It goes without saying that platforms like YouTube have played a significant role in decreasing some of the barriers to entry for creators seeking to reach a wider audience. Not only have these internet platforms provided creators with new avenues for distributing content, they’ve also opened doors for a new generation of creators with fresh, innovative, and even unconventional approaches to developing content. One such unconventional approach is the rise of “reaction videos”—videos of people reacting to various things. In one viral reaction video, which has been viewed more than 4.7 million times on YouTube, a young boy watches The Empire Strikes Back for the first time, as his parents catch his reaction to the stunning revelation that Darth Vader is Luke Skywalker’s father. An article in the New York Times describes his reaction:
He makes a face like a threatened grizzly bear: mouth wide open, snout muscles flexed, teeth bared. He is frozen in a soundless scream, his mind blown by this inconceivable, unforeseeable twist at the climax of the world’s greatest space opera. In witnessing Luke Skywalker’s loss of innocence, the boy has lost his own innocence.
The idea of watching people react to things is undoubtedly unconventional, but the concept is not a new one. It’s the same underlying idea that gave us content like Kids Say the Darndest Things, America’s Funniest Home Videos, and MTV’s Boiling Points. But when reaction videos incorporate other protected content, there’s a fine line between fair use and infringement.
In April 2016, filmmaker Matt Hoss filed a lawsuit against Ethan and Hila Klein (“The Kleins”) alleging copyright infringement, among other claims, in relation to Hoss’ video series “portraying encounters between a fictional character known as “Bold Guy,” played by plaintiff, and various women whom Bold Guy meets and pursues” (the “Hoss video”). The Kleins, who also create videos for YouTube, created a reaction video called “The Big, The BOLD, The Beautiful,” (the “Klein video”) which the court described as follows:
The Klein video opens with commentary and discussion between Ethan and Hila Klein, followed by segments of the Hoss video which they play, stop, and continue to comment on and criticize. The Klein video, which is almost fourteen minutes long, intersperses relatively short segments of the Hoss video with long segments of the Kleins’ commentary, ultimately using three minutes and fifteen seconds of the five minute, twenty-four second long Hoss video. The Klein video is harshly critical of the Hoss video, and includes mockery of plaintiff’s performance and what the defendants consider unrealistic dialog and plotlines.
The Kleins argued, successfully, that their video constituted fair use. Here’s what tipped the scale in their favor:
- Criticism and Comment Are Classic Examples of Fair Use
Factor one—which examines the purpose and character of the use—at its core seeks to determine whether “the would-be fair user of another’s work [has a] justification for the taking.” As some of the other blogs in our series this week demonstrate, this analysis often focuses on whether and to what extent the use transforms the underlying work—i.e., whether the use transforms the underlying work such that the taking is therefore justified. In this case, the inquiry into transformativeness certainly came up, but to a lesser extent because 1) “it is well-established that “[a]mong the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it” and 2) criticism and comment are explicitly listed in the Copyright Act as examples of fair use, and, as the court explained “there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described [in the statute].” Having held that the Klein video was in fact a legitimate commentary, criticizing many facets of the Hoss video, the court determined that the first factor weighed toward a finding of fair use.
- “Reasonableness” is a Critical Part of the Analysis in Factor 3
The third factor of the fair use analysis looks at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. This factor’s purpose is to ensure that the secondary use does not use too much of the underlying work. But what constitutes “too much” varies from one context to the next. Here, the Klein video uses 3 minutes and 15 seconds of the Hoss video, which is only 5 minutes and 24 seconds long. That’s roughly 60% of the underlying work, and without context, it sounds excessive. But in this case, those 3 minutes and 15 seconds are divided into “a number of short segments of plaintiff’s work, interspersing … commentary and critique along the way.” More importantly though, as the court points out quantity alone is not determinative.” The court held that “here, the ‘extent’ and ‘quality and importance’ of the video clips used by defendants were reasonable to accomplish the transformative purpose of critical commentary,” adding that such a critique would “lose context and utility” without incorporating those clips. Factor three is an inquiry not only into how much of the original work was used, but also whether that amount is reasonable given the use.
- “There is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described section 107.”
- “Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it.”
- The analysis under factor three, which examines the amount and substantiality of the portion used, must “consider not only ‘the quantity of the materials used’ but also ‘their quality and importance’” in relation to the context of the use.
Photo Credit: jacoblund/iStock/thinkstock
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