Fair Use and #WTFU on Youtube

(Disclaimer: I am not a lawyer. The following views are my opinions based on my understanding of copyright law in the United States, and should not in any way be construed as legal advice. If you need legal advice, consult with an attorney.)

Today I’m going to talk about fair use. There has been a considerable amount of controversy due to what seems to be misuse of the copyright system on Youtube over the years, with many creators claiming fair use in their work and the copyright holders often disagreeing. Fair use is a legal doctrine in the United States written into the copyright code to allow for certain specific use of copyrighted works, specifically “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”(1). It is important to understand that fair use is not an automatic protection: it is a potential legal defense. Whether fair use applies can only be determined and decided in court. It is decided based on the following four criteria, with some factors given more weight than others: (Again, these explanations are based on my reading of copyright law and should not be construed as legal advice.)

1. “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;” (2)

Nonprofit educational works are generally favored over commercial uses, although if your work firmly falls into a specific category of fair use, such as parody, you may be able to profit off of it regardless. An example of this is Weird Al Yankovic who has been releasing parody albums for years. This is because the work is transformative, which makes a major difference. If you transform a copyrighted work into something new and different, especially if through doing so you express commentary, critique, or the other types of commonly accepted fair use, this makes it more likely it will be considered fair use. (2)

2. “the nature of the copyrighted work;” (2)

Whether the work has been published or not is given weight here, as the copyright holder is considered to have the right to “first publication”. Courts tend to give greater protection to creative works such as art, music, poetry, and other similar types of artistic expression.

3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” (2)

Although the law does not set exact limits, it’s generally accepted that the more of a work you use, the less likely it’s fair use. It is viewed in relation to the totality of the work, as well as how much is needed to serve the purpose of utilizing said work. Courts have, in the past, ruled that even a small amount of work used can be excessive, depending on how it’s used and the nature of the original work.

and

4. “the effect of the use upon the potential market for or value of the copyrighted work.”(2)

This has a couple parts to it. The first is that the court will consider whether the person claiming fair use could realistically be able to purchase or license the copyrighted work. If they could have done so, this will weigh against their fair use claim. The main part of this is whether your work can and/or will affect the potential market of the original copyright holder. Basically, does your work present a close enough alternative to take away from their ability to profit from their copyrighted work or in some other way damage their ability to profit off said work? If so, it is unlikely to be considered fair use, as it creates a direct competition.

There are certain steps which may, based on my understanding of fair use, help to prevent copyright claims. (Again: this should not in any way be considered legal advice. It is my non-legal opinion based on my reading of copyright law and what I’ve seen Youtubers experience.)

1. Attempt to contact the copyright holder and ask permission. With many industries this won’t be an option, but when it comes to gaming most companies have put their let’s play and monetization policy online. Having permission, whether through a blanket statement or directly from a representative for the company, makes all the difference. Even if you don’t expect an answer, you should at least make the attempt.

2. Be sure that you are utilizing commentary, critique, and other generally accepted types of fair use. There are many ways to do this. Each copyrighted work has a number of things which can be studied and discussed, and the more transformative the work, the more likely it will be considered fair use.

3. Remove all copyrighted music by turning it off. It’s not commonly understood that a video can be claimed based on copyrighted music, and even if you are using everything else in the work in a manner otherwise within fair use, if you aren’t also taking steps to follow fair use doctrine when it comes to the copyrighted music, that it will not be considered as such, and thus will be considered infringement.

4. Add in your own music, whether an original work, a Creative Commons work, something in the public domain, or any other work which you have the legal right to use. This is very beneficial to the claim of fair use, because you are effectively scoring the work, which can be deeply transformative.

5. Don’t remain silent for long periods of time with only the copyrighted work displayed. This is the opposite of transformative. Remember: a big part of fair use is how transformative the work is. Reaction videos on Youtube are a popular format wherein the content creator places video of themselves in the corner of another, often more popular video, and reacts to it. Reaction videos which show the entirety of a copyrighted work are unlikely to be considered fair use for a number of reasons, with the two biggest being they’re often not very transformative, and because they present a serious competition to the original work as there is no point in watching the original when viewers can watch the reaction and get both videos at the same time.

These steps may help avoid copyright claims against your work, especially if you have permission, but it’s important to understand that a company could still claim your work is infringement and your only recourse would be to either take your work down or to respond with a counter-notification saying “this is fair use.” at which point the copyright holder has a set amount of time to either sue you or drop the whole thing. While it’s necessary to note that companies will generally avoid this, both due to the negative p.r. of a large corporation suing a small content creator and because they are, in my opinion, afraid of setting a legal precedent which will take the power out of the hands of Youtube and the companies who have unimpeded and unchecked access to the copyright takedown system and put it into the hands of an independent third party.

So, what can be done about this? Well, as I said above, I think that legal precedent would go a long way towards motivating companies not to make copyright claims unless they make sure it is unlikely to fall under fair use. There was a major ruling in 2015 by the United States Court of Appeals for the Ninth Circuit to affirm a 2008 ruling regarding a takedown notice against a video of a baby dancing with the music of Prince playing in the background. This case, Lenz V. Universal Music Corp., was decided to be fair use. (3) An important part of the ruling is the court stating that copyright holders must consider fair use in good faith before filing any takedown notice. Rulings like this set a legal precedent which heavily factors into future rulings on the same subject. It was necessary for the person who uploaded the video to fight the claim in court in order to set this precedent, which is obviously a considerable decision when one is up against huge corporations with a legal team on retainer.

This, in my opinion, is what we need to see more of, but obviously the average content creator on Youtube is not likely to have the resources to hire a lawyer. One possible solution is for copyright lawyers who feel strongly about this to take these cases pro bono. Another is for large Youtubers to be willing to fight these claims directly in order to motivate companies not to make claims which could be considered spurious. Currently, most big Youtube content creators are represented by Multi-Channel Networks who negotiate directly with companies to settle these matters, which again I find problematic because it is another example of corporations making decisions behind closed doors seemingly motivated solely by the desire to keep business going and not make waves. Fair use is up to courts to decide: not corporations behind closed doors.

Sources:
(1) https://www.law.cornell.edu/uscode/text/17/107
(2) https://copyright.columbia.edu/basics/fair-use.html
(3) https://www.eff.org/cases/lenz-v-universal