Fair Use and YouTube - A Creator’s Take

Scott Hervey, Weintraub TobinRian Bosak, Fullscreen

What is a Copyright?• Protection granted to original work of

authorship fixed in a tangible medium• Articles, programs, web pages, multi-media, music

• No protection of functional aspects• Exclusive right to reproduce, derivative works,

copy, perform, display, transmit • Generally lasts for life of author plus 70 years• Timely registration allows attorney’s fee recovery,

statutory damages, etc.

Fair Use in 5 Minutes▪Fair Use is a defense to an infringement claim;

▪Fair Use is not automatic; it is determined based on the facts at hand

▪Fair Use is a balancing test of the following four factors:

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational 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; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work.

1)Purpose and Character of the Use

A. Does the new work add something new, with a further purpose or different character.

B. Does the new work alter the first with a new expression, new meaning, or new message.

C. Is the new work merely a replacement of the original work.

If a work is like the first two points and not like the third, the work is “transformative.” The transformative nature of a work has become the most important element in determining fair use. If the work is not transformative, it’s likely not fair use.

Works Whose Purpose & Character Favor Fair Use

• A parody is transformative. It provides social benefit, by shedding light on an earlier work, and, in the process, creating a new one.

• News reporting favors fair use. New reporting can be transformative (although the reporter does not need to transform the original work to rely on the news reporting privilege).

• Teaching material favors fair use. This applies to persons or entities when they engage in instructional, research, or scholarly activities for educational purposes.

So What is a Parody?● A work that imitates a work for comic effect or ridicule. ● For the purposes of copyright law, a claim of parody relies

on the new work commenting in some way on the original work.

● If, on the contrary, the commentary has no critical bearing on the original work, there is no parody. A court may find that the alleged infringer merely used the original work to get attention or to avoid the drudgery in working up something fresh.

2) Nature of the Work• Some works are closer to the core of copyright protection than

others, with the consequence that fair use is more difficult to establish when the former works are copied.

• In the digital media space, any third party work used - video clips, images, music - would be of the type that is closer to the core of copyright protection.

3) The Amount/Substance of Work Taken• How much of the original work is used?

• Is the quantity and value of the materials used reasonable in relation to the purpose of the copying.?

• Still, a parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable.

• This is not, of course, to say that anyone who calls himself a parodist can use all or the best parts of a work and get away with it. In parody, context is everything and the question of fairness asks what else the parodist did besides go to the heart of the original.

4) Market Effect / Value Diminution• When the second use is transformative, the new work does not act

as a substitute for the original work. This is so because the transformative work and the original usually serve different market functions.

• A lethal transformative use, like a scathing theater review, may kill demand for the original work but it does not produce a harm cognizable under the Copyright Act

Equals Three, LLC v. Jukin MediaDetermining fair use still isn’t easy:● The episodes (except Sheep to Balls) are highly transformative and use of

Jukin’s videos only what is reasonably necessary to achieve their transformative purpose. The first and third factors thus strongly favor fair use. There is no proof of cognizable harm to any actual or potential market, and thus the fourth factor favors neither party. Moreover, though the second factor weighs against fair use, it is of little weight in light of Equals Three’s episodes transformativeness. Thus, on balance, the factors weigh in favor of fair use for all episodes except Sheep to Balls.

● However the jury came back with a unanimous 'no' on each count, no fair use. A juror told the Hollywood Reporter “We just didn’t feel that the videos were transformative enough to count for fair use.”

Top Fair Use Misconceptions 1. But I only used 5 seconds of music/video (may not be

fair use by could be de minimis);2. It was on the Internet/YouTube and everything on it is in

the public domain;3. It didn’t have ©4. I can’t get sued because it’s fair use;5. Fair use is too difficult and confusing; and6. Adding “no copyright/infringement intended” in

description field will protect you.

Fair Use or Not? – Her Trailer Parody

Fair Use or Not? – Goat Edition

Fair Use or Not? – Dunkin’ LoveI been craving I been cravingI been hungryI been thinking why can’t I have you on the west coastBaby I want you right nowCoffee on ice feel like an animal when I smell it on the grillCan’t take my eyes off that sausage pattyDunkin loveI walked into the kitchen, saying hell no I’m not cooking this shitI want dunkin love, open all nightBest thing I remember about the east coast was waking upOpen all night, loveEverything all rightNo complaints because I heard dunkinI’m running in for that bacon egg cheeseDrinkin eatin drive through in my accordCooler on my tongueServin all those old fashionedsLast thingI been sipping on this coffeeI been sipping coolataCan’t take my eyes off that sausage patty I want you

Fair Use or Not? - Buffy vs. Edward

The Special Challenges With MusicMusic has many special challenges due to special nature of ownership rights in music. Some uses that may likely not fit into fair use are:● “Parody” videos● Cover videos● Dance videos● Live performances

What Can Happen if I Use Unlicensed Content?

Even unintended infringement can cause havoc on your YouTube account.● Content ID Claims = Monetization Loss.● Global Blocks = Monetization Suspension.● Strikes (DMCA Takedowns) = Channel Loss.

When Should I Care?While copyright infringement is never ok, not all YouTube claims are created equal:● Address WW Block Claims.● Address Copyright Strikes (DMCA Takedowns).● TOS/TOU/Thumbnail strikes can also cause

monetization suspension. Deal with these.● DO NOT DELETE YOUR VIDEOS BEFORE

RESOLVING CLAIMS.

What is the Claim Process on YT?1. Dispute a claim (creator at any time);2. Review and decide (rights holder within 21 days);3. Appeal reinstated claim (creator at any time);4. Review and decide (rights holder within 21 days);5. Counter-notify DMCA takedown (creator within 21

days);6. File Complaint in Federal Court to uphold DMCA;

takedown (rights holder within 21 days).

Closing Points to Remember

● Fair use is a defense only to a copyright claim;● Always consider the 4 fair use factors;● If in doubt, seek legal advice;● If still in doubt, get a license prior to upload;● CID/FB Rights Manager doesn’t discriminate;● Don’t risk your channel/earnings potential.

Thank You!!!

When Can Fair Use Help Me?

● News – Use of a work in the form of reporting can be fair use.

● Commentary – Use of a work as display of proof in social commentary can be fair use.

● Transformative – Use of a work to create a new work that is different in purpose and meaning than the original can be fair use.

● Educational – Use of a work for educational purposes can be fair use.