Many of you out there are probably somewhat familiar with YouTube content and reaction videos by proxy. It’s a contentious subject at times because of intellectual property laws or copyright legislation. Surprisingly, reaction videos can be (and have been) taken down due to copyright allegations, but they have the law on their side.
Reaction videos don’t get copyrighted because they’re legally protected under the Fair Use Act, though copyright infringement claims happen. YouTube has removed reaction videos due to false infringement claims, even though the videos are legal. That was the premise of the H3H3 vs. Matt Hoss lawsuit.
This article will go more in-depth about reaction videos on YouTube, copyright law, and the Fair Use Act.
What Are Reaction Videos?
You may be passingly familiar with reaction videos if you’ve spent any amount of time scrolling on YouTube. Reaction videos are when content creators record themselves viewing other content and their reactions to it in real-time. These videos may include direct video footage of the content, but they often only have audio.
Regardless, these videos have gained a lot of traction recently, and also some flak from content creators who claim the videos are unoriginal or even copyright infringement.
Copyright Law and Fair Use
Copyright law is a thorny morass best left to the lawyers, but its essence is this: if you create something, you retain creative rights over the property, whether it’s a book, movie, video, etc. Typically, this means that if someone else uses your material without permission, you can sue or get the content removed.
The Fair Use Act is the wrench in copyright law; it essentially states that you can use another person’s content for commentary, search engines, criticism, parody, news reporting, research, and scholarship.
But what does this mean in practical terms?
For instance, if you take a movie clip and insert yourself into it to make commentary or parody, that’s covered under Fair Use. However, each case is unique, which sometimes leads to a grey area where it’s difficult to tell what’s considered Fair Use and what isn’t.
As a result, copyrighted material covered under Fair Use can sometimes be removed or taken down simply because the platform doesn’t want to deal with copyright law problems.
This can lead to an atmosphere of oppression where you feel that if you use something legally covered by Fair Use, you may still be obliged to remove it if the material’s true owner demanded it, simply due to the threat of legal action. After all, even if you’re in the right, it doesn’t matter unless you have the money and time to fight it in court.
YouTube, Fair Use, and Copyright Law
YouTube is possibly the biggest platform for content creators, and with that comes a lot of uproar about intellectual property, Fair Use, and copyrights. It’s sometimes difficult to distinguish copyright infringement from videos covered under Fair Use, which leads to abuse of allegations of those claiming copyright infringement.
Occasionally, you may hear about cases where content creators are ‘copyright striking’ someone. This means that they filed a legal takedown request, but YouTube chose to remove the video whether it was infringement or not. The creators of that content are then obligated to either pursue legal action, which is costly or simply lie down and roll over to copyright strikers’ whims.
The Case of H3H3 vs. Matt Hoss
You can’t talk about Fair Use and YouTube without discussing the H3H3 vs. Matt Hoss case. This was a landmark court battle in 2017 between a well-known YouTuber known as H3H3 and a YouTuber named MattHossZone, shortened to Matt Hoss.
Matt Hoss created fitness-oriented videos, and H3H3 featured a clip of Hoss’s video to criticize its sexualized depiction of women. The criticism was that the acting and scripting in Hoss’s clip were akin to pornographic videos in how they showed women.
In response, H3H3 (who was actually a couple) faced a civil action lawsuit demanding that they remove the YouTube video. Instead, H3H3 fought the case in court and won.
The judge from the case upheld H3H3’s right to use that portion of Matt Hoss’s video in their work as Fair Use. Though the judge directly said that she wasn’t ruling that all reaction videos are considered Fair Use, many YouTubers consider the case a big win for content creators worldwide.
What Does the H3H3 Case Mean for Reaction Videos?
Basically, this case set the precedent that reaction videos would be more likely to be favorably ruled as Fair Use in the future. Of course, it’s always possible that future cases aren’t as cut and dry – like if a content creator simply ripped off someone else’s work for their benefit (ex: lifting a video clip to add to a compilation without explicit credit or permission).
Generally, though, reaction videos aren’t an effort to steal someone’s work and are more for commentary, parody, or criticism.
Although the judge did say the ruling didn’t protect all reaction videos, H3H3 also seems to believe that the verdict is for the benefit of YouTube’s future. Ethan Klein, one half of H3H3, said in a celebratory video after the ruling, “This is a landmark case, not just for us, but the wording the judge put in is going to strengthen fair use across YouTube.”
How To Decide If Something Is Fair Use
This is the truly tricky bit.
If you want to use material from another YouTuber in your content, perhaps the easiest way to go about it is to simply ask if you can use it for Fair Use purposes and place an acknowledgment in your video description. It’s not absolutely necessary under Fair Use to do this, but it’s polite and places a cushion between you and any allegations of copyright infringement later on.
First, think about why you want to use someone else’s work in your content. Monetization of reaction videos, for example, is more likely to bring scrutiny to any copyrighted content used in them. Other considerations are how much the content changes or ‘transforms’ the work as a whole. In the H3H3 case, for example, the judge ruled that the work would lose its ‘context and utility’ without using portions of Matt Hoss’s work.
Naturally, there’s a slippery slope to this type of video. Because it relies upon other peoples’ work as a launchpad, it can be easy for reaction videos to depend upon the copyrighted material to make the video interesting without their own criticism or parody of the work. That’s really where you come across instances of true copyright infringement – which, let’s keep in mind, copyright laws are to protect creators first.
Finally, a major consideration to deciding Fair Use is whether the work using copyrighted material harms the original work, aka, Market Harm. In pragmatic terms, this describes whether a Fair Use video, like H3H3’s video, hurts the viewership (and therefore the monetization) of Matt Hoss’s original video.
That can be a grey area. Sharp criticism of someone’s work isn’t infringement, as the H3H3 case proves. Rather, the alleged Fair Use content needs to ‘usurp’ or overtake the original content to really build a copyright infringement case.
Copyright law and Fair Use can be complex to navigate when considering content creation, especially on a platform as big as YouTube. Thankfully, the courts appear to be sympathetic to content creators who make content such as reaction videos, as long as they meet Fair Use standards. This, on the whole, bodes well for the future of YouTube content creators.
- JDSupra: Reaction Videos and Fair Use
- Texas A&M University School of Law: Courts React: Popularity of YouTube’s Reaction Video Genre Sparks New Discussion on Fair Use Defense
- Lexology: Reaction video YouTubers win landmark ‘fair use’ copyright case in the US
- BBC: YouTube stars H3H3 win ‘landmark’ court case against Matt Hoss