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
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.”
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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.
Background Music
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.
Parodies
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.
Overdubbing
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.
Mashups
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.
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