This excellent article by Megan O’Neill
When it comes to YouTube, copyright law can be a video creator’s biggest nightmare. Can you use footage shot by someone else? Can you cover or parody a song by a popular artist? When is it fair use to include copyrighted material in your YouTube video and when is it not? The lines are often blurred when it comes to fair use and copyright laws, as they pertain to YouTube, can be confusing. Hopefully this post, our complete guide to fair use and YouTube, will help clear up the confusion a bit. Read on as we debunk some common myths about copyright and fair use, find out what, exactly, fair use is, and discuss how to figure out if your use of copyrighted material falls under fair use.
Before you read any further it is important to point out that this information should be taken only as general guidance and not legal advice. If you aren’t sure one hundred percent about how fair use law relates to your specific situation then you should consult a lawyer. This information is taken from a YouTube talk on fair use, Mashups, Parodies & Lip Dubs: Ask A Legal Expert About Fair Use. In the video, Anthony Falzone, executive director of the Fair Use Project and associate director Julie Ahrens answer questions about fair use as it relates to YouTube. You can watch the video at the end of this post.
What is Fair Use?
Anthony Falzone gives a fantastic explanation of what fair use is. He says, “If you think about copyright as a series of restrictions, fair use is a set of exceptions. It protects your right to use copyrighted material in certain ways and it’s not a trivial little technicality—it’s a fundamental part of the copyright bargain. We don’t give copyright owners unlimited control over their content—we preserve a whole variety of uses and things that people get to do with copyrighted content without permission. And fair use is really, above all else, a set of factors and considerations that help us figure out which things we carve out of the copyright monopoly, and which things we let people do without permission.”
The 4 Questions To Ask
When you are trying to determine whether or not your use of copyrighted material is covered under the fair use doctrine there are four basic questions that you’ll want to ask:
1. What are you doing with the copyrighted content? If you are doing something highly transformative with the content then you will have more room under the fair use doctrine. You are more likely to be covered if you are saying something quite different from what the original creator was trying to say.
2. What is the nature of the copyrighted content you are using? Use of creative or fictional content (for example, a film or cartoon) is less frequently allowed under fair use than less creative, non-fictional material.
3. How much of the original content are you using? You should be careful to use a reasonable amount. Just use enough of the copyrighted content as you need to in order to get your point across.
4. Will your work serve as a substitute for the original? If your video will take away views or sales from the original then it is less likely to be covered under fair use. Additionally, you shouldn’t create work that occupies markets that copyright owners are entitled to exploit.
Before using any copyrighted work, ask yourself these four questions. If you have good answers for all of them and can justify your use of the content then go ahead. If you aren’t sure, consult a lawyer.
**A Note On Lawsuits
It is important to note that just because you think your work is protected under the fair use doctrine does not mean that the owner of the copyrighted content cannot sue you. They may still report you as violating copyright law and try to get your video taken down. If you are sure that you are in the right under fair use then you can counter their take down notice and try to explain your side and work things out with them to keep your video online.
Common Myths About Fair Use
In YouTube’s CIS Fair Use Q&A video, Julie Ahrens debunks some common myths about fair use.
Myth #1: If you are making money off a video using copyrighted content, this is not fair use.
Reality: Ahrens says that whether or not something is used for commercial purposes is not a factor that goes into deciding whether it is fair use or not. She says that there are many commercial enterprises that actually rely on fair use. So if you are creating commercial work, for profit, you can use copyrighted content as long as it falls under fair use.
Myth #2: As long as you give credit to the original creator then you won’t be liable for copyright infringement.
Reality: You are not required by law to give credit when using another person’s work under fair use and, by the same token, crediting someone will not protect you from copyright infringement. That being said, it is often advised to give credit when using someone else’s content. It just may help you avoid a lawsuit and sometimes all that the original creator wants is credit for his or her work.
Myth #3: If I use less than thirty seconds of copyright material, I’m in the clear!
Reality: There are no precise numbers dictated under the fair use doctrine when it comes to how much of a copyrighted video or song you can use. Simply put, the amount that you use just needs to be reasonably related to your purpose.”
Situations When Fair Use May Come Into Play
Ahrens and Falzone discussed a number of situations and types of videos that are common on YouTube, in which you may have questions about fair use. These include everything from parodies to news stories and background music that you have no control over. Read on to learn more about specific situations that may apply to you.
Have you ever shot a video at an event or place where there was copyright music or a band playing in the background? The incidental capture of copyrighted music in the background is considered fair use. However, the context and amount of use will be taken into consideration.
Scenes And Clips For Reference
If you want to use scenes or clips from a film or television show for reference (for example, in a review, in a video where you compare movie scenes to their real life locations, etc.) then this is fair use. However, again, it does depend upon the amount of the clips you use and the way in which you use them. You aren’t likely to get away with using an entire film, showing shots of the real life locations along side it.
Parody is big on YouTube, but you’ve got to be sure to do parody right if you want to be protected under fair use. A parody, by definition, must hold the original up to ridicule. You must reflect on the original in your parody. When you do this, you can go so far as to use clips from the original song in your own, including background music, voices or anything. However, you’ve got to be careful not to go overboard. Use only as much of the original as you need, relative to your purpose.
What if you want to dub over someone else’s video (song, cartoon, etc.) with your own voice? This is usually fine, as it is a highly transformative and creative use of the content. However, this would be considered a parody and, as such, it is important to critique or ridicule the original.
Video Games & Tutorials With Commentary
It’s a popular trend for people to create videos of themselves playing video games or use software while giving commentary. Falzone says that this is somewhat of a gray area, though it has been done pretty widely on YouTube without much repercussion. You probably won’t have much trouble because, at the end of the day, these types of videos probably help sales. But if you have concerns, consult a lawyer.
Using Copyrighted Content For News Coverage
When you are thinking about using copyrighted material for news coverage, it’s most important to ask yourself the fourth question—will your video serve as a substitute for the original content? If you are using footage from someone else’s coverage of an event to cover the same event then it probably isn’t covered under fair use. On the other hand, if you find footage related to the news story that serves your purpose but wasn’t originally created to tell the same story, you are more likely to be in the clear.
Performing Copyrighted Music On YouTube
There are a lot of YouTubers who play covers of original songs. Whether or not this is covered under fair use is tricky. Obviously, you will be putting your own spin on the song but whether this is transformative enough to make it fair use is sort of a grey area. It really depends on the artist and record label, though many times they’ll let you leave the video up because it spreads the word about their song. But in this case you may want to consult a lawyer or reach out to the record label on your own to ask.
A mashup puts together different copyright materials in a creative and transformative way, and Falzone says that mashups generally present interesting fair use questions. They are definitely transformative. However, the content used in mashups is also usually highly creative and some copyright owners have been pretty aggressive about going after people for using content in this way. However, more and more copyright owners are leaving this type of content up because it is free promotion for the original and YouTube has given them ways to monetize this content. But again, if you’ve got any questions then definitely consult a lawyer.
Posting The Entirety Of Someone Else’s Video To YouTube
If you are posting someone else’s video on YouTube for archival purposes or to spur a conversation in the comments then it may fall under fair use. However, you cannot post a full music video or another popular YouTube video just to get a lot of views on your channel and say that you fall under fair use because you are trying to start a conversation.
Check out the video below to watch the Fair Use project’s Anthony Falzone and Julie Ahrens answer common questions about fair use and copyright for yourself. If you still have questions or are unsure if your particular situation falls under fair use I will once again stress that you should speak with a lawyer. If you’ve had any interesting experiences with YouTube copyright and fair use, please share them with us in the comments below.