You purchase YouTube views for your videos and create some shining content, but then, you notice that your video receives a copyright strike or a content ID match. On YouTube, avoiding copyright is a tricky tightrope to walk on, especially when it comes to fair use.
This article will explore YouTube’s complicated copyright system and what constitutes fair use so you don’t end up getting caught up in a copyright claim battle.
YouTube’s Content ID System
If you’ve been on YouTube long enough, you know that the platform has had many copyright controversies, and we must admit, it has gotten better. In the 2020s, you probably won’t see copyright lawsuits over toddlers dancing to Prince music or your entire video being muted altogether because you used ten seconds of copyrighted music. If your video has any copyrighted material, YouTube will put a content ID on it, with the consequences differing depending on who owns the copyright. Some holders will let you use their material with no restrictions, or you share the ad revenue with them. Some will take all the ad revenue or block your video in certain countries. Others will block your video worldwide, meaning no one can watch it.
If your video has content ID in it, YouTube makes it easy to remove the copyrighted part or dispute the copyright claim. In some cases, the person flagging your video for copyright may be a copyright troll, which does happen. Other times, the person may be the real deal, but you have the right to use it under fair use.
What is Fair Use?
Fair use is when you can use copyrighted works in your content without the copyright owner’s permission. In the US, Section 107 of the Copyright Act defines fair use as using copyrighted material “for purposes such as criticism, comment, news reporting, teaching…”
There are many cases on YouTube where someone’s videos may fall under that category. For example, if you’re criticizing a film, you may use clips from the movie for your criticism. If you’re a political commentary channel, you may use copyrighted footage if it’s relevant to the discussion.
This seems straightforward enough, but it’s a controversial subject on YouTube, as what constitutes fair use is a hot topic of debate, with many controversies over the years. One instance is when Doug Walker, best known as the comedic film reviewer The Nostalgia Critic, started a movement called Where’s the Fair Use after facing copyright issues with his reviews, which received much agreement, but also disagreement, with some saying that his videos were not fair use. Not to mention, YouTube is a worldwide platform, which has led to issues between countries where the laws may differ. For example, many YouTubers who review anime (Japanese animation) frequently have their videos taken down from anime studios because Japan’s copyright laws are much stricter.
What’s Considered Fair Use?
One can measure fair use in several ways, as defined by US law, anyway. Let’s break them down.
Purpose
When determining fair use, one factor is the purpose of the use. Is the use for nonprofit reasons or for a commercial nature? This is not to say that people who aren’t making money off the work get a pass to use copyrighted material, nor does it mean that a monetized channel cannot make money if they use copyrighted work. But it plays a part in determining.
The Nature of the Work
If you’re using material from a nonfictional source, you have a stronger argument for fair use, as some may argue that this is information the public should know. Meanwhile, fictional works have more protection from the law because the material comes from a person’s creativity. Again, using fictional works fairly and vice versa is possible, but one is easier than the other.
Amount and Substantiality
How much of the work are you using in your content, and how much of it contributes to your commentary, criticism, etc? Using short clips of a copyrighted work relevant to your criticism is a much stronger case for fair use than streaming the entire work and making remarks over it.
Market Effect
Does using the copyrighted work possibly deprive the copyright holder of sales? For example, going back to the amount argument, if someone was streaming an entire movie and only commentating over that, that may lead to someone not buying the work because they can watch their favorite YouTuber cover it. But once again, this is not a definitive answer. For example, you could make a negative review of a movie and use some clips, and someone may argue that this has a negative market effect. However, there would be a stronger argument for fair use.
Parodies and Fair Use
While not part of the four considerations, we should briefly mention parody. Parody is considered fair use, but there are also factors to consider. What makes parody is when you mimic an original work but use it as a way to add commentary or shine a new perspective on it. This differs from satire, which does not need to use the copyrighted work as much.
Is My Video Fair Use?
If you’re using copyrighted material for your videos, ask yourself if your work is transformative. In other words, do you add enough unique contributions to justify using the copyrighted work? In addition, ask yourself how much you’re using and how relevant it is for your criticism.
Each case will be different, and each copyright holder is different as well. Some are more accepting than others, while some copyright holders will not budge even if you feel like you’re in the right. In some cases, you may need to take them to court, but when it’s you against a big corporation, you may have little choice but to trim out or edit the copyrighted footage you are using. We hope this article has helped shine a little light on the very dark cave that is YouTube and copyright.
