Is Making React Video’s Copyright Infringement? It Depends

There’s been an ongoing controversy surrounding react video’s on platforms like YouTube. Specifically, is it copyright infringement?

One of the things I do personally is create YouTube video’s. It’s a bit of a hybrid of Let’s Play and reaction where I commentate while playing the games in question. It’s basically my first impression of a game in question before I dive deeper into the game, playing it through as far as I can go and writing a review after.

Over the last couple of weeks, there has been an uproar over whether or not reaction video’s is copyright infringement. Some say making react video’s is copyright infringement while others say that it is, as the American’s term it, Fair Use.

Unfortunately, the answer isn’t that cut and dry. It ultimately depends on the nature of the video’s being produced as a “reaction video”. Now, if you are producing a classically seen reaction video where the creator is making comments on it throughout, then that would easily constitute Fair Use. So, for instance, a creator is working with a 10 minute video, pausing every couple of minutes, and adding their own commentary over top of it, then that is very likely to fall well within the realms of Fair Use. This is because you are critiquing the video and Fair Use allows for criticism among other things. It doesn’t take away from the original work and the new work is transformative in nature.

To further compound how safe a creator can be in ensuring video’s fall within the realms of Fair Use, clips can be used instead of the whole work. Indeed, a couple of seconds of video content from the original and commentary afterwards would very easily fall within the realm of Fair Use.

For me in particular, I’m playing a small segment of a video game, recording what I saw, and commentating over top of it at the same time (even if the game can be a bit distracting at times). The original work is a video game, not an actual video. An argument can be made that my work is transformative by taking a video game and making a video out of it because those are two very different forms of entertainment. My commentary only cements the content as Fair Use as I’m also offering criticism on top of it all.

So, does that mean the entire genre of “react” video’s is Fair Use? Given what has happened over the last few weeks, we’ve actually been seeing how react video’s can also constitute copyright infringement. Some big name creators have been essentially taking whole works, adding their face in the corner, and just watching the content without really making any commentary afterwards. In that light, the defence of criticism or critique becomes very weak because you aren’t really offering much in the way of commentary.

One major standout example was apparently xQc who was accused of stealing other people’s work for the benefit of his own channel. It got so bad that the creator was even seen leaving to take a bathroom break while leaving the video running. This over top of extended periods of time where he was just silently watching the video. xQc did defend himself by saying that because it was a Twitch stream, there was going to be moments of dead air. As Legal Eagle pointed out in his video below, that is not likely to be a good legal defence:

As the video does point out, xQc is far from the only one doing this as there are other creators who have been accused of doing such things as well.

On the one hand, I understand that creating content, like video content, can be hard at times. I’m sure it is especially difficult when you are talking about multi hour live streams on top of it all. On the other hand, that is your chosen profession. You chose to be a content creator in the first place. If you don’t want to put in the time and effort into being a creator, then an easy argument can be made that maybe you should find something else to do with your time. Just recording yourself simply watching another work and calling it a reaction video is definitely straight up lazy at that point – and I agree that can very easily constitute copyright infringement.

I also get that some people may not like someone flapping their gums throughout video’s sometimes, but if they weren’t, then those creators would be putting themselves in more immediate risk of a DMCA takedown. If they aren’t commentating over it, then they would have to find some other way to make the work transformative. Otherwise, there is that added exposure to legal liability.

Being knowledgeable about these things is definitely useful. I can also see how some creators out there can unknowingly get themselves into trouble because they are video editors and creators, not copyright legal experts. It’s a very easy situation for creators to find themselves in. The thing is, as they say in legal circles, ignorance of the law excuses no one.

Drew Wilson on Twitter: @icecube85 and Facebook.

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