YouTube, Trademarks, Copyrights and the Potential Fall of Fine Brothers Entertainment

By Jeremy Burgess

If you are entwined in the world of new media or have just found yourself on YouTube or social networks lately, you may have noticed a number of sarcastic comments or videos in which people are claiming to have copyrighted common concepts such as commenting or pressing a like button and threaten to sue everyone who engages in such activities. No, those people don’t have a copyright and they are not serious, instead what you are witnessing is a very organic and, because this is taking place on the internet, sarcastic reaction to Fine Brother Entertainment.

Fine Brothers is one of the most subscribed channels on YouTube. According to VidStatsX and ChannelMeter, both websites dedicated to tracking YouTube statistics, Fine Brothers once had over 14 million viewers with nearly 4 billion views for its some 943 videos. Fine Brothers primarily produce reaction videos under their popular “React” group of channels where children, teens and elders react to video games, viral videos and news events.

Fine Brothers has recently been shedding subscribers at an astonishing rate; dropping over 350,000 subscribers between January 28 and February 2, 2016 with no sign of slowing down at the time this article was written. You can even view the catastrophic drop in viewership live.

With revenue generated by YouTube being dependent on views and views largely being tied to subscriptions, Fine Brother’s massive loss of subscriptions will almost certainly result in an equally massive drop in revenue and perhaps even irreparable damage to Fine Brothers’ brand.

At the heart of the crisis? An optimistic video entitled “REACT AROUND THE WORLD?!?! (Special Announcement)” which was posted on January 26, 2016. In the video, Fine Brothers’ founders proudly announced that they intended to create a global brand called React World. The video was the most disliked video ever posted by Fine Brothers and has produced millions of views for reaction videos which vilify and criticize Fine Brothers. The video was removed sometime around February 2, 2016 as part of the Fine Brothers’ apparent damage control.

In a nutshell, Fine Brothers’ plan was to provide a licence to use the React formatting and to grant content users access to the resources, referrals, subscribers and recommendations associated with the React brand in exchange for providing licensing fees presumably in the form of a portion of revenue generated. In essence, Fine Brothers were attempting to claim ownership over a certain format of videos and control who could produce that style of video.

The concept is not foreign in the non-digital domain. For example, rather than trying to recreate the branding and buying power of the Bay, franchising allows a person to open a Bay store and then utilize the Bay brand and have access to its suppliers, benefit from its advertising and name recognition and become part of its purchasing network. However, the concept of franchising is new to YouTube.

It must be remembered that YouTube was grown on the basis of organic and authentic content. While Fine Brothers optimistically hoped that licensing its brand may have resulted in the creation of content for a global audience –perhaps resulting in Älteste reagieren in German, les adolescents réagissent in French or děti reagují in Czech, for example- instead they ignited a firestorm of controversy on YouTube for what is perceived as an attempt to censor and shut down other content creators who are creating reaction-based videos.

The negativity is not entirely undeserved. At about the same time their “REACT AROUND THE WORLD?!?! (Special Announcement)” video came out, Fine Brothers were encouraging their fanbase through social media to attack the Ellen Degeneres Show’s channel with negative comments and link spamming in apparent retaliation for Ellen having posted a video of children reacting to old technology. Perhaps not so coincidentally, Fine Brothers was on the verge of overtaking the Ellen Show for subscribers prior to posting their video. The Ellen video itself bore little resemblance to Fine Brothers’ React programs.

The general concern of YouTubers, the Reddit community, internet commenters and all manner of web users is that Fine Brothers was attempting to position itself to shut down or control anyone who creates a reaction video; which are among YouTube’s most popular and frequently uploaded videos. The notion of reacting to something, which is at the heart of Fine Brothers’ brand, is obviously not a unique concept.

Allegations and accusations of heavy handed “take down” efforts by Fine Brothers were made, reaction videos were uploaded and internet commenters had a field day (for example, YouTuber SDR: “I’m trademarking trademarking, so I can sue fine bros.”).

YouTube tends to allow all videos to be uploaded and, when it receives claims of copyright or trademark infringement, generally takes down the video alleged to be infringing. For better or for worse, larger brands and companies with more resources, tend to get more benefit of the doubt from YouTube when they claim infringement.

It can be challenging to get YouTube to allow an allegedly infringing video to be reinstated and, in the meantime, the content creator has lost opportunities for views and subscriptions. While intellectual property violation claims are often well-founded, it is a very sobering thought for content creators that Fine Brothers, who generates significant revenue for YouTube, appears to have attempted to position itself to essentially shut down or cripple anyone who makes a video reacting to something.

For their part, Fine Brothers has been back peddling as fast as they can. There first and most disastrous attempt at damage control including posting an “explanatory” video entitled “Update” in which they explain why they were misunderstood and attempting to mitigate the harm their concept has caused. When the original draft of this article was produced, the explanatory video was the second most disliked video Fine Brothers ever uploaded. The video has since been removed by Fine Brothers.

Having found no luck in attempting to explain their actions, Fine Brothers has issued a very brief written apology for their actions in which they state that they are rescinding all “React” trademarks and applications, are discontinuing the React World program and releasing all past content ID claims. It remains to be seen if the apology letter is viewed by the internet community as eating enough crow to allow the Fine Brothers brand to recover.

Notionally, the idea Fine Brothers had wasn’t bad. Through use of unique but consistently applied sound effects, music and graphics coupled with consistent formatting and related content Fine Brothers has arguably created a recognizable brand and unique brand and garnered goodwill associated with that brand. At least in Canada, a trademark may arise whenever wares are distinctive based on words, logos, sounds or any other feature associated with that brand. Copyrights automatically are created whenever original works are created.

Having created a brand that is distinguishable in the eyes of the public with its associated marketing power and attached goodwill undoubtedly gave rise to the Fine Brothers having strong claims to protect their brand. For example, in Canada, a party attempting to deceive the public into thinking that their goods or services are being provided by another entity is in breach of both common law and statutory protections against passing off. A party who attempts to pass off their goods or wears as another party’s faces claims for damages and injunctions.

In short, the law prevents someone from stealing another party’s goodwill. We’re all familiar with the power of goodwill as we all know people who are fiercely loyal to, for example, Tim Horton’s and the associations it has with a certain type of coffee or dining experience.

Whatever Fine Brothers’ true intents, they almost certainly would have quickly encountered the limitations of intellectual property law. Their “React” brand is not unique in concept, only in delivery. No doubt their efforts to silence other reaction videos would have failed generally, but they may have found and may still find success in shutting down reaction videos that appropriate the more unique features of Fine Brothers’ videos.

Long story short, whether or not Fine Brothers did or will do anything “wrong” has yet to be seen, but the internet is fickle. Intellectual property disputes naturally have the potential for strong public reactions however onside the law you may be and it takes a deft hand to appropriately deal with infringements and threatened infringements to your brand. Fine Brothers learned the danger of overprotecting their brand in a marketing environment that is loath to allow traditional protections afforded to more conventional business.

This article is written for information only and does not constitute legal advice nor should be interpreted as such. If you have any questions or concerns about this article or have become involved in or are concerns with an intellectual property dispute, please do not hesitate to contact the author of this article, Jeremy Burgess, at burgess@pushormitchell.com or toll free at 1-800-558-1155 or call any of Pushor Mitchell’s intellectual property lawyers.