Fair Use in YouTube

Fair Use in YouTube

As many people have noticed large portion of big YouTuber’s been targeted recently by wave of Copyright Strikes. The status of Fair Use doesn’t seem to matter at the moment, since no matter how much you respect it you still can be targeted by so called “Copyright Trolls” this includes record labels, movie/tv companies, anime studios and some rarer cases even other networks/youtubers issuing strikes to people who use their content in Fair Use context. To Recap what is Fair Use again…


 

What falls under Fair Use?

  1. Commenting on or critiquing of copyrighted material
  2. Using copyright material for illustration or example
  3. Capturing copyrighted material incidentally or accidentally
  4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon 
  5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
  6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

In addition to these things, here is a list of common types of videos on YouTube which in my personal opinion would likely be considered fair use (or at least should be under common sense logic and current online practice). Ultimately, though, it would depend on what arguments a court would be willing to accept, and the case for some is stronger than others.

  1. Anime music videos and film mashups
    • The video portion of such videos is very likely fair use as they only use small, highly edited portions of the original video footage. The audio portion is less likely to be fair use as these videos typically use an entire song, yet is still arguably fair use because of the non-commercial, transformative use of the song, low probability of harm to the market for the original song, and the impossibility of the average amateur video creator to license the song.
  2. Parody videos (such as a political parody using satirical lyrics set to a copyrighted song)
    • Note that courts have drawn a distinction between parody (which comments on the original work) and satire (which comments on an unrelated subject), and have held that parody is more likely to be fair use. However many satires are still likely to be fair use based on their non-commercial, transformative nature, low possibility of harming the market for the original, and impossibility of licensing. Political parodies/satires are also likely to be protected against copyright claims by the higher first-amendment protection traditionally granted to political speech.
  3. Filming yourself singing a copyrighted song (lip-sync videos may be less likely to be fair use)
    • This is questionably fair use since normally professional recording artists who perform cover recordings would be required to obtain a compulsory license and pay a fee set by statute to a performing rights organization in order to make a cover, and obtain a syncronization license from the record lable to use it in any kind of video production. However, at least in my opinion, it is doubtful this requirement was meant to apply to amateur performers like teenagers singing copyrighted songs in their bedrooms, and such people arguably could not be expected to navigate the complexities of the licensing process, which would be incomprehensible to the average person simply seeking to post a video of themselves singing a song on YouTube. Accordingly, I think a valid case could be made for fair use.
  4. Movie reviews containing clips of copyrighted films
    • This counts as commentary and criticism of the original film and is very likely fair use.
  5. Video game walkthroughs and tutorials with commentary

    • Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials (“let’s plays”). Both the player’s original commentary and the fact that their gameplay creates a unique subjective experience with the game make the use transformative. As long as you include your own original commentary about the game and don’t just post straight raw footage from the game, it is likely fair use. It is possible that even un-commented gameplay is still fair use, though this is less certain.
  6. Posting short news clips in order to comment on a current event
    • This also falls under the commentary category of fair use, though there likely would need to be some original comment on the clip rather than just posting the straight unedited clip.
  7. Non-commercial podcasts and V-logs containing brief uses of copyrighted songs (especially for purposes of comment about the song)
    • This is likely fair use because of the minimal nature of the use and non-commercial aspect. If the podcast or V-log is for profit it is less likely to be fair use.
  8. Home videos or documentary-type videos which capture copyrighted material in the background, such as a TV show playing on a TV or a song playing on the radio
    • When copyrighted material is incidentally captured in the background of a video (for example, a baby dancing to a Prince song as in the case Lenz v. Universal ) courts have held it to be fair use. This would also include things like home recordings of a school talent show or dance performance that happen to include performances of copyright songs.

Videos that are NOT likely to be fair use include:

  1. Posting unedited clips from movies and TV shows
  2. Posting professionally produced music videos in their entirety
  3. Using copyrighted music in the soundtrack to a commercial or some type of video which you stand to gain financial benefit from, which would likely infringe on the artist’s synchronization right.
  4. Posting so-called “lyrics videos”

    • If your video is merely a copyrighted song with the text of the lyrics on the screen and maybe a few pictures of the artist or the album cover, this is likely not transformative enough to be considered fair use, since you are not really adding anything new or changing the message of the original. These are also much more likely to serve as a substitute for the original, defeating a claim of fair use.

These things are only examples and are by no means a complete list of types of videos that may or may not be fair use. The most important thing to keep in mind is whether your video is (1) non-commercial, (2) changes or alters the original work in some way, (3) uses no more of the work than necessary for your purpose and (4) does not harm the market or substitute for the original work. With the last of these, it is important to keep in mind that even if you used an entire song to make an anime music video or film mashup for example, your video could actually have a positive effect on the market for the original song by serving as free advertising and motivating people to go out and buy the song.

Finally note that making money from a video does not necessarily preclude fair use, but it does reduce the chances of a video being found to be fair use. If the copyrighted material is highly factual and you are using it for news reporting or commentary, it may still be fair use to use it commercially, but a mashup that you make money from might not be. YouTube also has stricter rules for videos it allows to be monetized and generally requires you to prove that you have a license for the material, so claiming fair use may not be enough to satisfy YouTube that you have the right to use it.


 

Now that the introduction is out of the way its plainly clear that majority of companies are not respescting Fair use and still issuing strikes on channels that are using their content perhaps on review purposes or satire for example. YouTube hasn’t really made any real improvements or approaches aside from their earlier mission statement, that hasn’t seem done so much so far. So for now we have to hope that Copyright trolls will get sanctions for sending false claims for videos that are falling under fair use.