Monday, February 1, 2016

Backpedaling is the best

About the Fine Bros situation

Update: 
The Fine Brothers backpedaled like champs and basically said goodbye to the whole plan. As expected, and probably the best thing to do in this situation.

Original post:
So the Fine Bros are making a lot of noise about IP protection of their brand/format. In short, they have a popular series of youtube videos with a largely similar premise and name, they want their youtube video format protected under IP law somehow, and they want everyone else making such videos to pay them for permission to make them.

I'm not too worried about this situation. I'll explain some things: (this is according to Dutch law, other countries may have different rules. Generally not as different as one would think though.)

The different types of legal protection the Fine Brothers may get for their creations are
1) copyright protection
Copyright protection of their creations is fairly simple and easy to obtain. They don't have to do anything! The creation only needs to qualify as a work to enjoy copyright protection. This only means it has to meet some minimal standards of originality, which is no problem for any video they create.
However, copyright protects a work only against copying, i.e. other people blatantly ripping off your stuff. It does not protect ideas, so if someone wants to make a video about the exact same topic, copyright can't help you there. 'Formats' as of a TV show are a biiit of a grey area in copyright law, as in some very rare cases the integral copying of a format has been ruled copyright infringement. In general though, the format itself is just an idea and copyright law can't help you.

2) trademark protection
By contrast, trademark protection is not easy to obtain at all. As the name implies, a trademark is the symbol or name that serves to distinguish your product or service. There are strict requirements to a trademark, and it costs money to maintain per country you want to use it in. One should keep in mind that a trademark is -not- the right to sell products under that name/symbol, but the right to stop others from doing so. This is why a trademark is (generally) not allowed to be descriptive, because you're not allowed to stop people from describing their products.
In any case, a trademark protects the name or symbol under which a product is marketed. It has nothing to do with formats or content. A trademark on "Teens React!", though I personally would call it descriptive and deny it, may be possible. This does not stop people from making reaction videos in any way. They just can't sell them under the brand "Teens React!".

3) patent protection
Patent protection is even harder to get, as it takes a long time and a lot of money to acquire. A patent is probably closest to the kind of protection the Fine Bros want on their creations. It protects an invention and stops competitors from exploiting it at all for a certain period of time. They don't even need to have copied said invention from you, you can stop them doing almost anything in any situation.
However, one can't get a patent on artistic (literary, dramatical, musical etc. etc. ) works. So patents do nothing for youtube videos or formats thereof.

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In conclusion, legally speaking the Fine Bros don't have much to go on in my view. Sadly, that does not mean they can't abuse the youtube Content ID system for more than they are actually entitled to. Or that they can't pretend to have far-reaching IP protection of their works, and that everyone must have a license from them to be in the clear. And of course they can also send intimidating legalese letters to bully people into settlements. Anyone can do that, whether they actually have proper grounds for it or are just bluffing.

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