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Disclaimer: This article goes into applications of Copyright law. I am not a lawyer and I have no recognized expertise in Copyright law, I just did some research. Do not take any of what I say as legal advice, and please understand that it may incorrect.

 

Oh boy, someone on the internet really fucked up today. The Fine Bros. are trying to license a format they have no ownership of. Essentially, they are selling a something that not only do they not have, but that doesn’t even exist. Let’s talk about that.

But first, just a little preamble, I try not to make content like this. I try to keep these posts focused on anime. But sometimes things come up that just need all the negative attention they can get, and though my platform is small, I will contribute to that. Heck, I only found out about this thanks to a relatively small YouTube gaming channel. But please don’t think these types of articles are what The Anime Harvest is about. Alright then, so what did the Fine Brothers do?


The Fine Brothers (a.k.a. Fine Brothers Entertainment) is a company that produces compilation react videos themed as “Kids React”, “Teens React”, “Elders React”, etc. Basically, they take some people of a certain age, show them a popular online video, film their reactions, and post them on YouTube. What they’ve done recently (January 26th, 2016) is try to get money from other people doing it too1 2.

Specifically, they released this video, along with a new segment of their website, explaining how you can give them money that, as far as we know, they have no right to. They are going to “license” their format for several of their shows, allowing other people to make similar videos and half or more of the revenue. We’ll go through it all, starting with the video, and then I’ll explain why this is appears to be total bullshit.

 

0:23-0:27: “This is not only a huge step for our company, but for the entire global media industry.”

This is something we’ll be seeing a lot of. This “global” stuff, and the Fine Bros acting like their popular but substantially insignificant videos are a blessing sent from god to give humanity a higher purpose. Neon Genesis Evangelion was less pompous than this video.

 

0:34-0:37: “… and it’s been humbling to see the impact it’s had on the world.”

Are we still not past this misuse of “Humbling”? The word you’re looking for is “Emboldening”, the exact opposite of humbling. “Humbling” would mean that accruing over 14 million subscribers made you feel less significant. A humble person wouldn’t try to claim ownership over other people’s content.

And what’s this “impact around the world” stuff? You have a video of some guy getting teary eyed watching a Malala video. That doesn’t make you Malala.

 

0:37-0:45: “We strive with React to be making episodes that will not just be interesting and entertaining now, but live on forever…”

I love how you show clips of your Nyan Cat and Rickroll videos while saying this, two things that are iconic of outdated and insignificant internet crap.

 

0:45-0:50 “… that people can look back at what various generations were saying about culture and the issues of out time.”

Uh-oh, now we’re at Ero Proxy levels of pretension. Very humble.

 

0:57-1:01: “But what has been missing is how to expand React further to communities across the world…”

What, I thought you already were a global influence on culture, or something like that.

Later on, when we get to their FAQ on this, we’ll see that they are going to allow creators to make content in languages other than English. That is literally the only thing that this seems to be at all relevant too, and it’s near the bottom of an FAQ, available only to people who can read English.

 

1:03: Apparently, all of us have wanted React to go global. They prove this by flashing up a screen full of comments, all blurred out, with one in front saying, “U GUYS SHOULD MAKE REACT GLOBAL !!!”

This really doesn’t matter, but I’d like to go over the bullshit anyway. All those blurred out comments could say anything; we can’t read them. The one you have that isn’t blurred is from a channel, Son Le, who isn’t subscribed to you, and who’s channel hasn’t so much as “liked” a video in over 5 months3. I checked all the Son Le channels on youtube. This guy doesn’t exist.

6 other comments get shown clearly. I didn’t bother looking those channels up.

 

1:15-1:28: So they announce “React World, which is a first-of-its-kind program that allows people and companies to license all our popular shows online, so that anyone […] can create your own versions in a fully legal way, and be part of a new and exciting global community.”

A “global community” of only people who can understand English to watch this video. Why this global angle? It makes no sense and is completely unnecessary! But hey, marketing buzzwords, amiright?

The real issue here is the term “fully legal way”. Yes, if you signed up to this licensing program, it would be fully legal for you to produce React content, similar that of the Fine Brothers; that is technically true. However, it is currently unclear whether or not it would be “fully” (this is another nonsense buzzword) legal to produce that content without the Fine Brothers’ co-operation or consent. There has been no ruling to determine whether the Fine Brothers have copyright ownership over their React format. I believe, based on legal president, they don’t. But we’ll get into why that is, and why this is an issue, later.

 

1:28-1:35: “In entertainment industry terms, when you a version of a show based on someone else’s format, this is called licensing…”

Yes, when you create a version of an existing property. The example they are using is [Country]’s Got Talent. However, simply using same format doesn’t necessarily satisfy this. A show’s format may or may not by copyright protected, and when it is or isn’t is usually a question for courts to decide. Again, we’ll get into this later, but for now; if you create React content that is in clear association with the Fine Brothers then is must be licensed, but if you create independent React-like content it is currently uncertain whether you require a license or not.

The way the Fine Brothers present this, they are leading people to believe that it would be copyright violation to create React-like content. However, because the courts have not ruled on this, the Fine Brothers do not actually own their show format.

 

In the remainder of the video they just rattle off some meaningless crap about corporatization, digital media, and how they try to emulate traditional Hollywood. Really guys? Nobody praises Hollywood for their business practices.

They also tell their fans to help them stop other, non-licensed React content from being made. This gets to the biggest issue, but, again, that’s for later.

 

For now, some supplementary information from their FAQ2.

To license the React format from the Fine Brothers, you have to sign up with them, and have a youtube account. There is no upfront cost, instead the licensing fee is charged as a percentage of annual revenue made on React videos. They clarify two revenue streams, a) revenue through YouTube adsense (preroll and banner ads on YouTube), and b) revenue made through promotional brand deals. Because YouTubers have a great record with paid brand deals! (Shadows of Mordor)

If you agree to associate your channel with React World, you get to keep 80% of adsense revue, and 70% of brand deal revenue. If you produce licensed videos independently, you get 60% of adsense, and 50% of brand deals.

The fact that creators earn a greater share of adsense revenue is telling. It’s very hard to get accurate figures on the breakdown of revue streams for YouTube content producers, but it’s fairly widely known that adsense is very unstable, and hasn’t paid out well in over a year. Because of this, many YouTubers have turned to Patreon and brand deals to support themselves, and these have become their primary revue streams. So the higher adsense percentage isn’t actually significant, and is likely just there to cover up the lower brand deal split.

Sponsorship brand deals are all down through the Fine Brothers. They make the deals then either recommend them to or push them on a creator (it’s unclear what rights creators have to refuse). If a sponsor approaches a creator directly, they are to refer them to the Fine Brothers, and not deal with them independently. A lot of emphasis seems to be on controlling these sponsorship brand deals, supporting my suggestion that the Fine Brothers are hoping to capitalize on them, rather than adsense.

If you decide you want to terminate your contract with the Fine Brothers, you may do so at any time, with 60 days written notice. This seems like a lot, especially considering this isn’t especially complex, but I have no idea what the standards are. If you do terminate the contract, you can keep your licensed videos on your channel, but from that point on 50% of the revenue from them goes to the Fine Brothers in perpetuity.

The Fine Brothers insist that this is not a MCN (Multi-Chanel Network), even though it fits the criteria of a Multi-Chanel Network. They argue, “Many MCN’s are characterized by bad behavior that we do not condone, and operate under a flawed business model.” However, consensus seems to agree that even under this definition, the Fine Brothers are indeed a MCN.

“We plan to be promoting and featuring videos from React World creators across other FBE channels and social.” No commentary here; I just thought it was funny that they forgot “media” at the end of that sentence. A lawyer must have read this page over a hundred times and still missed that.

“At our company, we believe strongly in supporting creators, and their unfettered ability to make and distribute great content.” “We’ve seen the evolution of our industry from the very beginning, and have been fighting for innovation in the digital space since then.” So why are you charging a licensing fee? Copyright, and Intellectual Property protection in general discourages innovation. It exists because law crafters decided it was worth limiting competition in order to reward original creators.

The Fine Brothers already created their particular React format. If they wanted to support new creators and allow innovation, they would let people use it for free. The government does not pursue copyright infringement; it is the responsibility of copyright holders to protect their intellectual property. If they decide not to, then others can use it freely. To support innovation, all the Fine Brothers have to do is literally nothing.

Finally, the FAQ repeatedly addresses questions concerning publishing licensed React videos on outlets other than YouTube (i.e. Daily Motion or Facebook Video). Creators are free to upload to YouTube, however, they must get written consent from the Fine Brothers before publishing anywhere else. This is likely because of YouTube’s strict copyright enforcement.

YouTube videos and copyright claims (through YouTube’s system, not though official legal channels), have been a hot subject on YouTube for years. Videos are often taken down by YouTube because YouTube believes they may be in violation of copyright. This has often included journalistic and other clearly fair use content, which YouTube occasionally reinstates and declares are not in fact in violation of copyright. Basically, the system is a little broken, and YouTube has even admitted it4.

One area of contention is Let’s Play videos, where content creators play a video game with their own commentary over it. It has never been officially ruled, in a court of law, whether Let’s Play videos are protected by fair use or not, largely because YouTube’s over-policing has prevented any potential case from making it to court. If a video game publisher (Nintendo, probably) has an issue with a Let’s Play of their game, they go to YouTube to complain about it, rather than legal authorities, and YouTube always complies. Hell, YouTube’s taken as far as to have pre-emptive software, to remove videos that a computer has flagged as copyright infringement before anyone’s even complained5.

The Fine Brothers state in their video and on their website that they are working closely with YouTube to protect content related to the React license. It seems likely that the reason they have included this exclusive publication clause in the licensing agreement is because it is easier to enforce their supposed copyright on YouTube than it is on any other video hosting site, or within the actual legal system. Essentially, keeping content like this exclusive to YouTube makes it much harder for it to actually be ruled on in court, where it may be found that the Fine Brothers have no copyright on their Reaction format.

 

The Fine Brothers filed for a trademark for “React” back in July 2015, which has not yet been approved6 7. It is unclear and disturbing exactly how far reaching this trademark could be, if approved, as the Trademark application specifies “React” as “Entertainment services, namely, providing an ongoing series of programs and webisodes via the Internet in the field of observing and interviewing various groups of people.” Basically, any series of online entertainment videos that “observe” or “interview” groups of people. That’s very unclear, and as other have already pointed out, the Fine Brothers are not the first to make this type of content. Reaction videos have been on YouTube ever since YouTube launched. The Fine Borthers were the first on the site (that I know of) to make compilations of reactions with the reactors all meeting some demographic, but MTV had similar content prior to YouTube’s existence. The video game Dead Space 2 had an entire marketing campaign based on mothers reacting to the game’s violent content8.

 

Though they have tried to trademark “React”, the Fine Brothers do not seem to have attempted to get a Copyright Registration Certificate (hereafter CRC). A CRC is not necessary in order to have copyright protection on original content (for example, I have copyright protection for all the articles you see on The Anime Harvest, but I don’t have a CRC). Original creators get copyright protection implicitly, simply by creating original, copyrightable content. However, determining whether content is copyrightable, as well as who is credited as the original creator or owner, can be a complex process, especially if it first comes up as part of a copyright infringement case.9

To avoid such complications, creators can apply for a CRC ahead of time, which, if approved, would prove copyright ownership if an infringement lawsuit is launched and expedite the process. I don’t have one because I’m not too worried about having to file any copyright claims, but for a big, profit earning company like the Fine Brothers, getting one only makes sense, and probably should have been done at the same time they filed for the “React” trademark. The fact that they haven’t indicates that they know, or suspect, that they can’t; that is, they don’t actually own the copyright to their format.

 

“It is important to remember that copyright does not protect ideas; it protects expressions of ideas that are fixed in a permanent form…”10. That is to say, the Fine Brothers cannot copyright the idea of React videos. They can copyright the concrete videos they themselves have produced. But can they copyright their format?

It is unclear exactly what is meant by the Fine Brothers’ “format” here. They talk about the format of their specific React videos, but not reaction videos generally. The format of a React video is some group (teens, kids, adults, or elderly) is shown some attention-grabbing video, and their reactions to it are filmed, edited together, and uploaded. There licensing FAQ also talks about other groups (they give examples, “….moms, firefighters, dogs, etc.”), so their supposed copyright must be further reaching than what they’ve actually created themselves. You know, if they actually did submit a CRC, they’d have to specify this scope, and all this would be a lot less murky.

The format of reaction videos in general is someone, either the producer or an “actor”, watches the video and reacts to it. It is worth noting that the Fine Brothers admit that they don’t own the copyright over reaction videos in general, and say it cannot be copyrighted6 7. This seems to be a weak case on its face, but let’s dig deeper.

 

Business, Media, and Intellectual Property Law expert, Kent Raygor, and Copyright and Trademark Law expert, Edwin Komen, wrote a paper in 2009 on limitations of copyright for reality TV formats9. While this isn’t directly applicable, because React is an online show, not a traditional television model, I think it serves our purpose as best as can be done, considering that React is essentially reality programming.

They explain that the basic concept of a (TV) show is not copyrightable (this would probably include the idea of having a certain group of people react to a video). The way of expressing that idea, however, may be. This would constitute the show “format”. Whether or not a format is copyrightable depends on a number of things, including the number of possible formats. If there are only a few possible formats to express a particular show idea, then they cannot be copyrighted, as ownership of the formats would effectively be ownership of the idea, allowing for a monopoly over the idea, and impairing a competitive market.

Raygor and Komen write that game show formats are questionable at best, and reality TV in general has proven very difficult to copyright. Few cases actually reach a decisions, and those that do are overwhelmingly ruled in opposition to format creators9.

The legal precedent seems to be strongly against the Fine Brothers copyright ownership of the React format. Of course, we can’t know if the Fine Bros have copyright protection unless it actually goes to court, or the Fine Brothers apply for a CRC. If it turns out they do, then they have all the right to license their content like this. If they don’t, then they are selling snake oil, and deserve every bit of backlash they’re getting.

It’s actually an ingeniously well thought out decision to work with YouTube and prevent creators from publishing content on other sites. It means that the Fine Brothers may never have to defend their ownership in Intellectual Property court, and can continue operating what is most like a scheme with no legal defense. It’s almost funny that they chastise the corporatization of the internet when they’re the ones acting as the cliché evil businessmen.

 

Don’t Lose Your Way

 

Update:

So we’ve got two updates. First, in the description of the Fine Brothers’ announcement video1, it says this: “You are prohibited from distributing this show or any React branded content in any way without express consent in any territory worldwide” That seems to expressly claim copyright ownership, which is still an open question. So as far as we know, that’s outright false.

Second, the segment of their website where you can sign up for this license seems to be down. I’m finding out about this just before uploading this article; I was finalizing things and checking links, and that one (link 2) doesn’t seem to be working. A link to the site provided in the description of their video1 is also not working anymore. They have made no statement on Twitter of YouTube about this as of yet.

Update 2:

The site is back, the link is working again. Nothing significant seems to have changed.

 

1) Fine Brothers Entertainment; https://www.youtube.com/watch?v=r2UqT6SZ7CU

2) http://www.finebrosent.com/join/

3) One of many Son Le on YouTube; https://www.youtube.com/user/kakalot95/videos?shelf_id=0&view=15&sort=dd

4) Jim Sterling, The Jimquisition; https://www.youtube.com/watch?v=w-UgOXP82UI

5) YouTube Support; https://support.google.com/youtube/answer/2797370?hl=en

6) Variety, Todd Spangler; http://variety.com/2016/digital/news/fine-bros-react-world-youtube-1201688987/

7) Inquisitr, Benjamin Simon; http://www.inquisitr.com/2750955/the-fine-brothers-are-licensing-their-react-series/#gcvOvQMqRjoUXIVh.99

8) Electronic Arts, Dead Space 2 marketing; https://www.youtube.com/watch?v=gMaWuvHbhB8

9) Raygor K, Komen E. Limitations of Copyright Protection for Format Ideas in Reality Television Programming. Media Law Resource Center Bulletin, 2009;4 97-121

10) http://copyrightuser.org/topics/faqs/#1

 

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