What’s Legal in YouTube: Fair Use vs. Copyright Laws

What’s Legal in YouTube: Fair Use vs. Copyright Laws

Copyright law is perhaps one of the grayest areas of the internet today, and violations happen more often than you think.

Well, you might know but potential copyright violations can be confusing to understand if you do not know the how and the laws that apply to your particular situation, and this is particularly around the issue of copyrighted videos on the ever-growing platform — YouTube.

In most circumstances, YouTube creators don’t even realize that they are violating copyright laws.

In most common YouTube video copyright infringement cases, it normally involves using songs without permission of the copyright holder that cannot be claimed as “Fair Use.” To be able to understand this defense to copyright infringement, we have to distinguish the difference between Fair Use and copyright infringement.

What is Fair Use?

Fair Use is what protects your right to use copyrighted material in videos in certain ways, and it’s a fundamental part of using someone else’s work.

Fair Use is really, above all, a set of factors and considerations that help us figure out what and how we can use someone else’s work without infringing on the original owner’s rights without asking for their permission to use it in the first place.

Fair Use is normally determined by a judge, who will analyze how each of the four factors of Fair Use applies in each particular case. So there’s really no bright-line rule on how to determine whether using someone else’s work without permission is actually okay or not.

What Are the Factors of Fair Use?

The following are the 4 factors of Fair Use that a judge looks at and analyzes to determine whether your use of someone else’s work is allowed even if you do not ask for permission:

  1. The purpose and character of the use. This normally will include whether the information will be in use for commercial or for non-profit and educational purposes. Typically, the courts will focus on whether the use is transformative. This essentially means whether it adds a new expression or meaning to the original, or whether it merely copies from the original. In case its commercial, it’s less likely to be considered “fair.”
  2. The nature of the copyrighted work produced. The usage of material from a primarily factual work is more likely to be considered fair than using fictional work.
  3. The amount of content and sustainability of the portion used in relation to the copyrighted work as a whole. If you borrow small bits of content or material from an original work is more likely to be considered fair use than borrowing large portions. However, in some circumstances, even a small taking may weigh against fair use in case it constitutes the heart of the work.
  4. The effect of the use on the potential market. If the copyrighted work harms the copyright owner’s ability to profit from his or her original work, then it’s less likely to be fair uses. In some circumstances, the courts have had to make some exceptions under this factor in cases involving parodies.

All 4 factors will be weighed against each other to determine whether your use of someone else’s work is considered Fair Use.

If the judge determine that your work is considered commentary or criticism and does not substantially harm the original owner that you are using their work, then the judge will determine that your use of the work is Fair Use and you will be allowed to use the work.

What is Legal and Allowed on YouTube?

The most common YouTube Video copyright infringement involves using songs without permission of the copyright holder that cannot be claimed as Fair Use.

In most cases of copyright infringement, it will involve a producer using songs from a film or video without the consent or permission of the copyright holder, or in other scenarios, placing segments of movies or music videos on their websites where it’s easy for the public to access and download them for free.

These actions have cost studios millions of dollars in royalties, therefore, due to this, the entertainment industry giants have begun cracking down on YouTube.

In case your YouTube works are purely for educational purposes, then the use of copyrighted material will fall under the Fair Use provision, this allows for the reasonable use of the copyrighted work, without permission, for research or criticism or education.

While this is not full-proof, it’s always better to give attribution and credit to the original copyright owner somewhere in the video itself or at least somewhere in the YouTube description.

If you are a YouTuber and have any questions about what and what is not allowed on YouTube, you can contact me, Sam Mollaei, Esq., YouTube Lawyer, to learn how you can protect yourself as a YouTuber.

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