What is Fair Use?
Fair use is the right to use copyrighted works for news reporting, criticism, teaching, research, or commentary purposes. “Criticism” and “commentary” are the least precise, most ambiguous of these purposes, and, as such, the source of the most controversy. According to Section 107 of the U.S. Copyright Act, whether a given use is officially “Fair Use” depends on several factors, namely:
- The purpose and character of the use: Fair Use tends to favor non-profit purposes over for-profit, commercial purposes generally. The Fair Use doctrine lists purposes of commentary, criticism, reporting, teaching, and research as suitable for Fair Use. Fair Use also favors more “transformative” works from the original content. Fair Use is more likely to apply to a given situation if the original work is “transformed” into a different and unique composition in comparison to the original.
- The nature of the copyrighted work: This factor depends highly on the characteristics of the work itself:
- Unpublished works: If work has yet to be published like a play or show manuscript, this can go against claims of Fair Use. The copyright owner will have the right to decide when and how to publish their work.
- Educational Market: If a work is specifically created for the educational market and commercially available, it is generally disfavored under the consideration of Fair Use.
- Fiction vs. Nonfiction Works: Fair Use is generally favorable to nonfiction works, while fictional or creative works are typically protected through copyright law.
- The amount or substantiality of the work utilized: Instead of understanding the context of the original work in proportion to the reaction video, the amount or substantiality is determined by the proportion of the original work used in the reaction video to the length of the original work. However, this depends on the context of the first “original” work and is typically measured on a qualitative basis.
- “Heart of the work”: Courts ruled that even small fragments of work can be considered unacceptable under Fair Use if it takes portions of the work that are considered “the heart of the work.” For example, if you take the scenes from La La Land in your reaction video like the opening scene, “Another Day in the Sun,” or “City of Stars,” these scenes can be considered the most spectacular scenes from the movie and therefore seen as taking the “heart of the movie.”
- Parodies: However, in certain cases like parodies, if a creator copies the full soundtrack backing of a song but uses new lyrics, this can be seen as consistent under Fair Use as it heavily relies on new commentary and does not take “the heart of the work.”
- The effects of the use upon the work’s potential market value. Use that hurts the original work’s market value is less likely to be considered under Fair Use. This can also be considered for derivative works of the original content. For example, if a book was created into a movie without permission, this could cause harm to sales of the book and would not be covered under Fair Use.
- Exceptions:
- Parodies and Criticism: There is no protected market for criticism or parody, but courts will consider if there is evidence of potential harm to the markets of copyright owners.
- Workable Market: If there is not a market for the work (nobody is buying it), the court will tend to favor a finding of fair user especially if there are no reasonable causes to buy permission for work.
- Exceptions:
What is a reaction video?
A reaction video is a common format for a YouTube video where a YouTuber will react to another party’s video to comment and give their opinion on the party’s content. This is typically done via either (i) a “faceless” voiceover of the original content or (ii) a “picture-in-picture” style video of the reaction video’s creator’s face superimposed in the lower corner of the original video. For instance, many reaction videos cover new music and shows. The YouTuber is typically sharing their opinions and “reactions” to the new work.
Many content creators’ entire channels are solely made up of reaction videos; in other words, they might produce zero original content other than commentary on the original work of others. One example is the famous YouTuber (7+ million subscribers), HTHAZE, whose main video content is reaction videos to artists’ new work. He creates videos on musicians such as Billie Eilish, Olivia Rodrigo, and Taylor Swift.
HTHAZE’s Video Reactions to Billie Eilish and Sabrina Carpenter’s Music: HIT ME HARD AND SOFT by billie eilish hits. me. hard. *Album Reaction & Review*
PLEASE PLEASE PLEASE by sabrina carpenter is peak pop writing!! *Track and Music Video Reaction*
What is a copyrighted work?
Copyright is a collection of distinct rights over a creative work. These rights are transferable which means that another party, if given permission, can:
- Make copies of the work
- Can sell or distribute work
- Can create derivative works based on the original
- Can perform or show the work
Original work that can be copyrighted includes songs, shows and movies, books, and the list continues. However, if another party uses an original work without permission, this is copyright infringement. Copyright infringement occurs in the context of a failure to gain permission from the owner when distributing, selling, and creating copies of the original content. Copyright infringement can lead to legal disputes, fines, and lawsuits.
How do reaction videos involve copyright?
Most reaction videos include copyrighted content like the previous shows and music mentioned. Under copyright law, copyrighted content is only allowed to be used if permission by the copyright holder has been granted or the use falls within the Fair Use doctrine. Reaction videos are seen as controversial as there are conflicting opinions about the legality and morality of reusing the original content.
While some individuals believe that reaction videos are helping the copyright holder gain more traffic and increase following on social media platforms, others are concerned that reaction content creators are profiting off of the copyrighted work within these reaction videos without permission from the copyright holder and monetization of the original content.
One controversial YouTuber and Twitch Streamer is SSSniperWolf. SSSniperWolf is known for her extreme and funny reactions to others’ works from “cute dog videos,”“Karen incidents,” and “YouTube cover artists.” Through these reaction videos, she gained huge popularity over the years with over 34 million subscribers on YouTube. However, it is alleged that she typically does not give credit or ask for permission from the original content creators.
Unmasking Youtube’s Controversial React Stealing: SSSniperwolf reaction scam
Have creators of reaction videos been taken to court for copyright infringement?
Yes, they have. One of the most famous cases is Hosseinzadeh v. Klein. Ethan and Hila Klein both reacted to a video created by YouTuber, Matt Hosseinzadeh. Throughout their reaction video, they were not afraid to hold back their opinions and comments on the YouTube video. Within their actual video, three minutes of Matt Hosseinzadeh’s video was in the five-minute reaction video created by the Kleins. Therefore, Hosseinzadeh filed a copyright infringement case against the Kleins. However, the Kleins argued their use fell within the Fair Use doctrine.
Based on both sides’ arguments, the court found that “any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video; there is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law.” Klein’s argument positioned their video as a commentary on Hoss’ video and an original work, both protected rights under Fair Use.
However, this does not mean that all reaction videos are considered Fair Use. The court declared that “the Court is not ruling here that all ‘reaction videos’ constitute fair use.”
How are parodies identified under copyright law and Fair Use?
Parodies are another form of “reactionary” content as they are typically songs with changed lyrics of an original song to comment on modern issues.
Two Parodies of Popular Songs:Taylor Swift – Look What You Made Me Do PARODY – TEEN CRUSH
Carly Rae Jepsen CALL ME MAYBE – Rolanda & Richard (Parody)
Courts are more likely to identify parodies under Fair Use due to the parodies’ purposes of commentary.
Parodies were considered Fair Use in the Supreme Court case, Campbell v. Acuff-Rose Music, Inc. A rap music group, 2 Live Crew, developed a song called “Pretty Woman” as a parody of Roy Orbison’s song, “Oh, Pretty Woman” who was under Acuff-Rose Music Group. 2 Live Crew originally asked for a licensing agreement with Acuff-Rose Music for using “Oh, Pretty Woman.” Acuff-Rose Music dismissed the license request, and 2 Live Crew continued to produce and sell their song, “Pretty Woman.”
2 Live Crew’s song, Pretty Woman: Pretty Woman
Roy Orbison’s song, Oh, Pretty Woman: Oh, Pretty Woman
Acuff-Rose Music Group sued 2 Live Crew for copyright infringement. However, when addressed in a federal district court, 2 Live Crew’s parody was considered under Fair Use of the Copyright Act of 1976. The court recognized that 2 Live Crew’s parody, while related to the original work, was very different and was not a market substitute. Later, the case was taken to the United States Courts of Appeals for the Sixth Circuit where the original judgment was reversed as the court believed 2 Live Crew’s parody took the “heart of the original.”
The Supreme Court ended up agreeing with the federal district court’s judgment and allowed 2 Live Crew to profit off of their parody, “Pretty Woman.”
How does YouTube handle copyright disputes?
Copyright infringement claims on YouTube can lead to (i) demonetization of the video, (ii) the removal of the video from YouTube entirely, (iii) no action if YouTube determines the claim to be unfounded (without merit), and/or (iv) the infringing channel receiving a “copyright strike” under YouTube’s Terms of Service.
For instance, referring back to Hosseinzadeh v. Klein, Hosseinzadeh initially received a Digital Millennium Copyright Act (DMCA) notification through YouTube. However, the Kleins dismissed the claims and were able to keep their reaction video with Hosseinadeh on their YouTube channel.
In other instances, these claims can be very detrimental to content creators’ pages. Another practiced regulation is YouTube copyright strikes. Like striking out in a baseball game, if a content creator breaks copyright three times, their channel can be demonetized, subjected to a general takedown, or in other words, “struck” out.
One example of DMCA notifications almost ending a YouTube channel includes Brad & Lex. Brad & Lex is a YouTube channel of two YouTubers who react to music. Due to their reactions to certain musicians, the Universal Music Group sent a DMCA notification to Brad & Lex. Brad & Lex already received two copyright strikes prior and were on their last strike when UMG did not like their video reaction over an Eagles song. This also is not the first time UMG has targeted social media platforms and content creators over the use of their artists’ music. Brad & Lex ended up taking down the video in order to not lose their channel, and even after successfully filing a counter notice to YouTube’s DMCA notification, continued to withhold the Eagles’ video from their public YouTube channel.
Brad & Lex’s YouTube Videos over Copyright Strikes on YouTube:
WE’RE GETTING KICKED OFF YOUTUBE
How to avoid copyright strikes on YouTube for a reaction video?
Social Media platforms give leeway and more benefits to copyright holders through secondary systems on their platforms. For instance, YouTube is one of the leading platforms protecting copyright work. YouTube’s DMCA notifications allow copyright holders to have their stolen content removed without confronting the infringer.
These are two ways a reaction can address a copyright strike on YouTube:
- If reactors understand the basis and defense behind Fair Use, they can respond and reverse a copyright strike/DMCA notification to keep the reaction video on their YouTube channel. Afterward, copyright holders have two weeks to file a lawsuit until their content is returned to YouTube.
- However, by circumventing secondary systems like DMCA notifications, reactors can also ask permission from the copyright holder before publishing their videos. By asking for permission, this can cause less conflict and can avoid the risk of obtaining a copyright strike on YouTube.
So can Fair Use be used for reaction videos?
As mentioned in prior examples, Fair Use claims can address copyright infringement lawsuits like Hosseinzadeh v. Klein but cannot be used in all cases involving reactors on YouTube. Fair Use allows individuals to have the ability to comment and criticize another’s work based on the substantiality of their commentary. However, if the content is not found to fall within the legal definition of Fair Use, these reactors can find themselves in hot water. The best solution may be to ask permission directly from the original owner before using the copyright owner’s work, even if the intended purpose is arguably Fair Use. This process can avoid secondary processes and lead to fewer legal disputes.
In the next few years, the legal field and AI-based algorithms could continue to evolve to have more influence and more efficient techniques in understanding when a reaction video follows the Fair Use provisions.