Fair Use of Intellectual Property in YouTube Videos
When a YouTube video features the protected intellectual property of another person, it implies that the video’s author exercised several rights that have been exclusively reserved for the intellectual property owner to exercise.
The inclusion of copyrighted music or video content in a video strongly suggests that the author made a copy of the copyrighted content, spliced it into their own video, and uploaded the final video to their YouTube channel for other users to access and view. The YouTube author has arguably engaged in copyright infringement during this process.
Copyright Law in General
Under federal law, copyright infringement occurs when a person exercises one of the rights protected under copyright ownership to an original work of authorship fixed in a tangible medium of expression.
In general, federal law grants exclusive rights to copyright owners regarding their copyrighted works:
- Reproduction: Only copyright owners can “copy” or reproduce their copyrighted works. The act of “copying” a copyrighted work can be as simple as digitally copying and pasting the words of a copyrighted text or the code of digital media file.
- Performance: Only copyrighted owners can perform a choreographed dance, musical work, or performance art piece to which they acquired copyright protection.
- Broadcast: Only the owner of copyrighted material can transmit it for consumption by a wide audience.
- Create derivative works: Copyright owners have the exclusive right to produce new works that derive from their copyrighted work (e.g., book or movie sequels).
However, many YouTube channels claim that their use of copyrighted content does not constitute infringement because it qualifies as “fair use.”
What Is Fair use?
Under Section 107 of the federal Copyright Act, the subsequent use of copyrighted works qualifies as “fair use” and therefore does not constitute infringement if done for the following purposes:
- News reporting
So, are the authors of YouTube videos able to deny infringement by simply claiming fair use? Not necessarily. Section 107 of the Copyright Act also lists factors that a court must consider when determining whether something qualifies as fair use, including:
- The “purpose and character of the use” (e.g., whether the copyrighted material was used for profit or not)
- The “nature of the copyrighted work” (e.g., whether the copyrighted work was intended to financially benefit the owner or not)
- The “amount and substantiality” of the use relative to the entirety of the copyrighted work (e.g., a sound bite versus a seven-minute scene from an entire movie)
- The “effect of the use” on the market value of the copyrighted work (i.e., would audiences watch the YouTuber’s video instead of paying to consume the original content?)
Many YouTube videos include snippets of copyrighted content in their videos for criticism or comment. A significant portion of YouTube channels are dedicated to reviewing, criticizing, and speculating about, film and television works. For the most part, most viewers click on such videos to hear what the author has to say about the original work, rather than substituting the video for the experience of watching the original work.
However, videos known as “reaction videos” often contain most—if not the entirety—of a copyrighted work. For example, “trailer reaction videos” typically include the entire trailer for a movie while the YouTuber watches it. These videos focus on the emotional reactions that the YouTuber has as they watch the trailer for the first time.
In this case, the reaction video still has a good chance of qualifying as fair use because a movie trailer serves as promotional material by nature, and reaction videos only boost the promotability of the movie by expanding the trailer’s viewership.
However, other videos are less likely to qualify as fair use. For instance, “lyrics videos” typically contain an entire song as the video displays the lyrics synchronized with the song’s progression. It would be a stretch to call these videos “criticism” or “commentary” because the author offers no original perspective on the original work. The author of a lyrics video might have a better chance of characterizing as a “teaching” video. However, many YouTube users can create “playlists”—a compilation of several videos that automatically play in sequence—made entirely of songs from a musician’s album, instead of paying for the record itself. This fact hurts the argument that lyrics videos are protected under the fair use doctrine.
For the most part, YouTube videos do rely on the noninfringing fair use of copyrighted content. This allows consumers of such content to engage with artists, authors, and audiences to express new ideas inspired by original works. However, when YouTube content contributes no new ideas to copyrighted material and threatens its marketability, the original author has a better chance of claiming infringement.
Consult Scaringi Law to Learn More
Scaringi Law is a full-service law firm that represents people in a variety of legal issues, including copyright matters. We are here to protect your legal rights and promote your interests by finding effective legal solutions to your case.
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