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Recently, the Fine Brothers (Fine Bros., Entertainment), well-known YouTubers, announced that they are going to license “react” videos. These “react” videos capture the reactions of people on certain issues, aspects of the society, products, actually anything under the sun. You can watch their announcement here. (Update: The Fine Bros. removed the original video but you can still watch it here.) You can also check their channel through the link and see how they do their YouTube shows. I am a big fan of the Fine Brothers’ channel, honestly.
But with their recent move, I can’t help but think of them as a couple of greedy douche-bags.
Their announcement to license react videos would mean that any other YouTuber out there who “copied” their format, will have to pay royalty to the Fine Brothers. No one can have any “react” videos and earn from them without obtaining a licence from the Fine Brothers. Once you do a react video without a license from the Fine Brothers, that video will not generate any income for you (at least on YouTube). The premium payment for the ads that will be running on your video will be credited to the Fine Brothers. And believe me, disputing the claim can be pretty hard. One of my duties as a web manager is to dispute copyright claims for my clients against a lot of bogus claimants. And even though these copyright claims are manifestly bogus, disputing them with Google may take a long time – it’d be tougher if it’s against the Fine Brothers because now they have a seemingly valid license claim. And at the end of the dispute lost revenues are not even refunded.
Worse, a YouTuber who “copies” the Fine Brothers’ format might even be banned.
Anyway, to my mind, the action by the Fine Brothers have no legal basis. Sure, they are in a different jurisdiction but in a scenario where a Philippine-based YouTuber would get banned due to infringing the Fine Brothers’ format, that Philippine-based YouTuber can make out a case for damages against the Fine Brothers and YouTube (Google). In the first place, there are contracts involved here. Once you are granted the right to run ads on your videos, you should be free to run them until you lose such rights. One way to lose that right is when you infringe the rights of others. But there can be no infringement if you copied the format POPULARIZED by the Fine Brothers. I used the word popularized because certainly, the Fine Brothers did not invent react videos. They just found a way to make them appeal to millions of viewers.
So you cannot be said to have violated your contract if you copied their format. Hence, Google would be violating your right to run ads and earn from them if they unilaterally run the Fine Brothers’ ads on your YouTube videos.
Copyright and Trademark principles have an international character. They are universal. They are practically the same everywhere. Though there might be exceptions, they do not vary much from the main principles. And universally speaking, you cannot copyright a TV program format or, by applying analogy, a YouTube show format.
In the Philippines, we adhere to that principle as can be shown in the case of Joaquin, Jr. vs Drilon. In that case, a TV program’s producer was sued by a rival TV producer because the former was alleged to have copied the format of the latter’s TV show (a dating game show). The Philippine Supreme Court ruled that:
Ideas, concepts, formats, or schemes in their abstract form clearly do not fall within the class of works or materials susceptible of copyright registration.
What can be copyrighted are the title of the show and the specific episode of the show but not the format.
So, if in case you are a Philippine-based YouTuber, and your channel gets banned because of alleged infringement of the Fine Brothers’ license, then I believe you have a case against them for damages.
UPDATE 1: It appears that at least 20 YouTubers were banned or suspended due to “infringing” the Fine Brothers’ format.
UPDATE 2: It would also appear that the Fine Brothers abandoned this idea. Good thinking, if you ask me.
|AUTHOR: Howard Chan is the owner of UberDigests. When he has free time (cough, cough), he takes that time to learn more about SEO, web design, and other stuff about coding. He finished Political Science but is no way a political scientist nor is he a politician. He just passed the 2014 Bar Exams and is currently practicing in the City of Baguio. Feel free to check his Filipinolosophy blog.|