In Part I of this blog post, I explained what a reaction video is, how it could constitute copyright infringement under the Copyright Act, and how the possible legal exception for “criticism” or “review” might apply to a reaction video. In Part II of this blog post, I further analyze this exception through both a Canadian and U.S. legal lens (no pun intended).
Canadian and U.S. Perspectives on Criticism and Fair Use/Fair Dealing
Support for the position that a reaction video would be “criticism” or “review” under the Copyright Act is that a reaction video has already been the subject of a high-profile U.S. court case recognizing it as criticism. In fact, the court actually went as far as to recognize a reaction video as falling under the U.S.’ similar (but not parallel) “fair use” exception for copyright infringement. In Hosseinzadeh v. Klein, a 2017 decision of the United States District Court for the Southern District of New York, the plaintiff, YouTuber Matt Hosseinzadeh (MattHossZone) sued Ethan and Hila Klein (h3h3productrions) for creating a reaction video about one of his amateur comedic short films. In the video, the Kleins recorded themselves heavily criticizing and mocking the video’s storyline and dialogue. Hosseinzadeh responded by claiming that the Kleins’ use of his video in their video—the Kleins had excerpted three minutes and 15 seconds of Hosseinzadeh’s video, which ran at five minutes and 24 seconds—amounted to copyright infringement.
In its decision, the court applied the four-step fair use analysis to the Klein’s video. In summary:
- under the first factor, which examines the purpose and character of the work, the court found in favour of the defendants, recognizing their video as “quintessential criticism and comment” (as opposed to a direct reproduction);
- under the second factor, which examines the nature of the copyrighted work, the court found in favour of the plaintiff, recognizing his video as “entirely scripted and fictional” and thus protected from copyright infringement under U.S. law (i.e. it was a copyrightable work worthy of protection);
- under the third factor, which assesses the amount and sustainability of the portion of the original work used, the court found that this had a neutral impact, determining that “to comment on and critique a work, clips of the original may be used” but simultaneously that “a great deal” of the original video was copied; and
- under the fourth factor, which assesses the effect of the use of the reproduced work upon the potential market, the court found in favour of the defendants, as the reproduction did not “serve as a market substitute” since it responded to and transformed the original video “from a skit into fodder for caustic, moment-by-moment commentary and mockery”.
Both the legal community and the content creation community viewed Hosseinzadeh as a huge victory for fair use in the U.S. At the same time, its existence would not necessarily prevent a content creator of a video that has been reproduced in a reaction video from successfully filing a copyright claim against such reaction video through a YouTube or Twitch internal process, so it does not mean that reaction videos are completely free from being deplatformed.
To compare the U.S. approach with a potential Canadian approach, although U.S. case law is not binding authority upon Canadian courts, should this issue come up in a Canadian context Hosseinzadeh may be something for a Canadian court to consider. At the same time, the application of fair use under U.S. law has considerations that differ from the application of fair dealing under Canadian law. For example, in a fair use analysis U.S. courts look to whether a reproduction was “transformative” in nature, whereas Canadian courts have yet to recognize such a quality in the fair dealing analysis. Also, the application of fair use is not limited to an exhaustive list of purposes, unlike fair dealing, as described above.
In addition, the Supreme Court of Canada has established its own analysis for fair dealing under the Copyright Act, which consists of six factors:
- the purpose of the dealing;
- the character of the dealing;
- the amount of the dealing;
- available alternatives to the dealing;
- the nature of the work; and
- the effect of the dealing on the work.
That being said, there is significant jurisprudence on fair dealing that has modified a court’s analysis of these factors over time. For example, the Federal Court has affirmed that when 100% of a work is reproduced, the dealing cannot be fair. So, it remains to be seen exactly how a Canadian court would rule with respect to a given reaction video, as the analysis will also depend on the nature of the video itself.
Although the prominence of reaction videos is a relatively recent phenomenon, we can perhaps look to an English case from the early 19th century to help understand their value:
The critic does a great service to the public, who writes down any vapid or useless publication such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash.
— Lord Ellenborough in Carr v. Hood (1808), 1 Camp. 355 (Eng. K.B.) at 358
Although Lord Ellenborough is perhaps a little harsh, it is clear that criticism in itself adds value to society. A few centuries later, it is now possible for anyone to be a prominent critic right from the comfort of their own home, and perhaps the reproduction that criticism necessitates is important for facilitating a dialogue and discussion about what makes a work entertaining, comedic, poignant or otherwise. Perhaps such reproduction is even unpreventable when considering the way technology and societal attitudes towards media consumption and copyright have changed.
Of course, it is still important to ensure that protections are in place for copyright holders, especially when considering that smaller content creators who make videos often don’t have the resources to fight costly legal battles just to protect their own rights. This is why courts have an aversion to a complete reproduction of a work, but are more receptive when the reproduction only consists of parts of the work. Copyright issues like these often involve numerous competing rights and interests, so it will be interesting to see how this issue develops over time.
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 276 F. Supp. 3d 34 (S.D.N.Y. 2017)
 Source: U.S. Copyright Fair Use Index: https://www.copyright.gov/fair-use/summaries/hosseinzadeh-klein-sdny2017.pdf
 Century 21 Canada Ltd. Partnership v. Rogers Communications Inc., 2011 BCSC 1196, 338 D.L.R. (4th) 32 at paras 226-234.
 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13,  1 S.C.R. 339.
 Canadian Standards Assn. v. P.S. Knight Co. (2016), 2018 FCA 222, 300 ACWS (3d) 608 at para 52.
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