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A Fine Lesson...(for IP and Creative Arts Attorneys)

By Whitney McGuire

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 (https://en.wikipedia.org/wiki/Fine_Brothers) became Internet pariahs over the span of 24 hours 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", https://en.wikipedia.org/wiki/Fine_Brothers#React_series) 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 children, elders, teens, adults, and YouTubers of all ages viral videos or pop culture trends and having the viewers react to the content. The videos have become wildly popular and appropriated for use by others, and the Fine Brothers even singled-out Ellen DeGeneres for appropriating the concept for her show (https://ww.youtube.com/watch?v=3CMS9xnBRkc). Here's an example of a "react" video: https://www.youtube.com/watch?v=NeGe7lVrXb0.

Essentially, the Fine Brothers did what many brick and mortar corporations do outside of the digital landscape; they took advantage of an opportunity to expand through franchising. They compared their licensing idea to a chain restaurant, in which they started the original company, and helped outfit franchisees with logos and support for a share of the franchisees' profits, at a 30% share. However, the Fine Brothers rooted their franchise idea in trademark law, which earned fury, mockery and accusations from other YouTube creators. As a result, the Fine Brothers lost tens of thousands of followers by the hour. According to the BBC, they became "the convenient face of many people's frustrations." These creators, according to The Washington Post, claimed that the Fine Brothers were trying to "'own' an entire genre of online videomaking -- in direct opposition to the democratic, DIY spirit that many YouTubers have embraced." (https://www.washingtonpost.com/news/the-intersect/wp/2016/02/02/after-youtube-outrage-the-fine-bros-decide-not-to-trademark-react/)

One week later, the Fine Brothers have done a complete 180. According to The Washington Post, the brothers have discontinued their licensing program, and decided not to pursue infringement claims against other creators who sample their works or borrow the tropes of the "react" genre (https://www.washingtonpost.com/news/the-intersect/wp/2016/02/02/after-youtube-outrage-the-fine-bros-decide-not-to-trademark-react/). They even deleted the videos in which they explained and promoted the licensing program on their YouTube page. Many questions remain as the dust begins to settle.

Why did the users react so strongly to this incident when this type of expansion happens so often in business? What is it about Intellectual Property (IP) law that is frustrating to people? The obvious answer, quite frankly, is most don't understand it. 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 Internet, creators are staunchly opposed to certain aspects of the ideology and enforcement of the 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 user within the DIY digital landscape, or has IP law, in practice, begun to stifle creativity and 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 IP 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 it 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. (Gregory Mandel, Research Paper, To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. REV. 1999 (2011)., 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. Although the monetary reward for subscribers is an external motivator, 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. This refers to innovation produced by technology users, as opposed to individuals whose profession it is to develop technology. (Id.) Such innovation 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 uses. 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 and 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 others' 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 brothers), they threatened the creative freedom that their supporters and fans felt entitled to, within the DIY community. What, then, can be done? I honestly don't know, but I agree with Mandel, who maintains that IP 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. Furthermore, most people either don't know that these laws exist or misunderstand the laws' applications.

With regard to 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).) Like most creators, the Fine Brothers 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 it 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. The Fine Brothers saga exemplifies the thin lines between autonomy and control, and between individualism and social connection; both sets are 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. The problem exacerbated, and the Fine Brothers' 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 his article that more collaboration between and 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.

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This page contains a single entry from the blog posted on February 5, 2016 5:06 PM.

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