Reaction Videos Are Fair Use–Thiccc Boy v. Swindelles

Thiccc Boy produces The Fighter & the Kid podcast, led by Brendan Schaub (the titular “fighter”). Swindelles (a/k/a Yew Neek Ness…uniqueness, get it?) broadcast at SaiyanZStream on YouTube (the stream appears to be gone). Swindelle made and posted reaction videos to YouTube that included portions of Thiccc Boy’s podcasts. Thiccc Boy sent 512(c)(3) takedown notices to YouTube; Swindelles counternoticed. Thiccc Boy then sued for copyright infringement. The court finds fair use.

Purpose and Character of Use. “the allegedly infringing videos undisputedly commented on the quality of the discussion in the copyrighted works.” Focusing on the commentary nature of the videos helps the court bypass any lurking commerciality issues.

Nature of the Work. “The copyrighted videos, which essentially consist of three men in a recording studio with a few lounge chairs and microphones recording a podcast on current events in popular culture and their personal lives, and which are basically the contemporary analog to television talk show clips, and which include reactions to the copyrighted material of others, are more factual than creative.”

Amount Taken. “Mr. Swindelles admittedly duplicated the copyrighted videos’ full frames. However, to copy any less than the entire frame of each video would have disturbed the material and made the videos useless to the commentary.” But Swindelles “borrowed several minutes of time from the copyrighted works,” and “All of the accused videos include segments of the copyrighted videos which Mr. Swindelles did not criticize or comment on.” That swung this factor in favor of Thiccc Boy.

Market Effect. Swindelles’ videos are criticism/commentary on Thiccc Boy’s videos, so they are not likely to function as substitutes.

The court summarizes: “Three of the four statutory factors weigh in Mr. Swindelles’ favor; and Mr. Swindelles’ use of the copyrighted material serves a public benefit.”

Sanctions. Shortly after bringing this lawsuit, Schaub publicly declared (cleaned up): “I am finally going after anyone who harasses me online, including comics. I have spent half a million dollars on monster lawyers and I have friends in dark places who are going to get the job done.” The court calls those comments “troublesome” (among other things, they suggest that the lawsuit wasn’t really about copyright infringement), but not enough to trigger Rule 11 sanctions that the lawsuit was instituted for an improper purpose. I wonder if the court will feel differently if Swindelles asks for a 505 fee-shift.

Implications. The court doesn’t specify how much of Thiccc Boy’s material Swindelles reused or how Swindelles commercialized his videos. Both aspects can have significant implications for fair use. Nevertheless, this case supplements Hosseinzadeh v. Klein and Equals Three v. Jukin Media, both cited by the court, as data points that courts are generally tolerant of reaction videos.

Case Citation: Thiccc Boy Productions Inc. v. Swindelles, 2024 WL 733425 (D.R.I. Feb. 22, 2024)