Legal Analysis: Reaction Videos in Light of the Judgment of August 29, 2024 – Copyright, Trademark Law, and Far-Reaching Consequences for Creators
- Introduction: The Legal Grey Area of Reaction Videos
Reaction videos have become a staple of digital media culture. They shape public opinion, provide entertainment, and enable interactive engagement with content. From humorous commentary to in-depth analysis or political statements, the spectrum is vast. However, the apparent ease with which third-party content is integrated into these videos belies a complex legal landscape—especially concerning copyright and trademark law.
The judgment of August 29, 2024, is a landmark decision that clarifies and tightens the requirements for creators of reaction videos, particularly regarding the obligation to credit authors and the application of copyright exceptions. It demonstrates that the assumption that reaction videos automatically fall under a copyright exception is often a misconception. This article explores the core aspects of the judgment, expands on trademark implications, and outlines the comprehensive consequences creators may face if they fail to comply with legal requirements.
- The Judgment of August 29, 2024: Detailed Copyright Analysis
The court’s order of August 29, 2024, concerning a preliminary injunction, provides valuable insights into current case law on reaction videos. The applicant, seeking to prevent the removal of three specific videos from the platform “E.” and to avoid copyright warnings, was denied relief. The court’s reasoning is crucial.
The court found that the applicant’s public accessibility of “third-party moving images” constituted a copyright infringement. These moving images are protected at least under § 95 of the German Copyright Act (UrhG) (protection of moving images as photographic works or similar representations) or as film works (§ 2(1)(6) UrhG). The use occurred without the rights holder’s consent. The applicant could not successfully invoke any statutory copyright exceptions.
- The Decisive Role of Author Attribution (§ 63(2) UrhG) in the Context of the Quotation Right (§ 51 UrhG)
The core of the court’s reasoning is the denial of the quotation right under § 51 UrhG, the most important exception for using third-party works in reaction videos.
- a) The General Rule of Complete Author Attribution
51 UrhG allows the reproduction, distribution, and public communication of a published work for the purpose of quotation, provided the use is justified by the specific purpose. The court acknowledged that the requirements of this provision could, in principle, be met, as the applicant engaged with the content of the moving image excerpts and commented on them as part of their own expression of opinion. However, the decisive hurdle was the failure to comply with the “formal requirements” of § 63(2) UrhG. According to this provision, in cases of public communication, the source—including the author’s name—must always be indicated unless this is impossible.
The applicant had indicated the source of the used videos but did not name the author, which was necessary. The absence of author attribution was not justified. The entire quotation was thus unlawful.
- b) Narrow Interpretation of “Impossibility” of Author Attribution
The court emphasized that author attribution is the rule and its omission the exception. Such an exception only applies if attribution is “impossible,” and the burden of proof lies with the user. The user must specifically demonstrate what efforts were made to identify the author. - c) Extensive Duty to Research
The court stressed the duty to actively research the author. It is insufficient that the author was not listed on the platform. The applicant should have, for example, contacted the channel operator via the provided email address to inquire about authorship. The applicant’s fear of political backlash was deemed understandable but not sufficient to render attribution impossible. - d) The Painer/Standard Exception
The court distinguished this case from the ECJ’s “Painer/Standard” decision, where omission of author attribution was allowed because the secondary source was not permitted to name the author. Here, the applicant used the original source, so research was feasible. - e) Consequence
Violation of the attribution requirement renders the use of the work entirely unlawful. - Pastiche (§ 51a UrhG): Between Legislative Intent and Restrictive Case Law
Another central point is the rejection of the pastiche exception (§ 51a UrhG), introduced with the implementation of the DSM Directive.
- a) Broad Legislative Intent vs. Judicial Interpretation
The German legislator intended a broad concept of pastiche to cover practices like remix, meme, GIF, mash-up, fan art, fan fiction, or sampling as key elements of contemporary digital culture. The court, however, followed the restrictive approach of the German Federal Court of Justice (BGH), which sees pastiche as at least a catch-all for artistic engagement with a pre-existing work, possibly requiring humor, stylistic imitation, or homage. - b) Application to Reaction Videos
The court found no artistic engagement in the applicant’s videos, only political commentary. Even if some humor was present, it was merely a stylistic device for commentary, not a protected artistic contribution. - c) Avoiding Redundancy with the Quotation Right
The court argued that accepting pastiche in such cases would render the quotation right and its limitations obsolete, which was not the intent of the EU legislator. - Other Exceptions: Inapplicability to Pure Commentary
The court also considered other exceptions, such as reporting on current events (§ 50 UrhG) or caricature and parody (§ 51a UrhG), and found them inapplicable. The applicant did not caricature or parody the content but merely commented on it.
Key Takeaway:
Pure commentary or political engagement with third-party video material without full author attribution is unlawful and does not fall under broad copyright exceptions, especially not pastiche.
III. Trademark Law Challenges for Reaction Videos: A Deeper Look
In addition to copyright, reaction videos also pose significant trademark risks. Often, the content being reacted to features trademarks, logos, slogans, or even product placements.
- Trademark Law Functionality and the Risk of Confusion
Trademarks serve to distinguish the goods or services of one company from another (§ 3 German Trademark Act, MarkenG). Trademark infringement occurs if a protected sign is used “in the course of trade” without the owner’s consent (§ 14(2) MarkenG). For professional creators earning revenue, this is typically the case.
Risks include:
- Identical or Similar Use for Similar Goods/Services: If viewers might believe the creator is affiliated with the trademark owner.
- Risk of Confusion: If the impression arises that the reaction video is from or authorized by the trademark owner.
- Exploitation or Detriment to Distinctiveness or Reputation: Especially relevant for well-known marks (§ 14(2)(3) MarkenG).
- Limits of “Nominative Use” and Critical Reporting
Generally, the mere mention or depiction of a trademark for descriptive or critical purposes is permissible, provided it does not imply a business relationship with the trademark owner. However, the boundaries are fluid:
- Advertising Impression: Using a trademark in a way that objectively appears as advertising for the creator’s or third-party products crosses the line.
- Avoiding Defamation or Denigration: Criticism is allowed, but not unfounded negative statements that could constitute actionable disparagement.
- Risk of Confusion or Unfair Exploitation: If the use creates the impression of partnership or unfairly leverages the brand’s reputation, infringement may occur.
- Practical Examples
- Prominent Product Placement: Reacting to an ad and repeatedly showing a product without critical engagement may be impermissible, especially if the creator also advertises products.
- Uncommented Logo Displays: Inserting logos as background or overlays without direct commentary may suggest exploitation of the brand’s reputation.
- Use of Slogans in Titles/Descriptions: Employing well-known slogans without direct critique may constitute unfair exploitation.
Trademark law assessments are highly fact-specific and require careful balancing of freedom of expression and trademark protection.
- Comprehensive Consequences for Creators and Preventive Strategies
Non-compliance with copyright and trademark law can have far-reaching, even existential, consequences for creators, extending well beyond mere video deletion.
- Civil Sanctions: Cost Risks and Damages
The most common first step by rights holders is a cease-and-desist letter. The creator is required to remove the content, sign a cease-and-desist declaration (often with a penalty clause), and pay the rights holder’s legal fees.
If the creator refuses:
- Preliminary Injunctions: As in this case, rights holders can obtain a quick court order.
- Main Proceedings: If necessary, a full trial may follow.
Damages:
Rights holders can claim damages, calculated by:
- License analogy: What a reasonable licensee would have paid.
- Actual damages: If provable.
- Surrender of profits: The creator must disclose and surrender profits from the infringement.
All legal costs can quickly escalate, especially with high-reach videos.
- Criminal Implications
Copyright (§ 106 UrhG) and trademark (§ 143 MarkenG) infringements can also be criminal offenses, especially if intentional and commercial. Fines and even imprisonment are possible, though rare.
- Platform Enforcement: Content ID and Strikes
Platforms like YouTube, Twitch, and TikTok use automated systems (e.g., Content ID) to detect infringements. Rights holders can block, monetize, or issue strikes. Three strikes within a set period (e.g., 90 days on YouTube) can lead to permanent channel deletion.
- Reputational and Sponsorship Risks
Legal disputes or public cease-and-desist letters can severely damage a creator’s reputation, affecting both audience and potential sponsors.
- Recommendations for Creators
- Strictly comply with attribution requirements: Always name the author and source; actively research if not immediately apparent.
- Assess the purpose of trademark use: Only use brands in a descriptive or critical context, not for advertising or reputation exploitation.
- Focus on original creativity and transformation: The more original input, the more likely an exception may apply.
- Use licensed or license-free material: Prefer Creative Commons or explicitly licensed content.
- Seek legal advice when in doubt: Especially for high-value or controversial content.
- Be cautious with political commentary: Pure political commentary on third-party content without artistic engagement is not protected by copyright exceptions.
- Conclusion: The Evolution from “Digital Wild West” to a Regulated Space
The August 29, 2024, judgment sends a clear message to the creator community: The era of lax copyright practices online is ending. Reaction videos remain a vital format, but their creation now requires legal diligence and responsibility.
Active research, strict attribution, and a clear understanding of the limits of copyright and trademark exceptions are essential. Creators who embrace these challenges and take preventive measures can continue to thrive. Those who ignore the risks face severe civil, criminal, and platform-related consequences that could jeopardize their entire online presence.
