One of the most frequently asked questions I get about my videos is...
Wayne (Wayne's World) "A sphincter says what?"
"How much you have to pay to use the clips that you use?"
like this one...
Krusty (The Simpsons) "What the hell was that?"
and this one...
Arnold (Diff'rent Strokes): "Whatcha talkin bout Willis?"
And to that, I answer...
nothing...except for the time it takes me to find them and edit them.
And, of course, the follow-up question is usually, "How do you get away with that?"
Dean Simmons (The House Bunny): "uuuuuuuuuuuuuuuuuuuuuuuuuhm?"
So today, I'm going to talk about the idea of Fair Use, a concept that's sort
of fuzzy and, seeing that I'm not a lawyer or an expert on these matters,
I'm going to relate it back to what I'm doing as well as what some others are
doing and try to give you as clear of a picture as I possibly can in these next
five minutes on how we can get away with using others intellectual property in
our original works.
Nacho (Nacho Libre) "I'm not listening to you, you're crazy!"
My name is Tara and this is ...Truly Social.
According to YouTube, Fair Use is a legal doctrine that says you can reuse
copyright protected material under certain circumstances without getting
permission from the copyright owner. Now Fair Use the US legal term. In Canada,
where I live, as well as many other Commonwealth countries, the term is Fair
Dealing. The Fair Dealing clauses of the Canadian Copyright Act allow creators to
reuse copyrighted material without permission related to research, private
study, education, parody, satire, criticism, review, or news reporting.
Deadpool (Deadpool Game) "It's so boooooorrrrrring."
There are six principal criteria for evaluating whether something falls
under the Fair Dealing clauses: Number one...
The purpose of the dealing...or in other words, how it's being used for MY benefit.
Ray (Field of Dreams): "What's in it for me?"
In my case, my videos would be considered under the education
category, not commercial.
I'm not making money from reselling the clips. Yes, I monetize the videos but I
don't sell them directly.
Number two. The character of the dealing... or how widely it's being distributed.
Lockheed Eggcraft Factory (Loony Tunes) (Factory music)
This is fuzzy as my videos on YouTube, but, in general, I still have a relatively
small audience. If I was a huge brand, I may have some more concerns.
Basically, the bigger the distribution (and profit from that distribution), the
more likely it falls outside of Fair Dealing.
Number three. The amount of the dealing... or how MUCH of the original work I'm using...
Waiter (Monty Python's Meaning of Life): "Sir, it's only a tiny, little thin one."
Well, because I only use small clips usually only about 1-3 seconds for each one,
I should be ok. Some rules of thumb say less than 10% of the original work,
and I fall way under that.
Number four. Alternatives to the dealing...or could I be using non-copyrighted material instead?
Michael (The Office): "Indubitably."
Could i have used other sources that were not copyrighted? Maybe.
But I could argue that the familiarity of pop culture clips work the best in my
case. I use clips to add colour commentary to my lessons, and they wouldn't really
have the same impact if I also had to explain them.
Number five. The nature of the work...or whether or not it was previously
published. So I interpret this one a little bit differently than the criteria was intended.
Spongebob (Spongebob Square Pants) "Well...good luck with that!"
I very rarely use material created by independents,
and mostly use material that is commonly known. So the
original intent of this criteria was to protect published or confidential
material and I, instead, think of it as republishing ideas that already kind of
in the public domain...even if legally they're not really in the public domain.
Jack Sparrow (Pirates of the Caribbean): "You just keep telling yourself that, darling."
And finally, number six. The effect of dealing on the original work...
...or by using it, am I taking money out of the original creator's pocket?
Rod Tidwell (Jerry McGuire): "Show me the money!"
This one is key. Could a court prove that I am negatively
affecting the market of the original work?
I think I can prove the opposite. By using clips from movies and TV shows,
I actually promote the works to my audience.
Trent (Swingers): “Baby, you’re so money and you don’t even know it,”
I've had people say to me, "I went out and bought that movie because I remembered
how much i love it."
It is also necessary under Fair Dealing AND Fair Use that I credit each clip,
which I do - in both my captions as well as description field on YouTube. I also
indicate where I found the clip (with a link)
...not necessarily to the original work because not all the original works have links.
Cartman (South Park): "Totally lame!"
All that being said, I'm not 100% immune to the possibility of
being nailed for using any of these clips. If one of the copyright holders
were to challenge me, I'd have to defend myself, and likely in court.
Judge R. Woods (Brewster's Millions): "Guilty or not guilty?"
Spike (Brewster's Millions): "Oh guilty, but with a real good excuse!"
This is a risk i choose to take. Also to note: I HAVE had a video challenged.
It was based on music, which now I avoid. But YouTube's copyright review
determined that I WAS within Fair Use.
Kevin (Home Alone): "YES! Yes yes yes yes!"
There are LOTS of examples of remixing, sampling, culture jamming, and
mashups online. You may be familiar with remix artists like Girl Talk and Kutiman,
who create new music out of mashing up existing artists.
If you're a gamer, you may have watched Twitch or other live gaming, which is
stream from inside a copyrighted game world.
You may or may not have come across something called YouTube Poop - video
mashups created by editing pre-existing media sources for humorous confusing or
shocking purposes.
YouTube Poop: Squidward Gets Possessed by a Bad Lemon (Inaudible "loony" sounds)
Channels like Honest Trailers and bad lip (readings) benefit from fair use as do
supercuts, derivative (works), and Vidding, which are also terms you'll hear
in Fair Use circles. The entire topic is incredibly complex and is completely
shaking the foundations of copyright and IP law.
On one hand, we want to protect creators from losing revenue so that they can
make a living and continue creating, and on the other hand, we don't want to limit
emerging creativity by new creators.
But don't listen to me. For a much more in-depth analysis and TRUE legal insight
into this issue,
you should read Lawrence Lessig's book titled "Remix: making art and commerce
thrive in the hybrid economy." And
watch the documentary "RiP! A remix manifesto" by Brett Gaylor (who is also
Canadian). Or follow people like Kirby Ferguson, Cory Doctorow, or Guilda Rastama.
So the answer to, "how do i get away with using the clips?"
(YouTube remix): dramatic sound effect remix “Dun dun dun duuuuuuun!”
We'll see?
Peter Griffith (Family Guy): "Can't touch me!"
Until I get sued...my name is Tara and this has been...Truly Social.