INTELLECTUAL PROPERTY RIGHTS

PROJECT ON:

REACTION VIDEOS: FAIR USE OR NOT?

SUBMITTED BY:

Arsh Singh (19BBA006)

Nayanika Mishra(19bba028)

6TH SEMESTER

B.B.A., LL.B.

of

NATIONAL LAW UNIVERSITY, ODISHA

Under the Guidance

Of
Ms. Rujitha Shenoy
(Assistant Professor of Law)

(Word Count: 5,146)

National Law University, Odisha [Intellectual Property Rights Project]

ACKNOWLEDGMENT

Project Work is a complete learning experience with the objective to provide students with the
opportunity to synthesize knowledge and experiences from different areas of learning, and
critically applying it as well to real life situations and compile it all together.

As a matter of first importance, we want to express our sincere thanks to our subject teachers
Ms. Rujitha Shenoy for sharing their valuable thoughts for the successful completion of project
work. It was just under their direction and consistent guidance that we could finish our project
work. Their sources of information and learning were the basis of understanding the essentials
of the project.

“Gratitude is the fairest blossom which springs from the soul.”

~ HENRY WARD BEECHER

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ABSTRACT

Millions of content creators from all around the world disseminate their content to people
across the globe through various online platforms such as Instagram and YouTube. The
empirical evidence of their popularity is found in the large viewer base that these videos have
amassed in recent years. This creates an online paradise for digital content creators looking
to demonstrate their creativity in order to gain followers and monetize their work. In broad
terms, the contents can be classified as either the creator's direct creation or a product of
previously existing content, i.e., a principal content. One of the latter's subcategories that has
gained popularity in recent years is commonly referred to as 'Reaction Videos.' A reaction
video is a type of digital content in which an individual or group of individuals record their
reactions to a 'principal video' (for example, a film trailer, movie clip, etc.). Today, a popular
format is a split-screen presentation in which one side features the primary video and the other
side features the creators reacting to the primary video in real time. This may be followed by
a lengthy discussion of the creator's perspective, comments, criticisms, and so forth. The format
of these reaction videos raises serious concerns about infringement of intellectual property
rights, specifically the copyright of the creator of the primary video. The question that arises
is whether the use of the primary video for the purpose of reacting, reviewing, or criticising
falls within the parameters of the 'fair use' or 'fair dealing' exceptions. Given the absence of
any judicial precedent specifically addressing the above questions, this paper will attempt to
address them by analysing the legal position regarding fair usage or fair dealing through the
lens of various domestic and international case laws. By doing so, the authors attempt to
establish a standard for answering the preceding questions in relation to any reaction video.

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TABLE OF CONTENTS

ABSTRACT ..............................................................................................................................- 2 -

TABLE OF CONTENTS .............................................................................................................- 3 -

TABLE OF CASES ....................................................................................................................- 4 -

INTRODUCTION ......................................................................................................................- 5 -

RESEARCH METHODOLOGY..................................................................................................- 7 -

OBJECTIVE ..........................................................................................................................- 7 -

RESEARCH QUESTIONS .......................................................................................................- 7 -

RESEARCH METHOD ...........................................................................................................- 7 -

SCOPE & LIMITATIONS ........................................................................................................- 7 -

FAIR USE: AN EXCEPTION TO COPYRIGHT INFRINGEMENT ..................................................- 8 -

REACTION VIDEOS: FAIR USAGE OR NOT? ........................................................................- 11 -

I. Do Reaction Videos fall under the category of ‘Review’ or ‘Criticism’? .......... - 11 -

II. Are Such Videos Sufficiently Transformative or not? ....................................... - 12 -

III. Is Market Harm Relevant? ................................................................................. - 16 -

CONCLUSION AND SUGGESTIONS ........................................................................................- 17 -

BIBLIOGRAPHY ....................................................................................................................- 18 -

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TABLE OF CASES

INDIAN CASE LAWS

Super Cassettes Industries Ltd v Hamar television Network pvt ltd 2011 (45) PTC 70 (Del) 8

Ashdown v Telegraph Group Ltd v AN Parasuraman AIR 1959 Mad 410 9

The Chancellor Masters & Scholars v Narendera Publishing House 2008 (38) PTC 385 (Del) 9

M/s Blackwood & Sons Ltd v AN Parasuraman AIR 1959 Mad 410 10

Ramesh Chaudhary v Ali Mohd AIR 1965 J&K 101 11

Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and 13
School and Ors v BD Bhandari and Ors 2011 (47) PTC 244 (Del)

Syndicate Press of University of Cambridge v Kasturilal Lal and Sons 2006 (32) PTC 487 (Del) 13

ESPN Star Sports v Global Broadcast news ltd and ors, 2008 (36) PTC 492 (Del) 16

FOREIGN CASE LAWS

Ladbroke (Football) Ltd. v William Hill (Football) Ltd (1964) 1 All ER 465 10

Equals Three LLC v Jukin Media Inc 139 F Supp 3d 1094, 1104 12

Hosseinzadeh v Klein 2017 WL 3668846 12

Sony Corporation of America v Universal City Studios 464 US 417 (1984) 13

Campbell v Accuff-Rose Music 510 US 564 (1994) 13

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INTRODUCTION

This digital era is witnessing a large amount of information/data being transmitted via online
means.1 Several social media websites offer a platform for the video content creators to
disseminate their content globally.2 YouTube and Instagram are the most popular platforms.
They provide a wide range of content. This has helped them attract over three billion monthly
users who spend over a billion hours watching videos online.3

It is safe to assume that content creators play a significant role in their work. In practise, the
content they create is either their direct creation or a by-product of previously created content,
i.e., a principal content. The latter type is divided into several categories. 'Reaction videos,' one
of those categories, has recently gained widespread popularity.4

A reaction video is essentially a digital content format in which a specific individual or group
of individuals record themselves reacting to an already existing video, or say, a 'principal video'
(for example, a television episode, film trailer, movie clip, Instagram reels, etc.).5 The popular
way of recording the reaction videos consists of a split-screen. One side of the split screen
features the existing video/principal video. One the other side, the creators record their real-
time reaction to the principal video. This reaction often includes opinions, comments,
criticisms, etc.6 Two important points can be deduced from the preceding background. One,
the creation of such videos necessitates the creators' creativity and hard work7. Second, the goal
of making a reaction video is to demonstrate creativity in order to gain followers and monetary
incentives.

1
Marcel Becker, ‘Privacy in the Digital Age: Comparing and Contrasting Individual versus Social Approaches
towards Privacy’ (2019) 21 Ethics and Information Technology 307.
2
ibid.
3
Andrew Beattie, ‘How YouTube Makes Money Off Videos’ (Investopedia)
<https://www.investopedia.com/articles/personal-finance/053015/how-youtube-makes-money-videos.asp>
accessed 19 April 2022.
4
Shephali Bhatt, ‘How Reaction Videos Took Over The Content Universe Amid The Pandemic - The Economic
Times’ <https://economictimes.indiatimes.com/tech/technology/the-phenomenon-that-is-reaction-videos-on-
youtube-and-in-india/articleshow/80144051.cms> accessed 22 April 2022.
5
ibid.
6
ibid.
7
Vogele, Jessica ‘Where's the Fair Use: The Takedown of Let's Play and Reaction Videos on YouTube and the
Need for Comprehensive DMCA Reform. Touro L. Rev (2017), <
https://heinonline.org/HOL/Page?handle=hein.journals/touro33&div=33&g_sent=1&casa_token=> as accessed
4th April 2022.

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However, there may be some doubt about the reaction videos. Is the sole credit for the
'creativity' in the content being streamed in a reaction video given to the reaction video's
creator? Or whether it constitutes a violation of the creator of the main video's copyright.

The above-mentioned point will be investigated as part of this project work. It would primarily
address whether this use of the main video for reacting, reviewing, or criticising would fall
within the parameters of the statutory exception of ‘Fair use’8 or not.9

The first part of the project work would be an explanation of the fair use exception and the
jurisprudence on the subject. The factors that may help categorise videos to fall within the
exception of fair use would be laid out in the second part. Following that, the reaction videos
would be tested on those factors in order to be classified. The comparison with book reviews
and other reviewable works would be completed at the same time. Finally, the authors would
argue that the perspective of a viewer on the reaction video can provide the best solution to this
quandary.

8
The Copyright act 1957, s 52.
9
Spencer, Mikayla ‘Storytime: We’re Being Sued”–Copyright Infringement and Fair Use in the Digital Era.’ The
University of Cincinnati Intellectual Property and Computer Law Journal (2021), <
https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1040&context=ipclj> as accessed 17th April 2022.

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RESEARCH METHODOLOGY

OBJECTIVE

The objective of the research is to analyse the position of law around fair usage or fair dealing
by referring various domestic as well as international case laws. By doing so, the authors try to
lay down a test to check, whether any reaction video is infringing some copyright or not.

RESEARCH QUESTIONS

The project aims to find answers to the following research questions:

▪ Whether the usage of a third-party video/ principal video for the purpose of recording
one’s reaction to the same, falls within the exception of ‘fair use’ or ‘fair dealing’?

RESEARCH METHOD

A Doctrinal method of research is sought to be done with an exploratory, critical, and analytical
approach. Various facts, texts, and reports will be analysed and interpreted to achieve the
objective of the research.

SCOPE & LIMITATIONS

There does not exist any domestic judicial precedent dealing with the above questions
specifically. Therefore, in order to achieve the objective of the research, the Indian
jurisprudence on the exception of fair use has been coupled with the us case laws.

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FAIR USE: AN EXCEPTION TO COPYRIGHT INFRINGEMENT

The use of a copyrighted work is permitted under the terms of 'Fair Dealing' or 'Fair Use.' 10
The Indian Copyright Act 1957 (hereinafter referred to as the 'Act') establishes a long list of
exceptions to copyright infringement. Section 52(1)(a) has defined three situations in which
the use of a copyrighted work has been exempted from any liability for such copyright
infringement on the basis of 'Fair Use.'

The three situations in which an alleged infringer can show a court that he or she used the
complainant's copyright work for the purposes of, “first, his/her private or personal use, that
is, without any public distribution or commercial purposes; second, reviewing or criticising it;
and third, reporting a current event, which includes a public lecture.” It should be noted that,
in general, in order to invoke the fair dealing exception, the alleged infringer's use of the
copyrighted work should constitute a relatively small portion of the work created by the alleged
infringer through its use. 11

There are several factors that are looked into in order to determine whether a usage of the
copyrighted work amounts to a fair use under Section 52(1)(a). The most important of these
factors is the purpose for which the copyrighted work has been used. Sub-clauses (i) to (iii) of
Section 52(1)(a) essentially list the three purposes which constitute the analysis under this
factor. It has to be noted that the determination of the purpose of the usage of the original work
is not limited to merely determining whether the purpose falls within any of the three purposes
enlisted under Sections 52(1)(a)(i) to (iii).12 It is also important to establish that the subsequent
work serves a purpose that is significantly different from the purpose served by the previous
work.13

The next fact look into is the nature of the usage, i.e., where the alleged infringing work has
used the essential parts or feature of the copyrighted work, then such usage may be suspect of
not being fair under Section 52(1)(a).14 The usage to be qualified as fair use, it can make use

10
The Copyright act 1957, s 52(1)(a).
11
Super Cassettes Industries Ltd v Hamar television Network pvt ltd 2011 (45) PTC 70 (Del) [88]-[89].
12
ibid.
13
Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and School and
Ors v BD Bhandari and Ors 2011 (47) PTC 244 (Del).
14
Ashdown v Telegraph Group Ltd v AN Parasuraman AIR 1959 Mad 410.

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of some of the features of the original work, in such a manner that it does not affect the original
work itself.15

The extent of transformative character of the subsequent work also forms part of the fair use
analysis.16 It becomes important to determine the degree of creativity, skill and labour
employed by the alleged infringer to come up with the subsequent work. That is to say, the
subsequent work should not appear as if it were a mere ‘body-double’ or a substitute of the
original work, it needs to be transformed sufficiently to give it a flavour of originality by the
use of one’s own creativity, skill and labour.17 The changes or additions made to the original
work should not be superficial, where the basic character of the two works remains the same.18
The subsequent work cannot be protected as fair use, if it has merely acted as parasite over the
creativity, skill and labour of the owner of the original work. The degree, however, of the
transformation and creativity of the subsequent work would depend upon the nature of the
content created.

The test of transformation and creativity arises out of Section 14 of the Act,19 which prohibits
reproducing a “substantial part thereof” of the original work. What constitutes “substantial
part” is not defined under the Act. However, a reference to the judicial precedents would throw
some light on the same.20 The reproduction of the essential feature of a copyright work would
amount to reproducing substantial part of the original work, and would therefore amount to
copyright infringement.21 Where the similarity in the subsequent work is not substantial in
nature, such usage cannot be held to be infringing the copyright of the original work.22

Another very important factor which is considered for determining the applicability of the fair
use exception, i.e., the effect of the usage in the alleged infringing work on the original work
itself.23 In other words, it has to be satisfied that the usage of the original work was done in a

15
ibid.
16
The Chancellor Masters & Scholars v Narendera Publishing House 2008 (38) PTC 385 (Del) [23].
17
ibid.
18
ibid.
19
The Copyright act 1957, s 14.
20
Orient Longman Limited v Inderjeet Anand 2005 (30) PTC 11 (Del).
21
Ladbroke (Football) Ltd. v William Hill (Football) Ltd (1964) 1 All ER 465.
22
Macmillan & Co Ltd v K and J Cooper AIR 1924 PC 75, 81.
23
Super Cassettes, (n 18).

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manner that does not affect the owner’s ability to market the copyrighted work. 24 The
copyrighted work should not be harmed by the subsequent work.

It has to be noted that to fall within the exception of fair dealing, the subsequent work should
not be created with the intention of competing with the original work or its copyright owner.25
The subsequent work cannot be said to have fairly used the original work, where the alleged
infringer creates such subsequent work with the intention of deriving profits by competing with
the original work.26 The user, i.e., the alleged infringer needs to establish his/her bona fide
intentions behind using the original work.27

The above analysis of the law on fair dealing in India gives us the following factors that needs
to be tested in determining whether an alleged work falls within the exception of fair dealing:

(i) The purpose of usage of the original work;

(ii) The transformative character of the subsequent work; and
(iii) The effect of subsequent work on the market of the original work.

For the purpose of our discussion vis-à-vis the applicability of the fair use or fair dealing
exception on Reaction Videos, the most important statutory determinant would be whether
such reaction videos constitute as reviewing or criticising the original work under Section
52(1)(a)(ii) of the Act. The subsequent chapter looks into above question specifically by
analysing the validity to the fair use exception for Reaction Videos by testing these videos on
the three tests identified in this chapter.

24
ibid.
25
M/s Blackwood & Sons Ltd v AN Parasuraman AIR 1959 Mad 410.
26
ibid.
27
ibid.

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REACTION VIDEOS: FAIR USAGE OR NOT?

This chapter will test the applicability of the exception of ‘Fair Use’ to Reaction Videos on
three tests, first, do these videos qualify as a work of ‘review’ and/or ‘criticism’ under Section
52(1)(a)(ii); secondly, do these videos possess sufficient transformative character to escape the
provisions of Section 14 of the Act; and lastly, are these videos created to cut the market of the
original work.

I. DO REACTION VIDEOS FALL UNDER THE CATEGORY OF ‘REVIEW’ OR ‘CRITICISM’?

The Copyright act provides that the criticism or review of a work would not lead to copyright
infringement.28 Let us first understand, that how review and criticism has been defined by the
courts. The word ‘review’ has been held to be a summarisation of the principal work. 29 This
summarisation is done with the intention that if anyone goes through such summarisation, he
should get a fair idea of the principal work.30 Furthermore, ‘criticism’ has been defined as,
explaining the merits and demerits of the principal work.31

There are two ways in which review or criticism can be done. First is by way of commenting
upon the philosophy behind the principal work.32 Such kind of review or criticism is less likely
be held to be as infringement.33 Second is by way of quoting extracts from the principal work.34
In this kind of review/criticism, things get more complex. We are concerned with the latter as
the format of a reaction video is that of a split-screen.

For preventing the infringement of the copyright of other’s work, the following must be kept
in mind.35 (I) Due acknowledgment has been given to the author of the original work.36 (II)

28
The Copyright act 1957, s 52(1)(a)(ii).
29
Ramesh Chaudhary v Ali Mohd AIR 1965 J&K 101.
30
ibid.
31
ibid.
32
Ayush Sharma, ‘India Perpsective of fair dealing under copyright law’, (2009) 14 Journal of Intellectual
Property Rights 555.
33
ibid.
34
ibid.
35
Lionel Bently and Brad Sherman, Intellectual Property Law (4th edn., Oxford University Press 2014) 146.
36
ibid.

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There is an original mental exercise undertaken by the reviewer/critic; (III) The intention must
not purely be to make one’s own programme to be more entertaining/interesting.37

To understand it further, the judgments on this aspect is desirable to be seen. As there have
been no case laws on this in the Indian jurisprudence, US case laws might act as a torchbearer.
For instance, the court in the case of Equals Three LLC v. Jukin Media Inc, has held that the
addition of “jokes, narration, graphics, or editing” should weigh in the favour of fair use. 38
Also, in the case of Hosseinzadeh v. Klein, it was found that “mocking, sarcastically
complimenting, mimicking, and expressing irritation towards a video” shall be treated as
“quintessential criticism and comment.39

From the preceding judgments, it is clear that everything must come down to the Creator's
"additions." In other words, it must be determined whether the Creator's emotional responses
contribute to the main content or not. It must not be the case that the main content is being
played solely to attract viewers or, in other words, to 'beautify' one's own content.40

Such, addition may be by recording emotional reaction such as jokes, mocking, mimicking.
From this perspective, the slightest addition seems to make a case for use. However, there is
another qualifier to this.

The “addition” made by the Creator must also be of a transformative character. This has been
discussed in detail in the next part to this chapter.

II. ARE SUCH VIDEOS SUFFICIENTLY TRANSFORMATIVE OR NOT?

Section 14 of the Act provides that where an alleged infringing work uses a ‘substantial part’
of a copyright work without permission, such usage would be violative of the copyright of the
owner.41 It is true that Section 52(1)(a)(ii) provides that where the subsequent work uses the
original work for the purposes of ‘review’ and ‘criticism’ it would be eligible to be exempted
from being declared as an infringing work.42

37
ibid.
38
Equals Three LLC v Jukin Media Inc 139 F Supp 3d 1094, 1104.
39
Hosseinzadeh v Klein 2017 WL 3668846, p 6.
40
Supercassettes, (n 18).
41
The Copyright act 1957, s 14.
42
The Copyright act 1957, s 52(1)(a)(ii).

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However, the fair dealing exemption cannot be granted if the subsequent work has used a
considerable part of the original work. This leads one to the analysis of whether the subsequent
work has been transformed in its character by the use of the alleged infringer’s own skill and
creativity.43 The transformative character of the subsequent work would further yield in the
applicability of the fair dealing exception.44

The facet of ‘transformative character of the subsequent work’ or for the sake of brevity ‘the
test of transformation’, was developed by the American courts.45 It basically means that a mere
copying of the original work without any addition to the same by the use of skill and creativity,
would make the subsequent work deficient of transformative character, and therefore, would
not be eligible to claim the fair use exception.46 In explaining the crux of this test, it has been
held that:

“Where the theme is the same but is presented and treated differently so that
the subsequent work becomes a completely new work, no question of violation
of copyright.”47

Further, it has already been observed in the previous chapter that changes or additions made to
the original work should not be superficial, where the basic character of the two works remains
the same.48 The subsequent work needs to be created with the employment of sufficient degree
of skill and/or creativity of the alleged infringer in order to give the subsequent work its own
identity and originality independent of the original work.49

We again turn towards the US jurisdiction for the observations made on the transformative
character of reaction videos, for the lack of such cases in India. It has been held that reaction
video though uses copyrighted work for the purpose of creation of their content, the question
of infringement weighs in the favour of such creators, for the transformative character of the

43
Laura A Heymann, 'Everything Is Transformative: Fair Use and Reader Response' (2008) 31 Colum JL & Arts
445.
44
ibid.
45
Sony Corporation of America v Universal City Studios 464 US 417 (1984); Campbell v Accuff-Rose Music 510
US 564 (1994).
46
Syndicate Press of University of Cambridge v Kasturilal Lal and Sons 2006 (32) PTC 487 (Del) [7].
47
Chancellor Masters Case 2008 (38) PTC 385 (Del) [28].
48
Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and School and
Ors v BD Bhandari and Ors 2011 (47) PTC 244 (Del).
49
ibid.

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reaction videos.50 Moreover, it is a fact that reaction videos usually play the original work in
their entirety or almost in their entirety, this use is also justified by the transformative character
of such videos.51 The usage of the work is justified by the fact that any other manner otherwise
than playing the original work, the creator’s reaction, review and/or criticism would lose
context.52

Now let us apply the above position of law on the test of transformation to the general design
of a Reaction Video. It is first of all true that the reaction videos use the original content in its
entirety or at least substantially, and therefore, prima facie it attracts the provisions of Section
14 of the Act. This prima facie satisfaction becomes the ground for seeking an exception form
the applicability of Section 14.53

We have already seen that reaction video would ideally satisfy the requirement of the purpose
as laid down under Section 52(1)(a)(ii), i.e., a work of ‘review’ or ‘criticism’.54 This brings us
to the question of whether these videos attain a completely different character than the original
video, i.e., do the creators of these reaction video employ sufficient degree of skill and
creativity in reacting to such videos, and thereby, transforming it into a completely new content.
In applying the above law, the answer to this question seems to be in affirmative.

An ideal reaction video would first show the entire or a significant portion of the original video
in a split screen, with the reaction video creator reacting in the background. This first aspect of
a reaction video requires a degree of video editing and acting abilities.

After the original video has ended, the next part of the reaction video begins. The creator would
review the original video on a moment-by-moment basis in this segment, explaining the pivotal
moments of the original video. This segment requires some skills that are required to
understand the contents of the videos as well as to articulately express the creator's
understanding.

50
Equals Three LLC v Jukin Media Inc 139 F Supp 3d 1094, 1104.
51
ibid.
52
Hosseinzadeh v Klein 2017 WL 3668846, p 6.
53
The Copyright act 1957, s 14.
54
The Copyright act 1957, s 52(1)(a)(ii).

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The final segment usually features the creator expressing his personal thoughts on the original
video's merits or demerits. This is also typically done on a case-by-case basis. This segment
may also include the creator sharing personal experiences related to the original video's theme.
This segment also necessitates a certain amount of creativity and skill in presenting the
criticisms or even merits of the original content in a way that is interesting and fun for the
viewers.

In addition to the above segment-by-segment analysis of the need for skill and creativity in
various segments of a reaction video, when viewing these types of videos in their entirety, it is
clear that the creators of these videos usually put in a lot of effort by employing their skill and
creativity to make the video interesting. This can be accomplished by inserting some amusing
sounds at various points throughout the video, or by making use of trending meme references
to make their reactions more relatable and catchier. As a result, it is obvious that a reaction
video comprised of all of these segments would typically satisfy the requirement of skill and
creativity.

Another factor to consider when determining the transformative nature of reaction videos is
that these videos take on a completely different identity and character than the original content.
That is to say, a reaction video to, say, a stand-up comedy video would not be a stand-up
comedy video in and of itself. Similarly, a reaction video to, say, a movie trailer would not be
a movie trailer in and of itself. This can also be viewed through the eyes of a consumer, as
illustrated in the following example:

Let us suppose that Mr. X is going through the reel section of the Instagram, and wants to see
a music video of a singer, Mr. Y. Apparently, Mr. Z has already created a reaction video series
on the music videos uploaded on Instagram by Mr. Y. Now Mr. X would have two options to
view the content present in Mr. Y’s music video, first, by directly viewing the videos uploaded
by Mr. Y; or second, by viewing the reaction videos of Mr. Z. It is, however, pretty obvious
from reasonable man’s point of view that Mr. A would not go to the reaction videos uploaded
by Mr. Z, for the purpose of listening to music, rather he would directly view Mr. Y’s videos.
Mr. X might still go ahead and view Mr. Z’s reaction on Mr. Y’s video, but that would not be
for listening to music, rather it would be for watching Mr. Z’s reaction, views, criticisms etc.
of Mr. Y’s videos.

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The above example further shows that a reaction video is nowhere close to being the same in
character or nature to that of the original video. The employment of skill and creativity of the
creator of such reaction videos, transforms the reaction video into a completely new form of
content. Therefore, the above analysis clearly shows that a reaction video would ideally be
sufficiently transformative to be eligible for the exception of fair dealing under the Act.

III. IS MARKET HARM RELEVANT?

Though, the transformative character of the content is enough to satisfy the defence of fair use,
the ‘market harm’ can also be used as a relevant indicator.55 It is important to note that this
factor has not been much popularly used in India.56 The main reason behind its unpopularity in
India may be that the ‘market harm’ is not, in isolation, a sufficient indicator or even a strong
indicator to justify the defence of fair use. It would have to be seen with the other factors to
justify a case.

The most popular type of market harm which is examined is “potential competition”.57 It is
seen that whether the new content can be a potential competition to the previous content. 58 In
the case of reaction videos, the obvious answer is no. The simple reason for this is that the
reaction videos capture an emotional reaction to the main video. In fact, it's safe to say that the
reaction videos are, at best, complimentary to the original videos.

In case of reaction videos, the commercial impact can be observed by the number of views or
likes on a video.59 In the current scenario, it's difficult to imagine a situation in which a reaction
video results in fewer views for the original video. The relationship between the original video's
views and the reaction video's views is difficult to prove in court. In one case, a US court went
so far as to say that simply showing fewer views on the principal video after the release of the
reaction video leads to no conclusion. 60

55
David Fagundes, 'Market Harm, Market Help, and Fair Use' (2013-2014) 17 Stan Tech L Rev 359.
56
Ayush Sharma, (n 34).
57
ESPN Star Sports v Global Broadcast news ltd and ors, 2008 (36) PTC 492 (Del) [17].
58
ibid.
59
‘Reaction Videos and Fair Use’ (JD Supra) <https://www.jdsupra.com/legalnews/reaction-videos-and-fair-use-
29395/> accessed 21 April 2022.
60
Hosseinzadeh v Klein 2017 WL 3668846, p 7.

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As a result, it is safe to say that demonstrating market harm is extremely difficult. If the reaction
video is evaluated on this criterion, it is less likely to result in an infringement. It may, however,
be combined with other factors to strengthen the case for fair use.

CONCLUSION AND SUGGESTIONS

Based on the preceding analysis, it is easy to infer that no single factor can lead to the
conclusion that fair use would apply in the case of reaction videos. However, it is easy to argue
that the transformative character is the most important factor in determining the same.

However, reaction video creators are not expected to conduct extensive research before
uploading a video. There must be some test that allows them to determine whether the use of
the video is fair use or not. The authors believe that the 'message' they are attempting to convey
is relevant to the fair use exception.

To elaborate, if the reaction video conveys the same message as the main video, it will be
insufficiently transformative. In this case, it would serve the same purpose as the main video
and may have an impact on the number of views. As a result, it would be difficult for the
reaction video to fall under the exception of fair use.

In another case, if the message it is conveying is different. Its impacting the various audiences,
it can be said that enough creative effort has been put into the video. In such a case, it may fall
under the exception of fair use.

Let's look at it from the perspective of a viewer. If the viewer's desire is satisfied by viewing
either the main video or the reaction video, it can be said that the copyright of the main video
has been violated.

For example, if a reaction video is created by recording the emotional responses of a comedy
video, the latter's copyright is likely to be infringed. This is due to the fact that the message or
purpose in both videos is the same for the viewer. In this case, it can also be seen that the
reaction video is acting as a potential competitor to the main video.

Overall, the authors conclude that the viewer's perspective is critical for assisting the message
test and determining the applicability of the fair use exception.

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BIBLIOGRAPHY

BOOKS

Lionel Bently and Brad Sherman, Intellectual Property Law ( 4th edn., Oxford 11
University Press 2014).

ONLINE ARTICLES

‘Reaction Videos and Fair Use’ (JD Supra) 6

<https://www.jdsupra.com/legalnews/reaction-videos-and-fair-use-29395/>
accessed 21 April 2022.

Andrew Beattie, ‘How YouTube Makes Money Off Videos’ (Investopedia) 5

<https://www.investopedia.com/articles/personal-finance/053015/how-youtube-
makes-money-videos.asp> accessed 19 April 2022.

Vogele Jessica ‘Where's the Fair Use: The Takedown of Let's Play and Reaction 5
Videos on YouTube and the Need for Comprehensive DMCA Reform. Touro L.
Rev (2017), <
https://heinonline.org/HOL/Page?handle=hein.journals/touro33&div=33&g_sen
t=1&casa_token=> as accessed 4th April 2022.

Spencer Mikayla ‘Storytime: We’re Being Sued”–Copyright Infringement and 6

Fair Use in the Digital Era.’ The University of Cincinnati Intellectual Property
and Computer Law Journal (2021), <
https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1040&context=ipclj>
as accessed 17th April 2022.

Shephali Bhatt, ‘How Reaction Videos Took Over The Content Universe Amid 5
The Pandemic - The Economic Times’
<https://economictimes.indiatimes.com/tech/technology/the-phenomenon-that-
is-reaction-videos-on-youtube-and-in-india/articleshow/80144051.cms>
accessed 22 April 2022.

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JOURNAL ARTICLES

Ayush Sharma, ‘India Perpsective of fair dealing under copyright law’, (2009) 11
14 Journal of Intellectual Property Rights 555

David Fagundes, 'Market Harm, Market Help, and Fair Use' (2013-2014) 17 Stan 16
Tech L Rev 359.

Laura A Heymann, 'Everything Is Transformative: Fair Use and Reader 13

Response' (2008) 31 Colum JL & Arts 445.

Marcel Becker, ‘Privacy in the Digital Age: Comparing and Contrasting 5

Individual versus Social Approaches towards Privacy’ (2019) 21 Ethics and
Information Technology 307

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