The Complete Guide To Fair Use & YouTube

When it comes to YouTube, copyright law can be a video creator's biggest nightmare. After the jump we debunk some common myths about copyright and fair use, find out what, exactly, fair use is, and talk about how to figure out if you are protected under fair use.

When it comes to YouTube, copyright law can be a video creator’s biggest nightmare.  Can you use footage shot by someone else?  Can you cover or parody a song by a popular artist?  When is it fair use to include copyrighted material in your YouTube video and when is it not?  The lines are often blurred when it comes to fair use and copyright laws, as they pertain to YouTube, can be confusing.  Hopefully this post, our complete guide to fair use and YouTube, will help clear up the confusion a bit.  Read on as we debunk some common myths about copyright and fair use, find out what, exactly, fair use is, and discuss how to figure out if your use of copyrighted material falls under fair use.

Before you read any further it is important to point out that this information should be taken only as general guidance and not legal advice.  If you aren’t sure one hundred percent about how fair use law relates to your specific situation then you should consult a lawyer.  This information is taken from a YouTube talk on fair use, Mashups, Parodies & Lip Dubs: Ask A Legal Expert About Fair Use.  In the video, Anthony Falzone, executive director of the Fair Use Project and associate director Julie Ahrens answer questions about fair use as it relates to YouTube.  You can watch the video at the end of this post.

What is Fair Use?

Anthony Falzone gives a fantastic explanation of what fair use is.  He says, “If you think about copyright as a series of restrictions, fair use is a set of exceptions.  It protects your right to use copyrighted material in certain ways and it’s not a trivial little technicality—it’s a fundamental part of the copyright bargain.  We don’t give copyright owners unlimited control over their content—we preserve a whole variety of uses and things that people get to do with copyrighted content without permission.  And fair use is really, above all else, a set of factors and considerations that help us figure out which things we carve out of the copyright monopoly, and which things we let people do without permission.”

The 4 Questions To Ask

When you are trying to determine whether or not your use of copyrighted material is covered under the fair use doctrine there are four basic questions that you’ll want to ask:

1. What are you doing with the copyrighted content? If you are doing something highly transformative with the content then you will have more room under the fair use doctrine.  You are more likely to be covered if you are saying something quite different from what the original creator was trying to say.

2. What is the nature of the copyrighted content you are using? Use of creative or fictional content (for example, a film or cartoon) is less frequently allowed under fair use than less creative, non-fictional material.

3. How much of the original content are you using? You should be careful to use a reasonable amount.  Just use enough of the copyrighted content as you need to in order to get your point across.

4. Will your work serve as a substitute for the original? If your video will take away views or sales from the original then it is less likely to be covered under fair use.  Additionally, you shouldn’t create work that occupies markets that copyright owners are entitled to exploit.

Before using any copyrighted work, ask yourself these four questions.  If you have good answers for all of them and can justify your use of the content then go ahead.  If you aren’t sure, consult a lawyer.

**A Note On Lawsuits

It is important to note that just because you think your work is protected under the fair use doctrine does not mean that the owner of the copyrighted content cannot sue you.  They may still report you as violating copyright law and try to get your video taken down.  If you are sure that you are in the right under fair use then you can counter their take down notice and try to explain your side and work things out with them to keep your video online.

Common Myths About Fair Use

In YouTube’s CIS Fair Use Q&A video, Julie Ahrens debunks some common myths about fair use.