, this is not signaling the doom of reaction videos. Of course, the easiest way to bypass copyright issues is to obtain a license, but not many can easily obtain nor have the financial backing to get one. The alternative is the often misunderstood 17 U.S. Code §107 AKA the Fair Use Doctrine. Youtube creators such as Equals Three and H3H3 have very publicly defended and won against their copyright infringement challenges with fair use in New York and California, respectively.1Equals Three, LLC v. Jukin Media, Inc. 139 F. Supp. 3d 1094 (C.D. Cal. 2015) and Hosseinzadeh v. Klein 276 F.Supp.3d 34 (S.D.N.Y. 2017) *note: The Equals Three case was considered “won” because most of the alleged claims were dismissed, but one instance did survive summary judgment. During the trial the parties eventually settled. After the suit, a juror did comment that the jury was leaning towards Jukin. Though jury decisions hold no precedent, it is a warning that different people might see fair use differently.
Under the Fair Use Doctrine, copyright law gives an affirmative defense to infringement if used for “criticism, comment, news reporting, teaching, scholarship, or research.” Most reaction videos will try to fall under the criticism and commentary part. Nevertheless, to say that a video is criticism and/or commentary is not enough. The court uses four factors to determine if works fall under fair use: 1) purpose and character of the use, 2) nature of the copyrighted work, 3) the amount and substantiality of the proportion used, and 4) the effect upon the potential market.
- Purpose and Character of the Use
No single factor is determinative, but this one is the most significant when a work is more transformative. “Transformative” is a term many repeat, but few get it right. Just by changing parts of the copyrighted work is not enough, the change must have “further purpose or different character, altering the [copyrighted material] with new expression, meaning, or message.” Ask yourself why your audience is watching your video or stream, is it to watch your reactions or to watch the copyrighted work with you? Can you point to elements in the video or stream where you focus on your own work over that of the copyrighted parts and how different are the two? A consideration is how much screen time and space does the copyrighted material take. If your reaction is only shown on the edge of the screen and is only up for a few seconds while the movie is playing at full screen, that tends to lead to infringement. In the Equals Three and H3H3 case, both courts found the youtubers’ lengthy analysis and comedic reactions between showing the copyrighted material falls under fair use. This is further evident in the Equals Three case when they added sound effects and graphical overlay to point out what was said by the host. However, it must be noted that the reaction to the copyrighted videos were their own opinions and jokes to the video and not simply summarizing what they saw.
- Nature of the Copyrighted Work
This factor tends to lean towards the copyright owner’s side, but it is generally the least impactful. It looks at the level of creativity in the original work and in intellectual property, the greater the creative elements to a work the greater protection the law affords to it. The copyrighted works shown in reaction videos are usually works of fiction or has some essence of creativity to react to.
- Amount and Substantiality of the Proportion Used
“I only used 5 seconds of the song in my 10 minute video” or “the video only contains one scene of the movie” are common defenses from content creators and they are generally wrong or incomplete. The amount of the copyrighted work used is not compared to the length of the reaction video or stream, but rather, to the proportion of the original copyrighted work. More importantly the courts will look at what was being taken. The “heart” of a work, that is the memorable or important parts of the copyrighted work, lends to greater protection. In the case of reaction videos and streams, the heart of the work will most likely be included as that is usually what is being reacted to. Nevertheless, the law gives an exception to works of parody, which reactions generally fall into, because the heart of the work is essential to give such comment and/or criticism. It allows the heart of the work to be under fair use if the use is limited to giving context. For example, when talking about how bad the “I Have the High Ground” scene is in Star Wars: Revenge of the Sith , it may be appropriate to include that specific scene, other lightsaber fights, or Obi Wan and Anakin interactions, but it will start leaning more to infringement if the video started to randomly contain scenes of the best character in the series – Jar Jar Binks.
- Effect on the Potential Market
I think the most common misconception in fair use comes from this factor. Many content creators assume if their content is not monetize, it is not infringement. That is incorrect. Though monetization does hurt the content creator, nonmonetization does not protect them from infringement. Moreover, just because the content creator is promoting the copyrighted work does not mean it falls under fair use. The key phrase here is “potential market,” whereby the standard is to look at the market as a whole. Will the video stop viewers from going to the original? Also, criticism, such as reaction videos, holds a special place in regards to this factor. The courts do not look at if the criticism itself will drive away viewers as to not suppress free speech. In these cases, infringement will rely on if the video is a “market substitute” of the original material. How similar is the video to the copyrighted work that it risks stealing their audience? Thus, the more transformative the work, the less chance the video will be a market substitute. This is why the first factor is so important.
Note that these factors are just to determine if a video falls under legal fair use. Platforms such as Youtube or Twitch may put other hurdles created by their own terms of service. It is ultimately the platform’s determination if your video stays up on the platform or if they give you a copyright strike. That is separate from the DMCA takedown system required by law.
I hope this information will help content creators enjoy creating awesome videos without the worry of being hounded by DMCA takedowns, but in case you need personalized legal assistance or content clearance hit the contact button above.