The term “fair use” has been used as a defense to every claim of copyright infringement made on YouTube. Guess what? Its not. The defense of fair use to claims of copyright infringement can only be used in some very particular circumstances. Here is our some guidelines to think about concerning fair use. This guide is not legal advice but just recitals of the law. If you are not sure, always best to go ask your friendly neighborhood lawyer.

As a YouTube creator, you will have probably heard of the “four fair use factors.” These factors include: (1) the purpose and character of the use of copyrighted content; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of copyrighted content used in relation to the work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. These factors originate from case law as well as the United States Copyright Act. When determining whether use of copyrighted material is protected under the doctrine of fair use, courts must balance these factors against one another, with each factor being given equal weight. Below, we will break these four factors down, noting what YouTube creators should keep in mind with each.

 

THE PURPOSE AND CHARACTER OF THE USE

This is the most well-known factor in the fair use analysis because it is the source of the ever-cited term “transformative.” When assessing this factor, courts tend to favor nonprofit and educational use over commercial use, however monetization under the fair use defense is not completely prohibited. The “transformative” factor means that a fair user of copyrighted content must use the work in a way that creates something new. The Stanford Copyright and Fair Use Center relevantly states that “[i]n a parody … the parodist transforms the original by holding it up to ridicule. At the same time, a work does not become a parody simply because the author models characters after those found in a famous work.” Applied to the context of YouTube, this means that use of another creator’s content does not alone create a parody: you must also transform the original content as well. Similarly, taking an episode of your favorite cartoon and dubbing it over with another language does not necessarily mean your use is fair because you have not added new meaning or insight.

Things for YouTubers to consider:

  • Am I adding new meaning to the content?
  • Am I transforming it in any how?
  • Is the new work intended for a different audience?
  • Does the content I’m using belong to the same genre as the content I am creating?

 

THE NATURE OF THE COPYRIGHTED WORK

This factor is a little easier to understand than the others. Here, the consideration focuses on the “nature” of the original copyrighted content. This analysis operates on a sliding scale: on one end of the spectrum you have entirely private, unpublished content, which receives the highest level of protection, content created in a unique manner such as music and films, and content created for nonprofit and educational use. On the other end of the spectrum, receiving the least amount of protection, you have factual, historical, or biographical content. Most content on YouTube falls somewhere in between these two extremes.

Things for YouTubers to consider:

  • Where does the copyrighted content come from?
  • What was the original content used for?
  • Was the content I’m using published before?

 

THE AMOUNT AND SUBSTANTIALITY OF THE PORTION OF COPYRIGHTED CONTENT USED IN RELATION TO THE WORK AS A WHOLE

This concept seems simple, but may not be for everyone. Small clips are more likely to be considered fair use than larger clips. Easy, right? Not really. Courts have held in the past that even small clips of content used may not be considered fair use if the content used is the “essence/heart” of the copyrighted work. For example, using the reveal that Darth Vader is Luke’s father is the heart of The Empire Strikes Back. Using a scene of less significance in the film would more likely be considered fair use. However, there are also situations in which use of the essence or heart of the work may be necessary in order to sufficiently parody another work. In the famous case Campbell v. Acuff-Rose Music, Inc., 2 Live Crew parodied the song “Oh, Pretty Woman” and used what was considered the heart of the work. There, the court found the use to be necessary because “that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” When parodying a work, consumers must be able to readily identify the work being parodied, and this may require using the heart or essence of the work.

Things for YouTubers to consider:

  • Is the content I’m using the “essence/heart” of the work?
  • Am I using a significant portion of the copyrighted work?
  • If I am creating a parody, is the “essence/heart” necessary to identify the work being parodied?

 

THE EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK

Lastly we must consider the economic effect of the use. The consideration here is whether the use of the copyrighted content undermines the income or potential income of the original work’s owner. If someone watched your video, would they now be less likely to watch the original video? For YouTube creators, this factor will most likely arise when discussing parody videos diminishing the value of original content. However, courts see the loss of income from parody very differently than other financial damages arising from fair use, because one use comments on the original copyrighted work and the other is merely appropriating it.

Things for YouTubers to consider:

  • Am I directly competing with the owner of the original content?
  • Am I taking away clicks on the creator’s original video?
  • Is this a parody of the original content?

As you can see, many of these factors impact each other and flow together to form an amorphous legal blob. The factors are ambiguous, but this is for good reason. Without them, we would have an Orwellian copyright system not flexible enough to accommodate the complex nature of intellectual property rights management. Final word of advice: consider these factors thoroughly before you post or decide to monetization of your videos.  Unfortunately, the final decision as to what is fair use is determined by a judge or jury, so be VERY careful.

Thanks Martin Passante and Ma’idah Lashani for their hard work in putting together this guide. All my use of their materials is clearly fair use.