While it may be confusing to some, the digital age has given way to the online age. In this online age, a great deal of time and money is spent viewing streaming videos, the most popular of which might be reaction videos. People watch other people watching and reacting to movies, shows, songs, and other works of art.
Streaming others’ protected works and adding commentary, humor, or other components walks a fine line between what’s called “fair use” and copyright infringement. There are numerous complex legal issues involved.
Twitch bans introduce the legal issues involved
The steaming platform Twitch has been involved in a few high-profile user bans over this issue recently. According to TorrentFreak online, Twitch user Imane Anys was given a short ban from streaming on Twitch. The ban came as a result of her streaming six hours of the animated series Avatar: The Last Airbender.
Known as Pokimane on the streaming service, Anys apparently did not even dispute the ban. According to the article, Anys actually tweeted in response to the ban, “Just to be clear, I’m not surprised and I don’t think this is unfair. Imo, it was inevitable that publishers would take action, on me or someone else, during this react meta.”
Whether a reaction video falls under “fair use”
When people are streaming others’ copyright protected works of art, how is this not copyright infringement? How is streaming a movie without owning copyright permissions, but including some commentary or humor, different from just streaming the movie?
The primary issue involves the concept of “fair use.”
In most reaction videos, the copyright to the original content being reacted to belongs to someone other than the person making the reaction video. Normally, if someone simply streams someone else’s content, it is an infringement of the original creators copy rights.
However, reaction videos usually fall under the concept of fair use, which eliminates liability for copyright infringement.
Elements of fair use in reaction videos
According to JD Supra online, there are four main elements to a reaction video being considered fair use:
- The purpose and character of the derivative work must be transformative in nature. In this context, transformative can be considered very broadly, including anything that adds to the original work. Even sarcastic comments while watching a video can count as fair use.
- The nature of the original work and whether it’s copyrighted, though most works that garner adequate attention on reaction videos are published and protected, so this factor rarely comes into play.
- The amount and substance of the original work used, which suggests that the more of the work someone uses in a reaction video, the more likely they are to not fall under fair use. However, most reaction videos require the use of the work to give the derivative work its meaning and context, so this factor is, for all practical purposes, overlooked in most cases.
- Market harm, which refers to the degree of damage the original copyright holder suffered as a result of the derivative work. However, the courts have held that critical works that suppress the demand for the original work are not the same as instances of copyright infringement, making this a difficult element to establish.
Clearly, most of these elements do not favor copyright holders. To avoid losing a lawsuit for copyright infringement from a reaction video or critical video, make sure that you are truly adding something.
Many of the latest reaction videos have involved little more than an overlay box in the corner of the screen as the streamer simply takes in the original work. It could be difficult to argue that this is adding something new or transformative to the original work.
Generally, claims of copyright infringement by copyright holders can be defended against and won with the right legal team and plan.