Three Strikes, You’re Out: YouTube Reactors and Copyright
Aug 23, 2023 | Law Student Blog,
By Taylor Scribner, Washington University School of Law, Juris Doctorate Candidate, 2025
If you’ve ever spent more than a few minutes on YouTube, you’ve likely come across videos uploaded to the platform by Reactors. Reactors are platform (i.e. YouTube, Twitch, Facebook, etc.) users who film and share videos of themselves reacting to and commenting on media including music videos, video games, and sporting events. For some Reactors, YouTube has become a home base of sorts for their fledgling small businesses, in which they upload new videos and interact with fans to promote and grow their channels. Some Reactors boast subscriber counts in the thousands or hundreds of thousands, and they receive regular income from YouTube that allows them to pursue reacting on a full-time basis. This is especially so when Reactors are members of the YouTube Partner Program, in which they can earn money on videos through advertising revenue, and can earn extra revenue through YouTube Shopping and channel membership perks.
However, despite the opportunity for profit and growth that YouTube can provide, there are also instances in which Reactors are unable to monetize their videos or are forced to take them down. In particular, videos (especially those involving copyrighted songs or music videos) may be taken down or demonetized due to YouTube’s copyright policies or underlying copyright law. For those Reactors who treat reacting like a full-time job and invest hours filming and editing each video they upload, current laws and platform-specific policies may make it difficult to anticipate compensation and pursue their chosen career with confidence.
Copyright Law and YouTube Strikes, an Overview
The Copyright Act of 1976 and its amendments lay the foundation for current copyright law in the U.S. Under the Act, “original works of authorship fixed in any tangible medium of expression,” including musical works or sound recordings, receive copyright protection. A copyright owner has the “the exclusive rights to do and to authorize” actions including the reproduction, distribution, or performance of the copyrighted work, including performance “by means of a digital audio transmission.” In the case of musical recordings or music videos, owners and copyright holders, including individual artists or record labels, own the exclusive right to permit the performance or reproduction of their copyrighted material. Additionally, copyright holders may act to protect their material against unauthorized use.
In 1998, Congress passed The Digital Millennium Copyright Act (DMCA) to supplement existing copyright law and account for the ever-increasing importance of the internet and digital copyright rights. A main update to copyright law introduced by the DMCA was establishing protections for online service providers when users engage in copyright infringement, including the creation of a notice-and-takedown system. Codified in Section 512 of Title 17 of the U.S. Code, the notice-and-takedown system allows copyright owners to inform online service providers about infringing material and have it taken down.
On YouTube, a copyright holder may submit a copyright removal or takedown request via their YouTube Studio page, where they may fill out a web form to have a piece of media taken down. YouTube also accepts copyright removal requests by email, fax, and physical mail. If a video receives a valid takedown request, the video is removed from the platform and a copyright strike is counted against the offender’s channel. According to YouTube, the first copyright strike “acts as a warning,” and YouTubers must attend a so-called Copyright School to learn more about YouTube’s copyright policies. Among other things, copyright strikes can affect a YouTuber’s ability to monetize their videos and can affect their ability to live stream on the platform.
Once a channel receives three copyright strikes, its future may be in trouble. After three strikes: 1) the account, along with any associated channels, is subject to termination, 2) all videos uploaded to the account will be removed, and 3) users cannot create new channels.
For some Reactors, who have bills to pay or children to feed using their anticipated YouTube income, the prospect of losing hours of hard work and the deletion of potentially thousands of uploaded videos may be a hard pill to swallow. As such, Reactors with one or two copyright strikes may resort to self-censorship to avoid a third copyright strike against them. Copyright strikes truly can be fearsome and debilitating for Reactors, especially when they are unaware of potential exceptions to copyright law.
Fair Use, a Copyright Exception
Copyright exceptions are laws that allow individuals, under certain circumstances, to use copyright-protected material without having to first seek permission. Copyright exceptions exist to permit and promote certain forms of artistic expression and avoid the “rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend (U.S. Supreme Court, 1990).
An example of a copyright exception is found in Section 107 of the Copyright Act of 1976, which allows for the “fair use of a copyrighted work” without first seeking permission from the copyright owner. Examples of fair use under Section 107 include: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and/or research. Reactors, in providing their own commentary on the media they are reacting to, may fall under the criticism or comment categories of fair use. However, not all reaction videos may qualify for fair use protections.
In general, to qualify as fair use, courts such as the Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) look to and weigh the four factors listed under Section 107: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work. According to the Supreme Court, these four factors should not be “treated in isolation, one from another,” but should all be weighed and explored when determining whether an artistic expression qualifies for fair use.
Reactors, especially those within the YouTube Partner Program, often seek to monetize their videos through advertising revenue. Accordingly, one might suspect that the use of copyrighted material for profit may automatically not qualify as fair use. However, the fact that a reaction video is of a commercial character as opposed to nonprofit is “[n]ot conclusive,” according to the Supreme Court, but rather a fact to be “weighed along with other factors in fair use decisions.” Sony Corp. of Am. v. Universal City Studios, Inc. (1984).
The second factor, the nature of the copyrighted work, is often assessed by courts by 1) the extent to which the underlying work is creative or factual, and 2) whether the work is published or unpublished. Natalie Marfo, Playing Fair: YouTube, Nintendo, and the Lost Balance of Online Fair Use (2019). Copyright protection, generally, does not extend to mere facts. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc. (U.S. Supreme Court, 1991). Creative works, like songs, typically meet the “minimal degree of creativity” to receive copyright protection. However, YouTube Reactors who provide their own commentary or criticism to copyrighted work may themselves pass the “extremely low” bar to pass the “requisite level of creativity” to meet fair use, their work being creative or original enough to not be seen as merely copying the original work. Additionally, in general, published works receive less copyright protection than works that are unpublished. Harper & Row Publishers, Inc. v. Nation Enters (U.S. Supreme Court, 1985). Reactors typically react to media that has been published and is widely available, meaning that the underlying media may generally receive less copyright protection.
The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, often proceeds under the assumption that “the greater the degree of copying involved and the closer those copies are to the essence of the copyrighted work, the less likely the copying is a fair use.” Sony Comput. Ent. Am., Inc. v. Bleem LLC (9th Cir. 2000). For example, a screenshot of a video game (representing approximately 1/30 of a second’s worth of the game) may be seen as “an insignificant portion of the complex copyrighted work as a whole.” However, using longer segments of a copyrighted work may be permissible if the use is sufficiently transformative. Campbell. Transformative uses such as parody may require longer uses of a copyrighted work to “conjur[e] up the song for parody” and ensure that the “parodic character” would come through. Reactors in breaking down pieces of media and providing their own criticism or commentary may produce work that is sufficiently transformative that permits the fair use of selected songs in their entirety. Merely playing the song with no additional commentary, however, may prove to be insufficiently transformative and would likely constitute a substantial and disproportionate use of a copyrighted work.
The final factor, the effect of the use upon the potential market for or value of the copyrighted work, concerns the extent of market harm caused by the alleged infringer, as well as “whether unrestricted and widespread conduct of the sort engaged in by the defendant… would result in a substantially adverse impact on the potential market” for the original work. This factor tends to balance in favor of copyright holders, as since fair use is an affirmative defense, fair users of copyrighted materials need to prove (and have evidence) regarding the non-impact of their use on relevant markets. For reaction videos, record labels and copyright holders may claim that the use of a song or series of songs may negatively impact the overall market for their music as viewers may simply view the reaction video rather than watching the video on a channel owned by the copyright holder. Reactors, on the other hand, may argue that there is no market displacement, but rather their commentary leads viewers to go out and buy the music of artists they had never even heard of before. According to some Reactors, their work helps “keep the music alive” and benefits the record labels through their exposure of potentially forgotten music. This factor, however, may be the most difficult for Reactors to overcome as many react to complete or unbroken pieces of media, and may be a driving factor for many takedown requests on YouTube.
Appealing a YouTube Takedown or Copyright Strike
If a Reactor has received a copyright strike, and strongly believes that their video constitutes a fair use of copyrighted material, there are several actions that they may take to dispute or appeal the strike. First off, users can request a retraction from the copyright holder, who may then decide whether they will retract their copyright removal request. If the copyright holder retracts their claim, then the copyright strike may be cleared from the Reactor’s channel, and the video in question may be restored to the channel (unless the Reactor had deleted the video in the meantime). Copyright holders may retract a removal request by YouTube Studio or by email, and must meet all listed requirements for doing so for the request to be processed.
However, the Reactor may not be so lucky and the copyright holder may refuse to submit a retraction request. In this case, Reactors may submit a counter notification indicating their belief that a video was removed due to mistake or misidentification. YouTube considers copyright exceptions, such as fair use, to constitute a mistake or misidentification by the copyright holder. Reactors can prepare and submit counter notifications in YouTube Studio, as well as by email, fax, or postal mail. Once submitted, YouTube will review the counter notification and take appropriate action on the video. Reactors must ensure that their counter notification is submitted in good faith to ensure that their request is properly received. If Reactors submit false information, for example, then such “[m]isuse” of the counter notification system “may result in the termination of your account or other legal consequences.”
Alternatively, Reactors may choose to take no action and wait 90 days for the copyright strike to expire. However, in the meantime, Reactors must take care to ensure that they do not upload new videos that violate YouTube’s copyright policies, as if they receive three strikes during this time then their channel may be terminated. Note, however, that Reactors who are part of the YouTube Partner Program receive a seven-day courtesy period in which they may act before their channel is disabled after receiving a third strike. Should they fail to act however, or if their counter notifications are denied, then YouTube Partner Program members still face the prospect of their channel being deleted.
Conclusion
For many Reactors, YouTube can be a platform that rewards work ethic and provides opportunities for growth. The work that Reactors put into their channel may represent a true investment in a business which they hope will be rewarded and protected by the platform. This is especially desirable for Reactors given that YouTube as a platform provides for certain “freedoms,” including the ability to work from anywhere and upload new content. However, record labels or copyright holders may choose to exercise ownership of their media on the Platform, leading to frustration on the part of Reactors who work hard to upload new content and grow their channel.
For some Reactors, it may take over a year to receive substantial income from the platform, but once success is found the income earned may be greater than more traditional forms of employment. For many Reactors, there is space for both Reactors and record labels to benefit from their videos, as their work often points subscribers to new songs and artists that they might not have been exposed to otherwise. However, the labels or other copyright holders tend to see things differently and may feel threatened by the work of Reactors.
For now, Reactors who receive one or two copyright strikes may choose to cautiously upload new videos to maintain their growth and momentum and serve their fan base. However, they should remain mindful of the looming and ever-present threat of a third copyright strike against their channel. Should that day come, these Reactors may need to abandon ship and find a new platform to host their material, which may result in starting from scratch or inevitably losing a percentage of their fan base who do not follow them to the new platform. Until that day, however, they may choose to remain cautiously optimistic and determined to create new content on YouTube, while hoping they will be fairly compensated for their work on the platform.
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