Mo’ Content, Mo’ Problems: A Closer Look at the Intellectual Property Issues That Surround YouTube Reaction Videos
A reaction video is exactly what it sounds like: a video that captures someone’s response to an event or piece of media. Typically, reaction videos switch back and forth between snippets of the reaction-generating content and the reactor’s commentary. Today, thousands of these videos can be found on YouTube.1 The first major wave of YouTube reaction videos came in 2007, after the release of “2 Girls 1 Cup.”2 The infamous video was so disruptive of social taboo that it created what can be described as a “psychological schism” among viewers.3 As one New York Times reporter put it, “[the video] was unwatchable, and yet had to be watched.” Reaction videos to “2 Girls 1 Cup” did not include actual footage of the film. Rather, these videos only included snippets of the film’s audio. Uploaders likely chose not to include actual footage because of YouTube’s well-known prohibition of nudity and sexually explicit content.4 By not showing the repulsive footage, these reaction videos allowed curious viewers to see “2 Girls 1 Cup” without actually “seeing” it. The concept of seeing without seeing is partly why reaction videos have remained so popular on YouTube. Viewers who lack the time, energy, knowledge, or interest in certain content can easily get the highlights while simultaneously enjoying the commentary and charisma of the reactors.
Reaction videos are among the most popular kinds of videos on YouTube. Many content creators (“YouTubers”) who produce reaction videos have amassed many subscribers who provide millions of views.5 Today, the most popular reaction videos cover pop culture topics including books6, memes7, television shows8, other YouTube videos9, movies10, and music11. Since each of these topics utilizes copyrightable content, the videos that contain them have triggered various intellectual property issues. This blog post addresses the kind of copyright issues that arise when a reaction video displays protected content, and whether fair use is an adequate affirmative defense.
YouTube provides its users with a user-friendly overview of copyright law.12 It explains the basics of how copyright law applies to the videos on its website, and it describes how YouTube tries to protect uploaded content, regardless of who owns it.13 Despite this, and despite YouTube’s explicit prohibition of illegally using copyrighted content, users consistently post content that violates these policies.14 To combat this, YouTube relies on both user action and its own automated system. With the mere click of a button, each YouTube video can be manually reported for rights infringement. YouTube’s automated system, however, uses an algorithm that automatically detects the presence of copyrighted content. Owners of copyrighted content, like record labels and movie studios, provide YouTube with the that content they wish to protect. YouTube’s algorithm takes this information and scans all the videos on its website to report any instance of the copyrighted content—even legitimate ones.15 YouTubers and the mainstream media have been very vocal about the algorithm’s inaccuracy, specifically calling for fair use law to address these issues. The 2017 S.D.N.Y. lawsuit Hosseinzadeh v. Klein was one of the first major cases to do this.16
In February 2016, husband and wife YouTubers Ethan and Hila Klein uploaded a reaction video called “The Big, The BOLD, The Beautiful” to their shared YouTube channel.17. In the video, the Kleins displayed, criticized, joked about, and commented on a video skit from another YouTuber. The skit, entitled “Bold Guy vs. Parkour Girl,” was uploaded by plaintiff Matt Hosseinzadeh (“Hoss”) three years prior.18
Though the Kleins had posted similar reaction videos about different topics in the past, this was the first time that a subject of their video had taken legal action. Hoss sued for copyright infringement, misrepresentation, and defamation.19 The Kleins moved for summary judgment, arguing among other things that their reaction video was protected by fair use and therefore did not infringe upon Hoss’ rights.20 The Court analyzed the four fair use factors and ultimately decided that the Klein video was protected by fair use and could remain on YouTube.21 Though the Klein video was a piece of creative work22 and used a substantial amount of the Hoss video23, the Klein video was transformative enough to warrant protection. The Court stated that though no single fair use factor is determinative24, the “transformative” factor is the “heart of the fair use inquiry.”25 The Court viewed the Kleins’ commentary as the kind of protected commentary and criticism that might occur in a film studies class.26
YouTubers praised the Court for this ruling.27 In a world with relatively little precedent on the issue of fair use, this ruling gave reaction channels increased confidence in their ability to upload content free from the threat of copyright infringement.
Without YouTube’s intervention, intellectual property issues will continue to affect reaction videos. Though it cannot guarantee protection to its users, it would be in YouTube’s best interest to provide its audience with some sense of security that their legal content will not be stricken down by people who abuse their power. This topic is of pertinent interest because the abundance of these videos does not appear to be waning. By not offering much protection to its users, YouTube is opening itself up to the possibility of legal retaliation from YouTubers.
Valentina Palladino, The Science Behind the Insane Popularity of “React” Videos on YouTube, Ars Technica (Apr. 3, 2016), https://arstechnica.com/gaming/2016/04/the-science-behind-the-insane-popularity-of-react-videos-on-youtube.[https://perma.cc/UM4T-KA94]↩
Sam Anderson, Watching People Watching People Watching, N.Y. Times (Nov. 25, 2011), https://www.nytimes.com/2011/11/27/magazine/reaction-videos.html?_r=1.[https://perma.cc/2UBH-LHHW]↩
See supra note 2.↩
Policies and Safety, YouTube, https://www.youtube.com/yt/about/policies/#community-guidelines (last visited September 23, 2019).[https://perma.cc/D3XC-TAV4]↩
See Cody Ko, Roasting My Fans w/ Noel Miller, YouTube (Sept. 26, 2017), https://www.youtube.com/watch?v=bM9EXS7yQio.[https://perma.cc/8YBM-DZJN] This video has garnered more than five million views; see also Markiplier, Markiplier Reacts to 8 Million Fan Reaction Video, YouTube (June 22, 2015), https://www.youtube.com/watch?v=O0a64wprkfo.[https://perma.cc/VE3P-4D39]↩
FBE, Teens React to Encyclopedias, YouTube (July 12, 2015), https://www.youtube.com/watch?v=X7aJ3xaDMuM.↩
Jenna Marbles, Reacting to Your Memes (Meme Review), YouTube (Feb. 14, 2019), https://www.youtube.com/watch?v=kQBn8t2JXp0.[https://perma.cc/65FZ-6HB9]↩
Sunday Jess, Mormon Reaction to South Park Ep. “All About Mormons,” YouTube (June 14, 2018), https://www.youtube.com/watch?v=BEgQDJGP9E4.[https://perma.cc/88AN-XQ2K]↩
Kurtis Conner, Christian Mingle: The Movie, YouTube (Dec. 28, 2018), https://www.youtube.com/watch?v=WWEr7kklp8U.[https://perma.cc/GKQ6-EXX7]↩
Sarah Baska, Reacting to “Sweatshirt” by Jacob Sartorius Music Video, YouTube (June 11, 2016), https://www.youtube.com/watch?v=1S-qiz0MV84.[https://perma.cc/F2KU-QDQR]↩
Copyright on YouTube, YouTube, https://www.youtube.com/yt/about/copyright/#support-and-troubleshooting (last visited September 23, 2019).[https://perma.cc/G9JM-UFR3]↩
Copyright strike basics, Google, https://support.google.com/youtube/answer/2814000?p=c_strike_basics&hl=en (last visited September 23, 2019).[https://perma.cc/TKB7-HHJZ]↩
Mason Sands, Why Copyright Will Be The Biggest Issue For YouTube in 2019 (Updated), Forbes (Dec. 30, 2018), https://www.forbes.com/sites/masonsands/2018/12/30/why-copyright-will-be-the-biggest-issue-for-youtube-in-2019.[https://perma.cc/7U5A-UNDT]↩
Chris Baraniuk, White Noise Video on YouTube Hit by Five Copyright Claims, BBC News (Jan. 5, 2018), https://www.bbc.com/news/technology-42580523[https://perma.cc/SG6T-TKBE]; see also Terry Matthew, YouTuber Receives 400 Copyright Claims Before Lunch, 5Mag.net (May 19, 2019), https://5mag.net/news/mumbo-jumbo-youtube-copyright-warner-chappell.[https://perma.cc/5UUS-ATJM]↩
276 F. Supp. 3d 34 (S.D.N.Y. 2017).↩
h3h3 Production, The Big, The BOLD, the Beautiful (Re-Upload), YouTube (Aug. 23, 2017), youtube.com/watch?v=CXUs5FOo-JE.[https://perma.cc/G43B-26PP]↩
Matt Hoss Zone, Bold Guy vs. Parkour Girl, You (Aug. 11, 2013), https://www.youtube.com/watch?v=Dj4XAYhF0ok.[https://perma.cc/3UMB-F447]↩
Hosseinzadeh v. Klein, 276 F. Supp. 3d 34, 39 (S.D.N.Y. 2017).↩
Id. at 34.↩
Id. at 46.↩
Id. at 41.↩
Id. at 40.↩
See e.g., Inside Gaming, Fair Use Lawsuit WIN Big for YouTube – The Know, YouTube (Aug. 24, 2017), https://www.youtube.com/watch?v=nToOyutoGg4[https://perma.cc/JV7D-869T]; Philip DeFranco, Why People Are Freaking Out About H3H3’s Huge Fair Use Decision and ESPN’s Ridiculous “Switch,” YouTube (Aug. 23, 2017), https://www.youtube.com/watch?v=yfLl3KUnxSk[https://perma.cc/468P-TA3H]; Lawful Masses with Leonard French, Matt Hoss v. h3h3 lawsuit: Summary Judgment Day, YouTube (Feb. 27, 2017), https://www.youtube.com/watch?v=FMnFnrVyReg.[https://perma.cc/S7BV-7T9E]↩