Many creators think that if they include phrases in credits such as, “no infringement intended” or “credit to the original owner”, fair use automatically applies. Unfortunately, there is no magic phrase you can say that will protect you from a copyright infringement claim. The easiest way to avoid copyright issues altogether is to create 100% original content. However, if you do choose to incorporate copyrighted content into your video, your best defense against a copyright claim is to gain a full understanding of fair use. Let’s break down the details together!
What is Fair Use?
Fair use is a legal doctrine that protects your right to use a portion of copyrighted material without getting permission from the original copyright owner. While it offers creators more flexibility to use content they do not own, if creators use it incorrectly it can lead to trouble down the road. For example, some creators have had their videos taken down, monetization halted, or in the worst cases, their YouTube accounts banned or lawsuits brought against them. Different countries have varying rules about fair use and when it is okay to use another creator’s work without permission. For instance, based on United States copyright law, works of “commentary, criticism, research, teaching, or news reporting” may fall under the doctrine of fair use. Regardless of where you are from, due to fair use flexibility, courts will always deal with these situations on a case-to-case basis.
Four Factors of Fair Use
If you do decide to incorporate someone else’s copyrighted content into your video, there are a few questions to ask yourself to determine whether or not you will be protected by fair use:
1) What are you planning to do with the original copyrighted content?
The first factor a judge will look into when it comes to fair use is, what is the purpose or character of the use. Courts will determine whether the use is transformative; questioning whether your work adds a new meaning to the original copyrighted, or if it is simply a duplicate of the original. A judge will also look into whether your content was made for commercial or educational use. Typically, content made for commercial use is less likely to be considered fair use than content made for nonprofit or educational purposes. Though it is unlikely, in some limited circumstances, it is still possible to monetize a video and take advantage of the fair use doctrine.
2) What is the nature of the copyrighted content you are planning to use in your video?
This factor focuses on the “nature of your work” or whether the copyrighted content you pull from is a work of fact or fiction in addition to whether it is published or unpublished. Within fair use, copyright law offers works of fiction, like a film or a cartoon, more protection than works of fact, like real-life footage from a news story. Similarly, the law offers more protection for unpublished works rather than ones that have already been circulated. The “nature of the work” is the least significant part of the fair use doctrine and courts normally place a small emphasis on it compared to the other three factors.
3) How much of the original content are you planning to incorporate into your video?
The amount of copyrighted content you use in your work is also considered. Although there is not a specific guideline as to the amount of someone else’s work you can use, borrowing smaller pieces from the original work is more likely to be considered fair than using the entire thing. There is one major exception to this rule: if the smaller portions you use are considered the “heart” of the original work, that is unlikely to be considered fair use. Avoid adding excerpts from the original piece that embody the creator’s intended purpose. Limit your use to only taking excerpts that are necessary to create your own original message.
4) Will your video serve as a substitute for the original one?
The most important factor courts take into consideration when determining fair use is the effect of your use upon the potential market for the copyrighted work. If your content will take away revenue or views from the original work, it will likely not be covered by fair use. Additionally, your content should not occupy the same market that the original creator is looking to benefit from. Similarly, if occupying the same market inhibits the original creator’s ability to profit from his or her work, your content will probably not be covered under fair use. However, an exception to this rule is if you are creating a parody.
Best Practices to Avoid Violating Fair Use
Now that you understand the different factors of fair use, here are some strategies you can incorporate to ensure your content is not in violation:
- Be Original. Make sure your content is not a carbon-copy of the copyrighted content you are pulling from. Use your creativity to produce an entirely new and original message.
- Don’t look to make a profit off of content you do not own. If you are using someone else’s work without permission, educational or non-profit use is probably your best bet.
- Limit yourself to the amount of copyrighted material you add to your content. Use shorter excerpts that will accent your original message, not center your work around it. Your video should be predominately your work, not someone else’s.
- Reverse roles. If you choose to use someone else’s protected work, put yourself in their shoes. If you realize that your work is so similar that it would steal views or revenue from the original owner, you should take your content in a different direction.
If you have any questions regarding the basics fair use and your content, our Digital Rights team is here to help. You can contact them here. However, it is important to note that they can only provide basic guidance. If you are looking for actual legal advice, please contact a lawyer.
***DISCLAIMER: NOTHING IN THIS POST IS MEANT TO CONSTITUTE LEGAL ADVICE OF ANY KIND. TO OBTAIN LEGAL ADVICE, PLEASE CONTACT A LOCAL ATTORNEY WHO CAN COUNSEL YOU ACCORDINGLY***