Fair Use of Youtube Videos

By Eric Misterovich

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?

Copyright Basics

First, this issue presents a question of copyright law (our breakdown of copyrights v trademarks v patents is here). 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.

Fair Use Exception

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:

 

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. the effect of the use upon the potential market for or value of the copyrighted work;

 

If you are planning to link to or embed another person’s original content, you should ask yourself five questions to gauge your expose to copyright infringement claims:

  1. Do you have permission to use the video? The safest way to protect yourself is to obtain permission to use the video from the owner. While some may argue the sharing options on the video implicitly give you permission, an email explaining your intended use is safer.
  2. What are you doing with the video? Are you using this for education or for profit? Are you using the entire video or a 10-second clip? How long is the original? Are you editing and transforming the content into something original or are you just pressing play? You should be able to perform your own balancing test of these questions.
  3. What is the video? Using clips of fictional and creative works, rather than non-fictional material, is more likely to cause infringement.
  4. Will your product replace the original? If your use of the video could injure the original, either in taking away views or damaging sales, you are trending towards infringement.
  5. Do you have a disclaimer? While it is not one of the four factors a court would review, the inclusion of a prominently placed disclaimer can provide some benefit against infringement.

 

If you have questions the fair use of Youtube videos, you should consult with an attorney. To contact our intellectual property law attorneys, please complete the form below.

 

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