YouTube is probably the most used video sharing website currently online. It offers opportunities for your business, plus tutorials, personal videos, music and much, much more. Unfortunately, most people don’t understand how YouTube copyright works.
Here at Law 4 Small Business, P.C., we’re often called upon to help media companies navigate the confusing waters of YouTube.com.
What you can and cannot do on YouTube.com can appear as a confusing mix of YouTube policies and copyright law. Now it would take pages upon pages to fully explain the ins and outs of the intersection between YouTube and US Copyright Law, so here is the simplified version. When it comes down to it, copyright law in-of-itself is not what’s confusing. What IS confusing, is the myriad of potential copyright claims that can be contained within a video.
YouTube is required by law to take down “infringing content” when it receives a proper “DMCA Take Down Notice.” Because of the sheer volume of videos uploaded in a given day, YouTube deals with a LOT of DMCA Take Down Notices. So much so, that YouTube has created formal processes and mechanisms to deal with such notices. However US Law doesn’t stop at a “DMCA Take Down Notice”. It also contains provisions for “Counter-Notice,” and requires YouTube to put videos back up after receiving a valid counter-notice (within a certain period of time). YouTube is legally constrained in what it can and cannot do. Further, YouTube wants to avoid the possibility of being a “publisher,” because such a designation can carry significant liability for YouTube. Therefore, YouTube treads very carefully — by NOT proactively filtering, viewing or reviewing the videos people post, yet providing tools to enable large content providers to detect when someone is posting infringing material. (For more information on the DMCA, please see our previous blog on the topic)
For more information, you can read the DMCA in its entirety here (warning, PDF).
A video on YouTube.com generally consists of two elements: the video itself and the accompanying audio. If a video features multiple audio clips, there could be different copyright owners for each audio clip. It’s even more complicated than this, however. Consider a video with (1) narration, and (2) a song. If the narrator is you, you own the copyright for your voice (although if you’re reciting someone else’s text, such as a popular poem, that someone else could own the copyright in the text, even though you spoke the words). The song is even more complicated than that. There are generally three components to a song:
- The performance
- The lyrics
- The music score
Any combination of those can be claimed by (1) a music distributor, (2) a record label, (3) the performer / music artist, and (4) the song writer.
Imagine you’re a broadcaster and have a music artist playing on your show. Getting that artist to sign a copyright waiver, release or assignment may not be enough. Did that music artist sign with a record label? Did that music artist use the material from a third-party song writer? Usually, the music artist isn’t in full control of his or her performance and you will need to obtain a waiver, release or assignment from the record label (or distributor) to rebroadcast or show the performance on YouTube.
If you’re an individual simply creating your own videos, you need to be VERY careful about incorporating your favorite music — you will infringe on the copyright of one or more claimants and generate a YouTube Strike on your account. A YouTube Strike is when there is a valid complaint against you as a video publisher for some major infraction against YouTube policies, usually related to an undefended copyright or trademark infringement claim by a third-party.
Copyright law itself is not confusing, but the potential claims can be infinite!
And that’s just a very basic overview of potential audio pitfalls. Once you consider video AND audio, you are looking at an almost endless string of copyright claims.
- Did you incorporate (in a significant way) a photo or image from someone else?
- Did you use the text, story or language from someone else?
- Did you use video or audio (in a significant way) from someone else?
Actions that Violate YouTube Copyright:
- Put a professional song into your video.
- Have your favorite song in the background of your video.
- Even a “piece” of your favorite song can be identified by YouTube, generating a strike.
- You cannot even perform a song yourself if it’s not yours. The lyrics and music score would be owned by someone else, even if you performed it yourself.
- You cannot even make up your own words to a music score you like. The music score is owned by someone else, even if you performed it yourself and you came up with your own lyrics.
Fair Use is Very Limited in Scope
Now there are plenty of videos going around that say they are in fair use, but they are mistaken. Chances are, if you’re using someone else’s material, it is NOT fair use. Fair use itself covers a much smaller spectrum. In the United States, fair use generally applies to commentary, criticism, research, teaching, or news reporting. The courts generally look at four factors when considering whether use of another’s material is fair use:
- The Purpose and Character of the Use. Courts look to whether your work is “transformative” or not. In other words, is it creating something new or copying the original work? They also examine what the work is being used for. Is it being used for commercial nature or for nonprofit educational purposes? Just a hint, commercial uses versus non-profit uses will look less like fair use, and “non-profit” is a legal term of art that does NOT mean “you’re not getting paid”.
- The Nature of the Copyrighted Work. Work involving purely factual material will generally be deemed fair over purely fictional.
- The Amount and Substantiality of the Portion Used in relation to the Copyrighted Work as a Whole. Borrowing a small portion versus the entire copyrighted piece will look more like fair use.
- The effect of the Use upon the Potential Market for, or Value of the Copyrighted Work. While a parody can be an exception to this, if the borrowed work has a negative impact on the copyright owner’s ability to generate revenue, this will impact a court’s finding of fair use.
Fair Use Myths
If you are questioning your fair use, it might be time to check with a lawyer!
There are lots of Fair Use Myths. Hopefully you aren’t relying on one! Here is a list of common fair use myths:
- “I’m not making money so its fair use!” FALSE
- “I’m a student, so its fair use.” FALSE
- “I’ve made changes to the original work, so the original copyright holder cannot protect the new work.” FALSE
- “I gave credit to the original artist or performer, so its fair use.” FALSE
- “But I disclaim that the copyrighted work is mine, I can use the work as fair use.” FALSE
- “But its just for entertainment! It’s fair use!”FALSE
- “If I only take portions of someone else’s work, and mix in my own, that’s fair use.” FALSE
The best way to avoid your video being removed from YouTube and/or receiving a “strike” against your account is to refrain from using the copyrighted material of a third-party. If you’re a content producer yourself, and you’re receiving what you feel are invalid copyright complaints against your work, stay tuned for an upcoming article entitled, How to Successful Defend Against Copyright Claims on YouTube.
Law 4 Small Business. A little law now can save a lot later.