A Fine Lesson: What IP Lawyers Can Learn from the Fine Brothers Fall-out
The internet is still very much the Wild West and there is no better example of this idea than that of the Fine Brothers saga. In case you missed it, YouTube sensations, the Fine Brothers, became internet pariahs over the span of 24 hours beginning last week when they announced the creation of a licensing program — the first of its kind on YouTube — that would trademark the “react” video format (including the word “react) and allow other creators to use the brothers’ formats in exchange for part of their profits. The react videos feature the Fine Brothers, off-camera, showing kids, elders, teens, adults, or YouTubers viral videos or pop culture trends and having the viewers react to the content. They’ve become wildly popular and appropriated for use by others, according to the Fines who even singled-out Ellen DeGeneres for appropriating the concept for her show. Here’s an example of a “react video.”
Essentially, the Fine Brothers did what many brick and mortar corporations do outside of the digital landscape: they saw an opportunity to expand through franchising and took it. They compared their licensing idea to a chain restaurant, in which they started the original company but would help outfit franchisees with logos and support for a share of their profits, a 30% share. However, the Fine Brothers rooted their franchise idea in intellectual property law (Trademark)…on the internet which earned fury, mockery and accusations from other YouTube creators. They lost tens of thousands of followers by the hour. According to the BBC, the brothers became “the convenient face of many people’s frustrations.” These creators, according to The Washington Post, claimed the Fines were trying to “‘own’ an entire genre of online videomaking — in direct opposition to the democratic, DIY spirit that many YouTubers have embraced.”
One week later, the Fine Brothers have done a complete one-eighty. According to the Washington Post, the brothers have discontinued their licensing program, they also decided not to pursue infringement claims against other creators who sample their work or borrow the tropes of the “react” genre. They even deleted the videos in which they explained and promoted the licensing program on their YouTube page. What remains as the dust begins to settle are many questions.
Why did the internet react so strongly to this incident when this type of expansion happens so often in business? What is it about IP law that is frustrating to people? The obvious answer, quite frankly, is most people don’t understand IP law. This was made apparent as I scrolled through social media reactions, often stating that the Fine Brothers were trying to copyright the word react. What people don’t understand, they tend to instinctively oppose. Why was there such indignation towards a body of law that, in theory, is designed to protect the very product of a creator’s innovation? Outside of the digital landscape, this protection is widely accepted (even passively), but on the World Wide Web, creators are staunchly opposed to certain aspects of the ideology and enforcement of intellectual property law. Aside from the very bad decision to trademark the word “react,” what the Fine Brothers sought to do, many have done before, maybe just not as visibly and maybe not within the YouTube/ DIY community. Does this indignation originate and rest with the internet user within the DIY digital landscape, or has Intellectual Property law, in practice, begun to stifle creativity/ innovation to the point where any exercise of it in a creator-centric environment, is rejected? Gregory Mandel, Associate Dean for Research and Professor of Law at Temple University expounds upon the latter inquiry.
According to Mandel, psychology research provides significant insight into the creative process and has indicated that certain intellectual property law hinders the very creativity the law is designed to inspire. While his study is based primarily on patent and copyright law, trademark falls within the scope of his findings, as well.
How the law is understood by individuals has a significant effect on how the law influences creativity. According to Mandel, to the extent that IP law is perceived as creating competition, constraint or providing rewards for task (not creative) performance, the law may produce extrinsically motivated efforts that are less creative. Mandel, at 11. Mandel identifies a motivation spectrum inherent in most people. Extrinsic motivation is produced or prompted by extrinsic demands and pressures while integrated or internal motivation is produced when an individual engages in behavior that is contingent upon a desired outcome, although not as a result of external factors. Id. In other words, intrinsic motivation inspires or produces activities that an individual identifies with as an expression of his or her own self. Intrinsic activity is self-determined activity. A vast majority of the YouTube/DIY community consists of intrinsically motivated individuals. Yes, the monetary reward for subscribers is an external motivator, but DIY is an alternative to modern consumer culture’s emphasis on relying on others to satisfy needs, and is therefore, an intrinsically motivated movement. According to Mandel, “as motivation moves from the external towards the internal side of the motivation spectrum, individuals’ work product tends to become more creative.” Mandel, at 9–10.
Let’s consider user innovation as an example. User innovation refers to innovation produced by technology users as opposed to individuals whose profession it is to develop technology. Id. This occurs when users modify products they have purchased (or subscribed to) in an effort to provide a more enjoyable user experience. These modifications can produce significant advances. Id. Examples of user innovation, including the YouTube celebrity, range from simply programming an iPod or cellphone, to cyclists who invented the mountain bike due to an interest in off-road biking, or surgeons who modify and improve surgical equipment for their own use. User innovation, according to Mandel, is by definition, “often largely intrinsically motivated, and therefore may be expected to produce particularly creative results. YouTubers utilize both the site and their own technological resources to create content that is personally relevant. These users are intrinsically motivated to create.
Further, intrinsically motivated creation/innovation is often associated with, and enhanced by, collaboration. Creativity usually requires a combination of prior ideas and work, and such combination, according to Mandel, is routinely accelerated by collaboration. Successful collaboration involves individuals building on each other’s ideas in a synergistic manner that enhances individual creative activity. This is evident from the myriad of “react” videos made by YouTube users and others, aside from the Fine Brothers. These videos are not frame by frame copies of original Fine Brothers videos, but are inspired by the concept to which the Fine Brothers claimed ownership. If collaboration promotes creativity, then by claiming ownership to the “react” concept (or video elements, which were never clearly defined by the Fines), they threatened the creative freedom that their supporters and fans felt entitled to, within the DIY community. So what do we do? I honestly don’t know, but I agree with Mandel who maintains that intellectual property law should promote collaboration. While joint creator law could be considered a viable IP solution to or motivator for collaborative work, it is still an external motivator. Also, most people don’t know these laws exist. Additionally, regarding copyright, the requirements of intent to be a joint author and for an individual to provide an independently copyrightable contribution, protect the primary developer of a copyrightable work at the potential expense of a secondary contributor. Id. at 14. Commentators, including the Ninth Circuit have identified this unintentional bias. See Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000). The Fine Brothers like most creators did not consider their community as collaborators, but if they had — if they took a second to think about the community that makes YouTube so successful and how they would “react” to this concept, perhaps they might have thought twice about the most effective way to monetize their idea while not becoming internet pariahs for a week. The Fine Brothers saga exemplifies the fine line between autonomy and control and between individualism and social connection, necessary for successful collaborative creativity. Mandel proposes a solution:
Intellectual property law…may work well in the large-scale collaboration motivational context, despite its potential problems as an extrinsic motivator. The prospect of a patent or copyright [or trademark] on the final group output may help to focus individual contributors on a coherent group target, and unify the contributors so that they see themselves more as members of a single group rather than isolated individual contributors. The prospect of an intellectual property reward based on group effort may also increase group cohesiveness, leading to greater collaborative effort.
Mandel, at 21. Essentially the IP reward is protection from infringement, which really is bestowed individually.
The Fine Brothers created a problem when they thought they were creating a solution. They relied on IP law for the solution, but internet users reacted adversely. Not only was the problem exacerbated, their solution was not achieved. Mandel offers a different perspective and approach to this commonly sought solution (IP protection) for creatives. While his perspective may seem a bit utopian, I gleaned from Mandel’s article that more collaboration among attorneys, and individuals across industries will inevitably lead to a better understanding of how we advise our clients who, if they have not already, will conduct their business within the digital landscape.
Sources:
1. Gregory Mandel, Research Paper, To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. Rev. 1999 (2011).
2. Abby Ohlheiser, The Fine Brothers Thought They Had Found the Future of YouTube. They Were Wrong, Washington Post, Feb. 2, 2016, https://www.washingtonpost.com/news/the-intersect/wp/2016/02/02/after-youtube-outrage-the-fine-bros-decide-not-to-trademark-react/