Reacting Right: Fair Use and Reaction Content

Reacting Right: Fair Use and Reaction Content

As early as “Mystery Science Theater 3000” in the late-80s, Americans have enjoyed watching others watch.^[1] With the advent of online video platforms, reaction content exploded in popularity, resulting in content creators on YouTube and Twitch wracking in millions of views through their reactions.^[2] These reaction videos might vary in style, but all share one commonality: they utilize already-existing media to create content. This use of media, of course, has legal implications. After all, copyright law grants copyright owners sole control over the reproduction, display, and performance of their work.^[3] But what legal framework exists within copyright law for react content, and how do creators feel about having to work within and around this framework?

Reaction Videos

Internet reaction videos might have originated when filmed reactions to a graphic pornographic film began to go viral.^[4]  With the click of a mouse, viewers could see the over-the-top responses of grandmothers, marines, and celebrities––all captured on video.^[5] These early reaction videos appealed to audiences through their ability to portray genuine surprise and shock.^[6] Reaction content soon expanded past mere shock-value, with content creators reacting to a wider range of media. The Fine Brothers’ channel, aptly titled “REACT,” features segments like elders reacting to modern songs or children reacting to political events. Their wildly successful videos have amassed more than 13 billion views since the channel’s creation.^[7] While many reaction videos focused on individuals experiencing a certain work for the first time, be it a well-known song or a famous film twist,^[8] others utilized more untraditional media in untraditional ways. This included reactions to other online videos and even to other reaction videos. This trend was parodied by Mr. Beast, one of YouTube’s top creators, who posted a reaction to his own reaction of his own reaction [so on and so forth twenty levels deep.^[9] The video currently has over 7.5 million views.^[10]) As reactors widened the range of media they reacted to, their reactions themselves also began to broaden, with some critiquing, some parodying, and some contextualizing the original source.

Fair Use

While copyright law guarantees sole reproduction, display, and performance rights to the copyright owner, fair use of the copyrighted work does not constitute infringement.^[11] The goal of this fair use doctrine is to promote freedom of expression and creativity, allowing secondary creators to use a work for purposes of criticism, comment, news reporting, education, and research.^[12] In determining whether a use of copyrighted work falls under the fair use doctrine, four factors are considered: purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and; the effect of the use upon the potential market for or value of the copyrighted work.^[13] In this test, the first and fourth factors are considered the most critical. In simple terms, the first factor weighs the extent to which the secondary work transforms the original work, and the fourth factor weighs the extent to which the secondary work usurps the market for the original work.

Fair Use and Reaction Videos

Hosseinzadeh v. Klein, a landmark 2017 case from the Southern District of New York, provided reaction content a means of legal legitimacy through the fair use doctrine.^[14] The case was between two YouTube creators, plaintiff Matt Hosseinzadeh, known for his online character of “Bold Guy,” and defendants Ethan and Hila Klein, known for their reaction channel named “H3H3.” The Kleins’ allegedly infringing video, entitled “The Big, The BOLD, The Beautiful,” consisted of commentary and discussion by the Kleins, interspersed with clips from Hosseinzadeh’s video, “Bold Guy v. Parkour Girl,” which they frequently paused to criticize and comment on.^[15] The Kleins’ nearly fourteen-minute video displayed three minutes and fifteen seconds of the five minutes and twenty-four seconds long Hosseinzadeh video.^[16] On summary judgment, the Court held that Kleins’ video constituted fair use as a matter of law, and went through each of the four steps in their analysis. Notably, the court stated that “[t]he Klein video is quintessential criticism and comment,”^[17] in reference to the transformative test, and that “anyone seeking to enjoy ‘Bold Guy v. Parkour Girl’ on its own will have a very different experience watching the Klein video,”^[18] in reference to the market substitute test.

The Debate

The case set a clear precedent: as long as the reactions transformed the original video in a way that did not replace its market, reaction content was fair use. This, however, has not been greeted with universal enthusiasm across the reactor community. Across platforms, many have expressed frustrations with the attempts to implement a system that recognizes fair use. Perhaps the fiercest point of resistance is on Twitch. Twitch, unlike YouTube, does not platform videos which one can cut, edit, and upload, but instead promotes livestreaming, a medium where strict adherence to the fair use guidelines can be difficult. On Twitch, the platform is notified of allegedly infringing content, and then issues strikes against the creator, enough of which can result in a suspension or ban from the platform.^[19] This system, where creators must appeal their strike by showing fair use, puts the onus on the creator, rather than the copyright holder, to prove or disprove infringement, something which upsets many streamers. Among the critics is political streamer Michael Beyer, known on Twitch as “Mike from PA,” who received three fake strikes, meaning claims coming from someone other than the true copyright owner, after streaming the 2020 Democratic Primary Debates.^[20] “If you don’t dispute a claim . . .  you are the one that loses,” said Beyer. “The liability is on you. And some people, if they get DMCA-ed, are just scared they’re gonna get sued. They don’t have the money to pursue or defend a federal lawsuit.”^[21] Hasan Piker, a popular streamer on Twitch known by his username “HasanAbi,” has also voiced his frustrations with the current system. On January 8^th of 2022, Piker received a copyright claim after streaming the television show “MasterChef” to his viewers.^[22] That same day, Piker took to Twitter, tweeting his belief that “everything is fair use if the copyright holder doesn’t care about pursuing a dmca claim.”^[23] Piker ended the tweet by telling his audience to, “stop snitching.”^[24] Even within the legal community, some have called for change. Lawyer David Philip Graham, a specialist in video game and entertainment law, advocated for a rehaul of copyright law, as “being limited to passive interactions with our own culture is an impoverishment that the massive infringement on Twitch, YouTube and social media shows few of us are willing to accept.”^[25]

Conclusion

To conclude, reaction videos have been found to fall under fair use, as long as the use is transformative and does not replace the market for the original work. Despite this, many creators feel stifled by YouTube and Twitch’s easily-triggered claim systems, feeling that they put too much of a burden on the creators to prove that their use is fair. Others have called for the copyright and fair use systems to be reworked in light of the transforming technologies, arguing that until change occurs, infringement will continue.