The internet has engrained itself as an essential part of modern society. From e-commerce to streaming tv shows, so much of contemporary life involves the internet. It feels only natural that a new form of entertainment has risen from internet use in the last decade. Enter the online “live streamer,” or streamer for short.
Streamers have become increasingly popular. Streamers are essentially internet personalities who record in real time, also called livestreaming, to an online audience. They use streaming platforms; most notably Twitch and YouTube. These streams often include the streamer talking about current events, playing video games, or “reacting” (known as a reaction streamer) to other online content.
The often exaggerated reaction of a streamer plays an important role in the audience’s entertainment. A streamer’s reaction may include their own commentary on a work, or simply acting extremely scared while watching a spooky video.
Controversy brewed in 2023 for some reaction streamers (like Xqc and Hasan Piker). This controversy stemmed from these streamers (as well as others) broadcasting another creator’s content while providing very little reaction, if any at all. For example, when a long period goes by on the stream without a reaction, often playing the entirety of someone else’s content without reacting, the more upset other the other content creators become.
The lack of reactions demonstrates an inability to transform the work into something else (this will be important later). What’s also important is how much of the content is being used. Some reaction streamers only use small clips, but the more problematic ones often use the entirety of the other creator’s content with little to no reaction or commentary. Further, these reaction streams may not even credit the creators of the video. From here on, this post will refer to the “content creator” as the creator of the original video and “streamer” as the creator that videos a reaction to the content creator’s original video.
I found this recent controversy to be particularly interesting from an intellectual property (IP) perspective. Remember, reaction streams include a streamer viewing someone else’s content. This is where things get controversial, and more interesting from an IP perspective.
Image licensed through UnSplash.
Some content creators (not the reaction streamers) assert that these reaction streams are essentially copyright infringement. That is, the original content creators have the exclusive right to publicly display their work by posting it online (the right to public display is one of the rights given to the copyright holder). Therefore, a reaction streamer may be violating this exclusive right to display the work when they do so without permission. This is because the streamer displays to their audience the content they’re reacting to, except the streamer may not have any reaction for a substantial period while playing a substantial portion or even all the content. We’ll get more into this later, but a notable copyright infringement defense, known as fair use, partly looks to how much of the copyrighted work is used as well as how “transformative” the new work is.
In terms of reaction streamers, the argument for fair use would likely include that their reactions are essentially transforming the work into something else. However, regarding the streamers in controversy, in many of their streams the “reaction” is notably absent. To understand this all, we will first discuss what a copyright is and what protections they bring, as well as the fair use defense.
Copyright Protection
To have any merit, the content creator’s argument hinges on them having a copyright in their content. A work is subject to copyright protections when it is original, fixed in a tangible medium, and has minimum creativity. Case law has defined when a work is original to its author to mean that a creator made something with minimum creativity. Minimum creativity is a very low bar to meet. A work with copyright protection may be, for example, a photograph which, typically, has minimum creativity and is original to the photographer because the photographer took the picture. Thus, it would be subject to copyright protections.
The fixed tangible medium at issue here is usually a video posted on the internet by a creator. Since every video is different, it would require an independent analysis to deem whether a video has copyright protections. For the sake of this blog, we will assume that these videos meet the requirements for a copyright similar to a photograph.
When a work is subject to copyright protections, certain rights are given to the copyright owner. These rights are the right to copy, the right to distribute, right to create derivative works, right to public performance, and the right to public display. Copyright infringement is when someone other than the copyright owner exercises one of these rights without permission. When it comes to reaction streaming, the right to distribute and the right to public display the content creators work might be violated.
The Fair Use Defense
Fair use is an affirmative defense to copyright infringement, meaning that even if there is technically infringement, it’s okay so long as it falls under fair use. Typically, fair use means the use of a work was for the purposes of criticism, comment, news reporting, teaching scholarship, or research. What’s key within the fair use defense is an element called transformative use. This basically means that the use of the copyrighted work must be highly transformative, or, alternatively, a new work is so transformative that is essentially a new work in and of itself. That is, there may be fair use if the work has a transformative use, like education, or is a transformative work in its own right.
So, for reaction streamers, their reactions and comments would have to be transformative enough for the fair use defense to have any merit. Simply saying that your reaction falls under fair use at the beginning of the video, as many streamers and other internet personalities seem to do, is not enough. Thus, the key question is when is a work transformative enough?
Courts use four factors when determining whether the use is fair use. These factors include the purpose and character of the defendants use, the nature of the plaintiff’s work (the plaintiff is the person suing someone), the amount and substance taken, and the effect on the use on the potential market for or value of the work. Note that not all factors must be met, they are simply analyzed and weighed against each other. If a work is highly transformative, that changes how the first three factors are weighed. Think of a scale, if these factors tip the scale towards being more transformative, then the court is more likely to find that there was fair use.
So, for a reaction streamer, to make the work transformative, the reaction streamer may frequently stop the content they are viewing to add commentary or explain their reaction. If the streamer is using small clips of the content they’re viewing and adding a large amount of commentary, this favors the stream being a transformative work. In this case, the viewer would be tuning in to see the commentary, not the original content, at least in theory. In essence, the purpose and character of the work changed. On the other hand, if there is limited to no commentary, with the entirety of the content being streamed without interruption, this would not favor the stream being a transformative work.
What does this mean for streamers? Again, it depends (classic legal answer I know). If a reaction streamer has strong reactions throughout, frequently breaks up the video to add commentary, and minimizes the use of the work, then this would favor fair use. If a reaction streamer essentially creates new content with their streams, the streams are a transformative work, and strongly favors fair use. However, when a streamer simply broadcasts another person’s work while the streamer steps off camera, this would favor against fair use.
In my opinion, the effect on the plaintiff’s potential market, the fourth factor of the fair use test, is of particular importance in an infringement case. Streamers argue that when they react to a content creator’s video that it creates publicity and attention to the work. Thus, the streamer ends up increasing the potential market for the content creator. However, there is an argument that streaming someone else’s content takes away from their actual market. People who view the content on the reaction stream may not view it on the platform the content creator posted it on. In the economy of internet media, this could literally take money away from the content creator.
Final Thoughts
What are the takeaways from all this? Fair use is a complicated, affirmative defense that content creators should be aware of. Indeed, streamers should pay attention to the fair use factors when reacting to another creator’s content. They should especially focus on trying to create a more a transformative work that favors fair use.
Bryan Bott
Senior Editor
Loyola University Chicago School of Law, JD 2024