Platforms such as YouTube allow individuals to post videos online for the world to see. Because YouTube and other such video hosting services derive revenue through ads placed on popular videos, content creators have incentive to post entertaining videos that will generate a maximum number of “views.” “Reaction videos,” those which depict the emotional responses, facial expressions, comments, or criticisms that a content creator directs to a featured video, commonly while simultaneously playing the featured video, are often used to gain this exact result. Further, these videos are attractive to content creators because they consistently net views and generally require minimal effort to make. The copyrights to the original works featured in reaction videos, however, usually belong to someone other than the content creator. As such, reaction videos may violate the authorship rights provided in the Copyright Act. That said, because reaction videos often critique, alter, or parody the featured video, a fair use defense may apply.
Accordingly, this article details the fair use analysis that may be applied to a reaction video, and describes particular contributions a content creator can add to a copyrighted work that may weigh in favor of fair use. In particular, this article provides insight on two recent district court cases that applied the fair use analysis to reaction videos.
Fair Use Factor 1: Purpose and Character of the Use
The key inquiry in determining the purpose and character of a new work is “whether and to what extent the new work is ‘transformative.’” To qualify as transformative, a work must not “merely supercede the objects of the original creation but rather adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” So, in the context of a reaction video, simply recounting what is shown in a featured video may weigh against a finding of fair use. Conversely, comment or criticism of the featured video may be sufficient to qualify as transformative. For instance, in Equals Three, LLC v. Jukin Media, Inc, the court noted that adding jokes, narration, graphics, or editing weighed in favor of fair use.
Similarly, courts have held that denigrating a featured video can be transformative as well. For example, in Hosseinzadeh v. Klein, the court found that mocking, sarcastically complimenting, mimicking, and expressing irritation towards a video constituted “quintessential criticism and comment.”
The first fair use factor also takes into account the commercial nature of the work. Reaction videos will often be commercial in nature, because the aim of such videos is to gain views and to thereby derive ad revenue for the content creator. However, courts may balance the commercial nature of a reaction video with the level it transforms the featured video. Thus, courts may also look to the second fair use factor, the nature of the copyrighted work, to further inform its determinations and analysis.
Fair Use Factor 2: Nature of the Copyrighted Work
This fair use factor examines the extent to which the copied work is creative and whether it is unpublished. Most works that are featured in a reaction video will qualify as “creative,” as even “point-and-shoot” style videos have been found to be creative. But while creative works are generally protected by copyright law, this factor carries only slight weight where the new work is transformative. Further, though copying of a previously unpublished work will generally weigh against a finding of fair use, the featured work in a reaction video will almost always be previously published. Accordingly, this factor will warrant only passing consideration by a court, as long as the new work is transformative.
Fair Use Factor 3: Amount and Substantiality of the Portion Used
The third fair use factor is a relative determination that weighs the amount and qualitative value of the original work against a defendant’s justification for the use. Reaction videos will often play an original work in its entirety, or nearly in its entirety. However, this is not dispositive of the inquiry. For instance, in Equals Three the court found that the third fair use factor weighed in favor of the defendant, even though the defendant used most or all of the original works at issue. And in Klein, the court found that this factor was neutral, since “[w]ithout using actual clips [from the original work], the commentary and critique here would lose context and utility.” Accordingly, it is unsurprising and apparent that the level of transformativeness in a reaction video continues to determine how much of an original work can be used and still come within the purview of a fair use defense.
Fair Use Factor 4: Market Harm
The last fair use factor weighs the commercial impact that an allegedly infringing work has on an original work. In the context of reaction videos, this harm manifests itself in the number of “views,” or lack thereof, received by the original work. But while platforms such as YouTube allow anyone to view daily viewership statistics for any given video, merely showing a decrease in views after publication of a reaction video is not enough. In Equals Three and Klein, for example, the courts determined that bare allegations of market harm failed to establish that the reaction videos in question impacted viewership of the original works. And such a correlation between the reaction videos and the original works would not necessarily favor the copyright holder. That is, the fourth fair use factor does not simply relate to overall market harm. Rather, “the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it.”
In summary, it continues to be the case that no single factor is dispositive of the fair use analysis. Of these factors, however, it is clear that the crucial inquiry with regard to reaction videos is the extent to which the video is transformative. As the court in Klein noted, “[v]ideos within this genre vary widely in terms of purpose, structure, and the extent to which they rely on potentially copyrighted material.” Accordingly, while interspersing short segments of an original work with criticism, commentary, or jokes directed to that work may qualify as a fair use of that work, as was the case in Equals Three and Klein, reaction videos that merely amount to “a group viewing session without commentary,” might not qualify. And, though the only two district court cases that address this issue largely favored the defendants, neither court ruled that “all reaction videos constitute fair use.”
Ultimately, content creators that publish reaction videos should be mindful of the extent to which the video exploits the original work. Where a reaction video simply republishes an original work to serve the same purpose or send the same message as the original, fair use is an unlikely defense. However, if the reaction video uses the original work as a foil to create something new, as was the case in most videos at issue in Equals Three, then a finding of fair use is probable, because the latter video caters to a different audience than the original and requires additional creative effort on the part of the content creator. The same seems to be true if the reaction video is created to explain appreciation for, or, as in Klein, disdain for the original. Thus, content creators may still create reaction videos that are protected by fair use by providing additional jokes, narration, criticism, graphics, and/or editing for the original copyrighted videos, especially where short clips of the original videos are interspersed with such meaningful, and original, contributions.
 See Nathan McAlone, Meet the YouTube Millionaires, BUSINESS INSIDER (Dec. 9, 26 10:23 AM), http://www.businessinsider.com/youtube-stars-who-make-the-most-money-in-2016-2016-12.
 17 U.S.C. §§ 106-122.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
 Equals Three, LLC v. Jukin Media, Inc., 139 F.Supp.3d 1094, 1104 (C.D. Cal. 2017).
 16-cv-3081 (KBF), 2017 WL 3668846, at *6 (S.D.N.Y. Aug. 23, 2017).
 In Equals Three, for example, the court determined that the content creator’s commercial use of copyrighted videos owned by the plaintiff was outweighed by the defendant’s transformativeness. 139 F.Supp.3d at 1105.
 Id. at 1106 (“Here, the largely ‘point-and-shoot’ style videos do not exhibit the cinematic masterpiece of many famous film directors. Nevertheless, the Court cannot say that they convey mainly factual information.”).
 For instance, in Equals Three, the court found that the second fair use factor favored the plaintiff, but placed minimal emphasis on this determination. See id.
 Id.; Hosseinzadeh v. Klein, 2017 WL 3668846 at *6.
 2017 WL 3668846 at *7.
 Campbell, 510 U.S. at 592; see also Klein, 2017 WL 3668846 at *9-10 (Weighing the last factor in favor of the defendants because a scathing criticism of the original work did not amount to a market substitute of that work).
 2017 WL 3668846 at *9, n.1.
 Equals Three, 139 F.Supp.3d at 1105.
© 2017 McDonnell Boehnen Hulbert & Berghoff LLP
snippets is a trademark of McDonnell Boehnen Hulbert & Berghoff LLP. All rights reserved. The information contained in this newsletter reflects the understanding and opinions of the author(s) and is provided to you for informational purposes only. It is not intended to and does not represent legal advice. MBHB LLP does not intend to create an attorney–client relationship by providing this information to you. The information in this publication is not a substitute for obtaining legal advice from an attorney licensed in your particular state. snippets may be considered attorney advertising in some states.