Welcome back to another Free to Play. I normally write these columns using an example from gaming to illustrate a concept in economics, but sometimes you have to go outside the box. This time I’m saying something that I hope incites you and anyone else who reads it, because YouTube may be allowing such a grave error in which the worst case scenario could destroy YouTube as we know it. First, a quick disclaimer: I am not a lawyer, nor do I play one on TV. I am simply a fairly informed citizen and this is from my own overview of the facts and research about fair use, trademarks and all of that. I did talk to an actual lawyer, at least.
Alright, enough apocalypticism, let’s look at the facts. The Fine Bros, Benny and Rafi Fine, are incredibly popular YouTube stars who are most famous for their reaction videos – things like “Kids React to A Gameboy” and so forth. They recently announced a scheme called “React World” to their millions of subscribers that would allow video creators to use the “react” video style along with Fine Bros graphics in a method similar to the franchise system as seen with McDonald’s. They also announced their intention – I don’t have anything solid on if it went through – to trademark both the word “react” in relation to videos and the react video style with the US Patent & Trademark Office. These are the only things that everyone in this debate agree upon.
Here’s where we get into choosing sides. While I will certainly agree that the Fine Bros have been the biggest force in popularizing the format, they are almost certainly not the originators of the style. Those of us who’ve been Internet denizens for longer than this decade can remember the old “Two Girls, One Cup” horror of years past and may even remember the glut of videos of people watching it for the first time. The original TGOC video was released in 2007, yet the Fine Bros only released the first of their “React” series in 2010. That’s THREE years. This alone should disqualify the Fine Bros since videos in a perhaps unrefined version of format predate their own work. Essentially, from what I’m seeing the Fine Bros are attempting to trademark a genre they only popularized, not created. However, my crack legal adviser, Mr. Brandon Walker, esquire, says he thinks technically they can trademark this but the trademark is still in the challenge period when others can object to the trademark. Judging by the backlash this will almost certainly be challenged.
Let’s use an analogy away from YouTube by looking at the greatest form of music known to humanity, heavy metal. While a good amount of bands – everyone from the Beatles to Led Zeppelin to Steppenwolf – have been credited with influencing the nascent genre, almost every notable music historian would tell you that Black Sabbath invented heavy metal. Even today their albums, especially the self-titled debut and Paranoid, sound as fresh and devastating as the day they were recorded over 45 years ago. In the intervening decades heavy metal has blossomed into a full style of music with numerous subgenres of its own. Despite this, Black Sabbath have never tried to get money out of newer bands for playing heavy metal since they were the progenitors. Interestingly, the band that you could certainly claim had the biggest hand in popularizing traditional heavy metal is Judas Priest, but again they never attempted to trademark their sound. It’s good they didn’t, as their monumental influence has led to bands as diverse and facemeltingly awesome as Iron Maiden – the best band ever – and Metallica. Every single piece of metal released since 1969 owes a debt to Black Sabbath, yet they have not once tried to claim it. This is the exact opposite of the Fine Bros situation.
Now that I’ve laid the basics of the situation out, I want to go into why I think this sets a terrible precendent and could even, at the very worst, lead to a death of the current YouTube we know and love/tolerate/ignore. YouTube is like any place of free expression in that most of the most creative products are built “upon the shoulders of giants” and are products of their influences. As gamers we are very likely familiar with the Angry Video Game Nerd, who you could make a very strong argument to birthing the entire YouTube gaming scene. However, instead of seeing others following in his stead, James Rolfe encouraged others, even some who riffed on his own AVGN creation. While some got too close to their inspiration – I will never watch the Irate Gamer since what I have seen is such a flagrant copy of AVGN – others used the ground that AVGN broke to expand into new material that is far from the AVGN mold. While everyone enjoys making fun of bad games – I ascribe that to the giant shadow of awesome cast by Mystery Science Theater – a lot of YouTube series are based upon praising games. Things like The Gaming Historian, The Backlog, Stop Skeletons From Fighting and many others are positive commentaries on gaming. Even shows that offer criticism of games such as The Rageaholic are quite different from the AVGN. This all would never have occurred if the use of trademark and copyright claims had held back the newcomers.
Don’t buy that AVGN had much to do with YouTube gaming? Let’s look at something that can’t be argued didn’t. We are all familiar with Let’s Plays, but in case you’re out of touch with today – say a member of Congress – a Let’s Play is a video where gamer/s play a game while commenting on it as they play. A Twitch livestream is essentially a live broadcast of a Let’s Play. Let’s Plays have taken over YouTube, and the biggest gaming account on YouTube is a Let’s Player by the name of PewDiePie. With Let’s Plays we have a definite creator and an original source. The first video to be called a Let’s Play was created by Something Awful forum resident Michael Sawyer aka “slowbeef.” His first LP became a prototype for others done by various Something Awful users until it spread to the emerging YouTube. It’s now a legitimate avenue for YouTube content creators to amass large followings, and a sizable income, and it’s been copied thousands of times. Sawyer himself has been reluctant to state he created the genre, though he still contributes to a few LPs. He could have easily established a trademark on the solid evidence, but he didn’t and we are better for it.
A trademark for a genre is a terrible precedent that seems to only be happening because the copyright law is not adapted well for the Internet as well as a legal system full of people who are completely and utterly uninformed about such matters. Allowing popularizers to use copyright claims to stifle others is a threatening decision that opens the door to such actions just being used to shut up people who disagree. Don’t think I’m right? Check out how the makers of a shit Steam Early Access game were caught deliberately using DMCA copyright claims to stop any bad reviews of their games. Never mind that this would be a review that is expressly protected by Fair Use, but the idea of using the law to stifle speech should anger every single Internet user. The Fine Bros’ trademark claim is a flagrant cash grab that should have been shot down from their first trademark application, but it hasn’t been and that’s a shame. We still have time in the challenge period so it’s very possible that this gets rendered moot very soon. One of the very few good things to come of this debacle is that the Internet has taken up the fight against this and the Fine Bros are paying dearly. They have lost over 200,000 subscribers in the last week and a Twitter campaign is likely costing them more. As more and more people post about the topic even the non-informed – like say Congress and the legal system – are inclined to pay attention which can only help the cause.
YouTube has been incredibly terrible on how it’s handled copyright claims, and this is no exception. They need to make a stronger statement on what they consider to be Fair Use in their domain and I personally hope this will spur them to reconsider their positions. The Internet is based upon free expression, and there’s nothing wrong with showing your influences. What is wrong is said influences claiming they own a part of your success because you gained inspiration from their work. I’m not saying you should be free to directly copy the style of another’s work – if I saw a “react” video that used obvious ripoffs of Fine Bros graphics I’d be the first to call them on it – but there’s nothing wrong with developing an idea from your inspiration. What the Fine Bros are trying to do is make money off the work of others with very little proof they have any reason to do so. They should be decried for such actions, and the response to them has made me believe that they will be.
All things considered, all I wanted to do with this column is expose a greedy example of copyright law being a legitimate threat to actual expression while hopefully giving you something to consider about this whole kerfuffle. There is something that is seriously wrong with the state of intellectual property law when someone who didn’t even create something can trademark it and use that as a weapon against others to steal money. There is a legitimate need to protect intellectual property, but as the old quote goes “the road to Hell is paved with good intentions.” As always, thank you for reading.
Note: The very day after this article was written the Fine Bros announced that they had decided to back off their trademark claim. The article still exists because I feel it is important that people know why what they did was so terrible. I’m leaving it as is. The Fine Bros are no longer planning to pursue this idiocy, which is to their credit, but I thoroughly believe they only quit because of the backlash.