Unwritten Criticism: Audiovisual Forms of Critique as Fair Use

Abstract

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other creative audiovisual forms that largely criticize or comment on an original work in a non-verbal, imagistic, or visual manner. It discusses the emphasis that the current fair use jurisprudence places on verbal and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques when analyzing the critical elements of online audiovisual works. Part I discusses the statutory codification of the fair use doctrine in copyright law and how the doctrine has been shaped throughout the years by subsequent judicial interpretation. Part I also discusses the history of YouTube reaction videos as a unique audiovisual format. Part II explores the ways in which courts have recently applied the fair use doctrine to alleged works of audiovisual criticism and the emphasis courts place on verbal and written critical elements. Part III argues that courts assessing online audiovisual works as alleged works of criticism should incorporate analytical tools and interpretive theories commonly utilized in film studies contexts—including an analysis of editing, framing, composition, and camera movement—when parsing alleged works of audiovisual criticism for transformativeness under factor one. Finally, Part IV uses a recently decided fair use case out of the Southern District of New York as a real-life example to explore how a court might apply film-specific analytical tools to more accurately identify and assess the critical elements of a work of audiovisual criticism for fair use purposes.