In the interconnected series of tubes that is the internet, it’s common for blog posts and other commentary to embed or link to Youtube videos. And many times, live presenters will choose to include a relevant clip to supplement their speech. But what are the limits of using content someone else created for your own benefit?
First, this issue presents a question of copyright law. Copyright rights attach to “original works of authorship,” including literary, dramatic, musical, and artistic works, including video recordings and motion pictures.
Copyright rights attach when the work is created and “fixed” in a tangible medium of expression. Taking the step to register a copyright with the United States Copyright Office, while not required, provides a number of very advantageous benefits.
When a video is created and fixed in a tangible medium, even if unregistered, the owner acquires “copyright rights,” commonly referred to as Section 106 rights. 17 USC 106 states that the copyright holder has the exclusive right to reproduce, distribute, publicly perform or display the work, or prepare a derivative work based on the original.
However, an exception to the “exclusive” 106 rights exists in the provision for “fair use.” 17 USC 107 states that reproduction for the purpose of criticism, comment, news reporting, teaching, scholarship, or research does not infringe on the copyright owner’s Section 106 rights. To determine whether the use of a copyright falls within the fair use exception, courts will look at the following factors:
If you are planning to link to or embed another person’s original content, you should ask yourself five questions to gauge your exposure to copyright infringement claims:
The question of whether embedding a YouTube video infringes the copyright owner’s public performance right under 17 U.S.C. § 106(4) has divided courts and generated significant litigation. The Second Circuit’s decision in Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018) held that embedding tweets containing photographs could infringe the public performance right, even when the host server never stored a copy of the photograph. This decision — applying the “server test” rejected in the Second Circuit — created substantial uncertainty for websites that embed third-party videos and images.
The Ninth Circuit has applied the “server test” from Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), which holds that inline linking and embedding does not infringe the display right because the image is served from the original server, not copied to the embedding site’s server. Under this test, embedding a YouTube video does not create a copy — the video remains on YouTube’s servers and is simply displayed within the frame of another website.
YouTube’s terms of service grant permission to use YouTube’s embedding functionality for videos that YouTube’s owners have not disabled for embedding. This is an important point: many content owners specifically enable embedding of their YouTube videos because embedding drives views back to the YouTube platform (generating ad revenue) and increases the video’s viewership. When a content owner disables embedding on a video, using YouTube’s embed code on a third-party site is not authorized.
Applying the four-factor fair use test to specific YouTube use cases yields different results depending on the circumstances. Here is a practical analysis of common scenarios:
Using short clips of a YouTube video as the subject of commentary, criticism, or review is the paradigmatic fair use scenario. Critics who embed or clip video content to support their analysis — a film reviewer showing 30 seconds of a movie to discuss a scene’s cinematography, a technology blogger showing a product demonstration video to discuss its accuracy — are operating squarely within the transformative use framework. The use is transformative (it adds critical commentary), typically non-commercial, and limited in amount. This is fair use.
Educational use of YouTube video clips in a classroom setting, or in online educational courses, is generally protected by the fair use doctrine under the fourth fair use factor — educational non-profit use weighs heavily in favor of fair use. The TEACH Act, 17 U.S.C. § 110(2), specifically carves out certain educational uses in accredited non-profit institutions. However, commercial online education platforms must be more careful — the commercial nature of the use weighs against fair use even when the content is educational.
One of the most common copyright mistakes is using a copyrighted song as background music in a presentation, video, or online streaming session. Courts have consistently held that using music as background accompaniment does not transform it — the music retains its original function as music, and the use is commercial or semi-commercial in most contexts. YouTube’s Content ID system will automatically detect and monetize (or mute) videos containing copyrighted music, even in the background. Using copyrighted music in a YouTube video without a license is infringement unless the use is truly transformative.
Using YouTube video clips in news reporting is protected as a recognized purpose under 17 U.S.C. § 107. However, the protection is not unlimited. The clip must be directly relevant to the news report (Factor 1: purpose and character), limited in duration to what is necessary to illustrate the news event (Factor 3: amount and substantiality), and must not substitute for the market for the original video (Factor 4: market effect). Republishing an entire YouTube video under the guise of reporting on it is not fair use.
Video creators on YouTube can license their content under Creative Commons (CC) licenses, which allow specified reuse without individual permission. CC-BY (Attribution) licenses permit reuse for any purpose, including commercial, provided the original creator is credited. CC-BY-NC (Attribution-NonCommercial) licenses permit reuse only for non-commercial purposes. Before using a YouTube video, check whether the creator has applied a Creative Commons license, and if so, whether your intended use falls within that license’s scope.
Creative Commons licenses are not blanket authorizations. A CC-BY license does not authorize you to remove attribution, make derivative works that misrepresent the original, or use the content in a way that violates the specific license terms. Read the license carefully before relying on it.
If you have questions about copyright law or copyright infringement, contact the copyright attorneys at Revision Legal at 855-473-8474 or complete our contact form.
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