Is a video commenting on another video a derivative work or a transformative work under United States Copyright Law?

A popular genre of videos that have emerged in the internet age are the commentary videos or reaction videos. The basic formula for reaction videos are an original video and a person viewing the original video. The level of interaction between the viewer and the view can vary greatly. The person viewing the original video may merely react, by expressing emotions with little substance beyond laughter or disbelief, the person may express their opinion on what is going on in the original video, and the original video may be edited for dramatic or comedic effect. Whatever your opinion is on the genre of reaction videos, love them or hate them, reaction videos raise some interesting copyright issues.

It is a safe assumption to make that the creator of the original video has a copyright on the original video. Because everything in the law is very fact specific there can be instances where the original video might not be subject to an enforceable copyright, such as when the creator publishes the original video to the internet with a licensing scheme which allows others to freely reuse and publish the original video or if the original video itself is derivative of another copyrighted work. For the purposes of this article we will assume that the creator of the original video has a valid copyright on the original video and that copyright is not subject to any other complications.

The question then becomes whether the reaction video’s use of the original video is derivative or transformative. Please refer to our prior article What is the difference between a Transformative and Derivative work in United States Copyright Law if you are not familiar with the differences between a transformative work and a derivative work in United States Copyright Law.

A recent case that has dealt with this question is Hosseinzadeh v. Klein 16-cv-3081 (KBF) which was brought in United States District Court Southern District of New York. In that case the Kleins are accused of copyright infringement by Hosseinzadeh. The Kleins are popular reaction video creators. The Kleins created a reaction video using an original video on which Hosseinzadeh claimed copyright. The Kleins reaction video involved the Kleins viewing the video by Hosseinzadeh, the Kleins making commenting on the original video and editing the video for comedic effect. Hosseinzadeh sued the Kleins claiming copyright infringement. Hosseinzadeh alleged, among other things, that because the Kleins used a substantial portion of the original video in their reaction video, the Kleins video was a derivative work.

The court sided with the Kleins. The Court found that the Kleins use of Hosseinzadeh’s original video was trasformative, was fair use and therefore did not infringe on Hosseinzadeh’s copyright to the original video. The Court performed an exhaustive review of the factors which should be considered to determine if fair use applies to a copyright infringement case. One point worth noting is the Court held “Although no factor is independently determinative, the heart of the fair use inquiry is the first factor—whether the use is transformative by adding something new, with a further purpose or different character. The central purpose of this investigation is to see . . . whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Court found that despite the fact that the Kleins had used a substantial portion of the original video, the Klein’s added commentary was enough to transform the reaction video to a degree which did not infringe on the copyright of the original video.

Figuring out whether a reaction video is a derivative work or a transformative work can be a complicated analysis. If you have questions about the copyright issues related to reaction videos you should consult with an attorney that is well versed in copyright law.