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What is fair use – and what isn’t

  • 7 mins to read

What is fair use – and what isn’t

Please note: This article should not be interpreted as legal advice, nor should it be interpreted as creating any kind of attorney-client or legal advisor relationship. You should not rely upon the legal information or opinions provided, and you should consult with your personal legal advisor. You are solely responsible for any legal decisions or actions you take or omissions you commit.

As a YouTuber, you may have heard talk about the concept of fair use. The fair use doctrine is a set of guidelines in Title 17, Section 107 of the United States Code (U.S. copyright law) that allows people to use other people’s copyrighted, original works in certain cases without worrying that they’re infringing on the content owner’s copyright.

Common examples of fair use include:

  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship
  • Research

FOUR FACTORS FOR FAIR — USE

Copyrighted works can be anything from songs to video clips to screenshots of video games. If you’re thinking about using someone else’s original copyrighted work in your own video, you need to consider four factors to evaluate whether your plans might constitute fair use:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit education purposes
    • Have you taken the copyrighted work and transformed it or added value to it by your use of new expressions, meanings, insights, or understandings? (If so, that’s a good thing.)
    • Why do you want to someone else’s copyrighted work?
      • Is it to illustrate a point for educational purposes? To report on something going on in the world? (If so, good!)
      • Or are you doing so for entertainment purposes? (If so, tread carefully.)
    • Are you intending to make money off of that copyrighted work yourself? (If so, again be careful.)
  2. The nature of the copyrighted work
    • Is the copyrighted work fictional or nonfictional?
    • Is the copyrighted work published or unpublished?
    • Did the author of the original copyrighted work indicate that his / her original work fell under a Creative Commons license or was public domain? (This may give you more freedom to reuse the work.)
    • Did the author of the original copyrighted work extend a license for others to use that work in a commercial or noncommercial setting? (Likewise, this may give you more wiggle room.)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    • How much of the original copyrighted work do you want to use? The entire thing? Or just a portion? If so, how big a portion? (Smaller portions are generally safer.)
    • What portion of the value of your work will stem from the original copyrighted work vs. your new work? (The more value you bring, the better.)
  4. The effect of the use upon the potential market for, or value of, the copyrighted work
    • Does the way you plan to use the copyrighted work detract from the ability of the copyrighted work to perform or earn money for the copyright owner? (If so, that’s a problem.)
    • Does it detract from the copyright owner’s ability to track the performance of the original copyrighted work or use it in other ways? (Again, that’s a problem.)

IMPLICATIONS FOR VIDEO CREATORS

What does all this mean for video creators? At Fullscreen, we protect our creators’ content to make sure other people don’t re-upload it and profit from it. So we sometimes put claims on videos that we’re protecting. And we often receive disputes on those claims from people who claim they’ve re-uploaded Fullscreeners’ content under fair use.

If someone else has re-uploaded your original content and claimed fair use, we consider some of the following questions:

  • Did the uploader use your content in a way that abides by the four factors for fair use outlined above?
  • Has the uploader disabled monetization on the video they made using your content?
  • Is the content within the ‘News and Politics’, ‘Education’, or ‘Nonprofits and Activism’ categories on YouTube?

Every situation is different. But generally, if the answer to all three questions is ‘yes’, we’re more likely to determine that the other person’s using your content under fair use.

So ask yourself these questions, and keep the four factors of fair use in mind if you’re ever thinking of using someone else’s original copyrighted work. Again, these aren’t firm guideposts, but you can use them as a reference when considering whether you have a valid fair use argument.

Good luck!

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