The underestimated legal risks of reaction videos: A guide for streamers, influencers and agencies

Introduction: Reaction videos and their popularity

Reaction videos are a popular format in the online world, especially on platforms like YouTube and Twitch. They show people reacting to a certain video, song, movie trailer or similar and sharing their thoughts and feelings about it. This format has become an integral part of online culture, attracting millions of viewers worldwide.

The reason for the popularity of Reaction videos is their authenticity and interactivity. They allow viewers to experience the immediate reactions and emotions of their favorite influencers, creating a personal and intimate connection. Viewers appreciate the honesty and openness expressed in these videos and feel more connected to influencers as a result.

In addition, Reaction videos give influencers the opportunity to showcase their personality and unique style. They can share their thoughts and opinions on various topics and thus strengthen their personal brand. This can help build a loyal and engaged community and increase the influencer’s reach and visibility.

However, despite their popularity and the many benefits they offer, Reaction videos can also pose legal problems. These are often underestimated because the legal aspects of online content are complex and difficult for many people to understand. It is therefore important to be aware of the potential legal risks and to take appropriate measures to minimize them. After my article on the subject from February, I would like to expand the information a little more, as the proceedings continued.

Copyright challenges with Reaction videos

The copyright challenges with Reaction videos are many and complex. Under copyright law, images and sound are almost always protected as “running images,” which means that video creators can resist having their material taken. Therefore, permission is required to embed copyrighted content in a Reaction video. If such permission is not granted, claims for injunctive relief and damages may be asserted.

An exception to the permission requirement is the so-called “right to quote”. This permits the use of a published work for the purpose of quotation, provided that the extent of the use is justified by the particular purpose. However, the right of citation has some requirements. So the Reaction video has to deal with the original in terms of content. It is not enough that the “quotes” are inserted and attached. The person reacting must establish an inner connection with their own thoughts and take in the content of the video and comment on it in terms of content.

The consequences of copyright infringement can be serious. They range from injunctive relief and claims for damages to criminal consequences. In addition, creators can ask YouTube to remove the material. In the event of a repeat offence, the user’s own channel may be blocked or deleted.

With regard to framing jurisprudence, which describes a method of making another’s contribution usable on one’s own homepage by linking to it, the Federal Court of Justice (BGH) in Germany has ruled that framing is permitted under certain conditions. According to a ruling by the Federal Court of Justice (BGH) and the European Court of Justice (ECJ), framing does not constitute communication to the public within the meaning of copyright law if it does not open up a new audience. This means that if the author does not provide any access restrictions and makes his works available to all Internet users, there is no copyright infringement. However, collecting societies may contractually make the granting of licenses subject to the condition that users guarantee protection against framing.

This complex legal situation shows that despite their popularity and reach, Reaction videos also pose legal risks that creators must consider.

Personality rights and copyright law: Hidden pitfalls with Reaction videos

Infringement of privacy rights in Reaction videos is a complex and often overlooked legal challenge. The right of personality protects the individual personality of a person and his or her right to determine how his or her person is portrayed. If a Reaction video responds to an original video that already violates privacy rights, this can lead to significant legal problems.

An example of this could be that the original video portrays a person in a way that violates their privacy or shows them in a false light. If an influencer then responds to this video and embeds it in their own video, they could also be guilty of violating privacy rights. This could lead to claims for injunctive relief and damages, and in some cases there could even be criminal consequences.

Another problem is that it is often difficult for influencers to judge whether the original video violates personality rights. In many cases, it is not obvious whether such a violation has occurred, and it may require legal analysis to determine. In addition, the original video may be removed from platforms such as YouTube because it violates personal rights. In such cases, the influencer might not even know that the video has been removed, and yet continue to have the Reaction video online, which is now reacting to an infringing original video.

Another relevant law in this context is therefore the German Art Copyright Act (KUG). The KUG regulates the right to one’s own image and protects the persons depicted. If the original video shows a person who has not given their consent to the publication of their image, this may constitute a violation of the KUG. If an influencer then creates a reaction video to this illegal original video, he could also be guilty of a violation of the KUG.

Given this complex legal landscape, it is imperative for influencers and agencies to be aware of the potential risks and take proactive steps to minimize them. This could include a thorough review of the original video for possible violations of privacy rights and the KUG before the Reaction video is created. It may also be advisable to seek legal advice to ensure that all relevant legal aspects are considered.

The role of agencies and their potential risks

The role of agencies in the world of reaction video and the legal risks involved are often underestimated and overlooked. While the attention is mostly on the streamers and influencers who create and publish the videos, it is often the agencies working in the background that play a crucial role. They are the ones who are often listed in the YouTube or Twitch imprint and bear responsibility for the content their influencers produce.

Agencies, which often have no idea about the individual content of their influencers, could unexpectedly find themselves facing legal problems. This is because they are usually the legal representatives of the influencers and can therefore be held liable for their actions. This can lead to a variety of legal consequences, including injunctive relief, damages, and even criminal charges.

A particular problem is that agencies can often be targeted by warning letters. Since they are in the imprint and the names and addresses of the influencers are often not known, they can easily become the target of legal actions. There are some rulings that hold agencies responsible in Reaction Video cases and find the issuance of injunctions against them justified. These judgments can impose unexpected costs and burdens on agencies and are a significant burden.

Furthermore, in addition to the injunctive relief that could be satisfied by removing the video, there could also be a threat of substantial claims for damages. These could arise from the infringement of copyrights or personal rights and could have a significant financial impact. It is therefore critical that agencies are aware of these risks and take appropriate steps to minimize them.

In my view, some of these judgments are wrong and do not take into account the real role and responsibility of the agencies. Nevertheless, they underscore the need for agencies to be aware of legal risks and take appropriate steps to minimize them. This could include, for example, adjusting their contracts with influencers to ensure they are adequately protected from legal consequences.

Final thoughts: navigating the legal challenges of reaction videos

The legal risks associated with creating and publishing Reaction videos are complex and often controversial. They require a deep understanding of relevant laws and court decisions, as well as an awareness of the ever-changing digital landscape. Therefore, it is crucial to seek legal advice before deciding to create or publish such videos.

As an attorney experienced in customizing such contracts and advising streamers, influencers and agencies, I can help you avoid the legal pitfalls and protect your interests. I know the industry and the legal challenges involved very well and can help you navigate this complex and often contentious area of law.

Reaction videos offer a unique way to expand your online presence, interact with your audience, and strengthen your brand. They are a vital part of digital culture and, when done right, can lead to significant growth and success. But it’s important to be aware of the legal risks and take steps to minimize them.

A special focus should be on the agencies, which often work in the background but play a crucial role. They should make sure that their contracts with influencers are designed in such a way that any damages resulting from warnings can be borne by the influencers themselves, at least in the internal relationship. Otherwise, in addition to the cost risk, such proceedings can also quickly trigger disputes between the parties, which can strain and even destroy the business relationship.

Whether you’re a streamer, an influencer, or an agency, I can help you understand the legal risks and develop strategies to minimize them. With my experience and knowledge of the industry, I can help you navigate the world of Reaction Video with confidence.

In today’s digital world, it is more important than ever to be aware of the legal risks and protect yourself accordingly. However, with the right advice and preparation, you can ensure that you reap the benefits of reaction video without exposing yourself to unnecessary risk.

In summary, the risk of reaction videos and the possibility of being claimed for them is often underestimated. It is important to be aware of these risks and take steps to protect yourself. However, with the right legal advice and preparation, you can ensure that you can take advantage of reaction videos without exposing yourself to unnecessary risk. It is my job and goal to help you navigate these risks and achieve your goals safely and successfully.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.