- There's a fly flying around, hm!
I hope you guys can't hear it.
It's pretty annoying.
Okay, anyway, do you wanna use somebody else's music,
photos, video clips, and let's say your YouTube channel,
a podcast, blog, or other content,
but you're worried about, I don't know,
maybe getting a copyright strike from YouTube,
having your account suspended,
or completely removed,
or worse, getting an actual legal trouble,
like an actual lawsuit against you?
Then, keep watching,
because we're gonna break down fair use
and how you can use somebody else's copyrighted works
in your YouTube videos, podcasts,
blogs, websites, other content,
without getting into legal trouble.
(lively music)
Hi everyone, I'm Attorney Aiden Durham
with 180 Law Co. in Colorado.
And welcome back to All Up In Yo' Business.
I've made a few videos where I talked about copyrights.
I did one recently about legal issues
that have to do with launching a podcast.
And I've talked about copyrights quite a bit.
In those videos,
I usually, briefly, mentioned fair use
because fair use is a legitimate way
to use the work of somebody else in your content.
But I've never really gone into a lot of detail about it
because, quite frankly, it's pretty complicated.
But that's exactly what we're gonna do today.
I'm gonna give you guys a breakdown
of what fair use is, and how it works,
and how you might be able to use fair use for yourself
to avoid potential copyright infringement
or copyright strikes with your content.
Before we get into all that,
don't forget to like, subscribe, and share,
and check the description for links
to additional information and resources.
All right, so, just a little bit of basics,
when it comes to copyright law,
if you want to use
the work of somebody else,
whether it be a photo,
a video clip of a movie,
a portion of a song,
if you wanna use somebody else's work,
you need authorization to do it.
In most instances,
that authorization comes in the form of a license.
We might purchase a license to use a photo on a website,
or purchase a license to use a portion of a song
or an entire song,
or we might have a license under Creative Commons.
But what if a license isn't available?
What if you wanna use something
and there's just no way to get a license?
Maybe, you reach out to the owner
or the creator of the work,
you don't hear anything back.
Can you still use that stuff?
Of course, it depends.
And that's where fair use comes into play,
federal law, the Copyright Act of 1976.
It grants a bunch of rights to copyright holders,
the creators or authors or owners of copyright in a work.
But those rights come with some limitations.
And the fair use doctrine is one of those limitations.
It's really one of the most significant ways
that we can be permitted
to use copyrighted works of somebody else
without a license or actual authorization to do so.
But the difficult part is that these laws
don't really give us specific criteria
of what is and isn't considered fair use.
Instead, it just kind of gives us
some guidelines to go off of.
I think it helps to understand the purpose of fair use,
why it exists in the first place.
The primary rationale behind the fair use doctrine
has to do with kind of advancing society's interests
in arts and creativity
while still preserving the rights of a copyright holder.
And so, that's kind of what fair use is based off of.
So, this law, the Copyright Act,
it gives us kind of a list of situations or purposes
where something might be considered fair use,
things like criticism, commentary, news reporting,
teaching, research, scholarship.
When used in those contexts,
fair use might apply.
That's not an exhaustive list of situations
where we see fair use,
but those are really kind of the more common ones
and the ones that are specifically stated in that law.
There are also a handful of factors that a court will use
to determine if use is considered fair use, those
are the purpose and character of the use,
the nature of the copyrighted work,
how much of the work is used,
and the overall effect
that that use might have on the marketplace,
or value of the copyrighted work.
Don't worry, if that all sounds a little confusing,
I'm about to get more into it.
So, when it comes to that first factor,
purpose and character of the use,
there are two things that we're gonna want to ask ourselves.
Number one is whether this use is of commercial use
or whether it's transformative use.
So, non-commercial uses are typically gonna weigh
more likely in favor of fair use versus commercial use.
Now, that's not to say
that just because you're using something in a commercial way
that it's not fair use,
but if it's non-commercial,
then, the likelihood that it would be fair use
is a little bit higher.
But then, of course, the question comes up.
What does commercial use mean?
Basically, it comes down to if you're profiting off of it
in some way,
then, it's considered commercial.
It doesn't have to involve a direct financial gain.
It might be considered commercial use
just because it makes it so that other people
don't have to actually purchase the original work.
If they see your work using that original work
and no longer need to purchase the original work,
then that might mean it's a commercial use.
Same goes for if it's intended to induce
someone to purchase something else.
So, if there's some gain, some profit from it,
or if it would cause people to no longer
seek out that original work,
then, it's most likely gonna be considered commercial use.
And if it's a commercial use,
then that might lend itself to being not fair use.
Now, again, this is just one factor.
Even if it is commercial use,
it could still be considered fair use
depending on, of course, all the other factors.
The other relevant question
is whether the use is transformative.
Again, what does transformative mean?
We generally consider it to be transformative
if it adds something new to the copyrighted original work,
or if it has a different function or character or purpose
than the original work did.
So, using somebody else's copyrighted work
might be considered transformative,
and, therefore, fair use if it modifies the work itself,
or if it uses it in a different context,
like for commentary, or parody,
or, again, if it has a different purpose or function
than the original work.
And the more transformative that is, then more likely
it would be considered fair use.
There are a couple of really interesting cases,
all stemming from the same person actually,
that kind of helped to demonstrate
what transformative and not transformative use looks like.
In 2006, a person named Koons, an artist,
used a black and white photo of another photographer
to create a sculpture of that photograph.
The sculpture was in color,
whereas the photo was black and white,
and there were some minor alterations to the sculpture,
as it relates to the photo.
So, basically, this person was creating this photo,
but in sculpture form with a couple different tweaks.
What do you guys think?
Do you think that's transformative?
Is that considered fair use?
Well, the court did not think so.
They said that turning this photo
into a three-dimensional sculpture
isn't considered fair use,
even though the artist, Koons,
he also said that there was some parody,
or commentary behind it too.
But, still, that wasn't good enough.
In that case, the court told us that this new work,
the new purpose of it, wasn't sufficiently evident.
And it was unclear that a new creative work
had been produced.
But then, a few years later, that same artist, Koons,
he created a painting that included
the legs and feet of different people,
including a pair of legs and feet
that were cropped out from somebody else's photograph.
How about this?
Do we think that's transformative and fair use?
Well, the court thought so too.
Yep, they said that using that portion of the photograph
was transformative enough.
The original photo had been used for like a cosmetics ad,
something like that,
something in a lifestyle fashion magazine.
And the purpose of that original work
was to demonstrate the, like, metallic cosmetics
of this company.
Whereas the artist who created the new work, Koons,
that new work only used a portion of the photo,
the legs and feet.
And it showed the image in an entirely different context
than how it was originally.
The court also saw it as kind of a commentary on society.
So, that's a good example of how fair use
isn't an easy thing to determine if it applies.
So, that covers the purpose and character of the use.
Now, let's get into the nature
of the copyrighted work itself,
which is the second factor that a court will look at.
So, the nature of the copyrighted work,
this looks into whether the original work
is creative versus factual,
or published versus unpublished.
So, instead of focusing on the new work,
we're thinking about the original work.
The more creative a work is versus maybe being factual,
if it's more creative,
then, the copyright protections might be a bit stronger.
Whereas if it's more of a factual work,
copyright isn't necessarily trying to protect ideas.
Copyrights protect creative expression.
So, if there's limited creativity in the original work,
then, the copyright protection
is gonna be a little limited.
And then, published versus unpublished,
the thought here is that if the author,
the creator of the original work,
has already published the work,
put it out there,
then, they're already wanting to exploit it
to an extent for commercial purposes.
And so, it's more likely, with a published work,
that it would lean towards fair use
versus an unpublished work,
which by its nature,
if the creator or author didn't publish it,
they might not have wanted it out there.
And so, if we're using it now in our own creation,
or in our own content,
then, that may not be fair use.
But, again, just because it's already been published,
doesn't mean it's automatically fair use.
And on the flip side,
just because it's unpublished,
that alone doesn't mean it's not fair use.
Again, it's just one factor
that they might take into account.
The third factor that we wanna focus on
is the amount or substantiality
of the portion of the work that was used.
Now, I think this is where the whole idea
of you can use a certain amount,
a certain time limit of like a song or a movie
without copyright issues.
For the record, that's not really a thing.
There is no set rule
that says you can use three seconds of a song,
or you can use 10 seconds of a movie,
and it's not copyright infringement,
or it's considered fair use.
That doesn't exist.
But that concept of how much of the work were using
is a real thing.
The biggest part of it, though,
is using only as much as necessary.
So, let's say you're, you know,
we're trying to follow fair use,
we wanna make sure we're doing commentary,
or a criticism, or parody.
Let's say I'm making a parody video of, I don't know,
something on TV.
I wanna do a parody of some show.
And in that, I'm gonna use a clip of the show.
That doesn't mean I can just use
the entire episode of the show.
Fair use is only going to apply if I'm using
only as much as I need to get my point across,
or to get that parody across.
So, it's not a blanket of if I'm making some kind of parody,
or commentary, or news reporting video,
I can use whatever content I want to.
I can only use as much as I need to or reasonably should use
for my new work.
And this is gonna take into account
the quantity of the work that you're using
as well as the quality of the work.
So, let's say we're gonna use 10 seconds of a movie
in our YouTube video.
We're gonna comment on it or do a reaction or something.
We're gonna use 10 seconds of a movie.
All right, 10 seconds, that might be okay.
But if that 10 seconds is a clip of the climax of the movie,
if it's the Shyamalan twist that we're using,
and we're giving that away,
that portion that we're using
may not be considered a reasonable use
and qualify under the fair use doctrine.
Because to an extent, now, we're kind of competing
with the movie itself.
If we're giving away the big reveal,
or giving away the main point of this movie,
that's an inappropriate use of the heart of the work.
On the flip side, though,
let's say we wanna crop out some portion of a photo
that somebody else has taken.
If we're cropping out some very random portion
of that photo that's totally out of context
of the giant overall photo,
that might be fair use.
Let's say it's a portrait of somebody standing in the woods
and we take a cropping of a tree in the background.
The original work's main purpose
didn't have anything to do with that tree.
It was probably the person whose portrait is in it.
And so, the fact that we're taking
this kind of minor aspect of the photo
and using it in our own work,
that might go towards fair use.
And then, lastly, we're gonna focus
on the effect that this might have on the market
for that original work.
If we're producing something that incorporates
the work of somebody else,
and by doing so, people might buy our thing
instead of that original thing,
that's not gonna be in our favor
when it comes to fair use.
If it's gonna harm the original creator,
or take away potential profits from the original creator.
Fair use doesn't want to allow us to do that.
Of course, it's always best to play on the safe side
and get a license,
get actual authorization whenever you can.
Because relying on fair use
can be kind of dangerous.
Because we never really know for sure.
The only way to know for sure
if we're allowed to use this work
in a YouTube video, in a podcast, in a movie,
in a book, in anything, is with actual authorization.
Fair use, in my opinion, should be kind of a default
if that license or that actual authorization
isn't an option.
And for what it's worth,
because this question came up from a one of my clients,
I thought it was really interesting,
if we ask for a license
and the person tells us no,
or maybe doesn't respond, but we think it's fair use,
the fact that we asked for that permission,
or that license, and didn't get it,
that isn't going to damage a potential argument of fair use.
So, if we think it might be fair use,
but we wanna just play it safe,
but we don't get that license,
we could still rely on fair use
without the fact that we were denied,
affecting our ability to assert fair use.
So, when it comes to fair use, again,
I mean, as you can tell,
it's pretty complicated.
The main things that we wanna focus on
are how we're using the work.
If we're doing commentary,
or news reporting, or educational,
those situations are more likely to be in fair use,
assuming the other factors are in line with it too.
If we're not giving away the heart of the work,
if we're not using the entire work versus, you know,
maybe just a little portion of it,
all of these different things are kind of come into play.
Now, I know this may not be as practically helpful
as some of you are hoping for, I'm not telling you
here's what you need to do.
I like to give you guys kind of a general understanding
of how these things work.
But if you want more of a, like, how-to fair use,
I suggest checking out Ian Corzine's videos,
I'll link to a few of them in the description.
He creates a lot of content
about fair use, copyright on YouTube,
YouTube strikes, all that stuff.
And he does a really good job of breaking down
more of the how-to of fair use.
So, I suggest checking him out.
That's all for this episode, folks.
Drop a comment below.
Let me know what you think.
And, again, don't forget to check the description
for links to additional information and resources.
Thank you all so much for watching.
I'm Aiden Durham and I'll see you next time.
(upbeat music)