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A Fine mess: how not to assert your copyright in the YouTube age

A Fine mess: how not to assert your copyright in the YouTube age


Misunderstanding the law amplified the Fine Bros brouhaha

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A week ago, one of the more popular YouTube organizations, Fine Bros Entertainment, run by brothers Benny and Rafi Fine, announced a new scheme to license out its React brand and video format on a profit-sharing basis. Having developed a large audience through various series of reaction videos — where people are filmed as they react to watching or experiencing a new thing for the first time — they were now looking to apply the franchise model to their content. It was an offer for others to use the Fine Bros template for creating reaction videos, including series titles like Kids React and Elders React, and to ultimately be distributed and featured in front of the company’s large YouTube audience. The endeavor backfired spectacularly: partly because no one needed a template in the first place, but mostly because people felt that the Fine Bros were profiteering and aiming to exploit the creativity of others.

React World was a victim of its own hyperbole

It all started with a grandiose video announcement, now retracted, wherein Fine Bros promised to "change the world" and shake up the entire media industry. The company wanted to be seen as the counter to Hollywood, acting as an inclusive, community-driven venture. But simmering under the surface of its words was the implication that not signing up for its scheme, dubbed React World, would land any reaction video creators into legal trouble. The Fines had already filed a series of trademark applications with the US Patent and Trademark Office last summer, which included the super generic "React" along with series titles like "Lyric Breakdown." Previous to that, they’d been granted trademark registrations for "Elders React" and "Teens React" in 2013 and "Kids React" in 2012.

The incensed reaction to the Fine brothers’ proposal was driven by the fear that they would use those trademark claims and their copyright over their existing reaction videos to choke off competition and essentially monopolize the genre. You don’t have to make a perfect copy of something to be found to be in breach of its creator’s rights, as the author of Tanya Grotter and the Magic Double Bass found out. The Fines had already shown themselves aggressive in asserting their preeminence as the inventors and keepers of reaction videos, having encouraged their followers to harass Ellen after she did a segment showing kids reacting to old technology. They’d also used YouTube’s Content ID copyright protection system to have others’ videos pulled down — which included videos of people reacting to their React videos.

While the fears brought up by React World were justified by Fine Bros’ prior protectionism, they were nonetheless inflated by a number of legal misapprehensions. Chief among them was the notion that the company was seeking to trademark reaction videos. It’s no more possible to trademark a video or a class of videos than it is to go fishing for deer. That being said, Fine Bros could have used its trademarks, had they been granted, to dispute others’ rights to using those particular phrases — which could be a major pain point with something as basic as "Parents React." Patents have also been mentioned in the subsequent discussion, even though patenting the method for creating a reaction video is too silly an idea even for the generous USPTO to contemplate. As usual, the internet was whipped into a frenzy of confused anger about IP law, with copyright, trademarks, and patents all misused and conflated wildly.

Trademarking brands related to reaction videos, not reaction videos themselves

The primary thing that Fine Bros sought to capitalize on was its portfolio of show names, brand insignia, and design, which it had rights over though a combination of copyright and trademark claims. Those are the company’s legitimate assets and it was certainly free to offer them as licenseable properties to third parties. But the way the company pitched the React World system as a world-changing, industry-altering good thing was disastrously bad because the initial announcement deliberately dodged the full commercial implications — and also because the Fine brothers had prior history of being unfriendly to the very community of fellow creators that they were trying to court.

In the wake of the backlash to their announcement, the brothers have accepted that they communicated their intent poorly and have now rescinded their "React" trademark claims and canceled the React World initiative. This is regrettable because, at its heart, the React World offer wasn’t a totally unreasonable one and could have been helpful to at least a few people out there. Moreover, some of Fine Bros’ trademark claims might have been justifiable. They’ve even gone so far as to release all Content ID claims on YouTube, aiming to purge the evil from their public image and start afresh.

A necessary overreaction

The Fine brothers’ original popularity was built somewhat parasitically — the stars of their reaction videos are regular people, that’s the whole appeal of the shows — and their offer to have someone else do the creative work and pay them a fee felt like an extension of this seemingly exploitative model. That’s why everyone who watched their launch video instinctively recoiled in horror. And while Fine Bros’ actual legal rights were never extensive enough to grant the company dominion over all reaction videos, it’s easy to see how in practice they could have exercised a functional monopoly over the genre. It’s all too common to see big copyright holders, such as Disney, asserting rights far beyond their true scope, which are then not contested by individuals who lack the same legal budget and endurance.

In purely legal terms, the internet overreacted to the Fine Bros’ React World proposal. It was garden variety protectionism with some overreaching copyright and trademark claims. But in terms of practical impact, the backlash was no overreaction: this could have led to a real suppression of creativity on YouTube and also set a horrible precedent for any related genres of user-generated videos.