Copyright law may seem pretty straightforward on its face, in that it protects “original works of authorship,” however it leaves many questions unanswered and open to interpretation. When it comes to YouTube, it boils down to whether or not you can use someone else’s work in your video without licensing it.
The safest way to avoid copyright violations when uploading to YouTube is to only use content that you have created yourself. Oftentimes, people don’t realize they are actually violating copyright laws and it is fairly common to see them post something like this in the description:
“I claim no rights to this song/video.”
Is that enough to avoid copyright infringement? Probably not.
This is where copyright law is often misunderstood. The fact that you are disclaiming the rights to the song or video you are uploading does not matter because you never had the right to reproduce a copy of that performance in the first place. According to the U.S. Copyright Act, copyright protection is available for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” More specifically, it gives the copyright owner the exclusive rights to do and to authorize any of the following:
- To reproduce the copyrighted work in copies or phonorecords.
- To prepare derivative works based upon the copyrighted work.
- To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
- In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
- In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
In other words, the right to reproduce or prepare “derivative” works belongs exclusively to the copyright owner, unless done so under the protection of the “fair use” exception.
What is Fair Use?
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright protected works in certain circumstances. Section 107 of the Copyright Act lays out the statutory framework for determining fair use by providing the following four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
These four factors aren’t set in stone and a court may consider other factors when evaluating fair use claims. Additionally, each claim is taken on a case by case basis and there is no set formula for determining fair use.
What is YouTube’s Copyright Policy?
While YouTube itself isn’t directly responsible for the content users upload, it has taken the opportunity to educate its users on copyright basics to avoid possible violations by providing a wealth of information on its website. One example includes a video that does a fairly good job of breaking down potential copyright issues a user may expect to come across when uploading unauthorized content.
It also provides users with a set of fair use guidelines that list the factors mentioned above with some general information to help debunk common myths such as giving credit to the copyright owner, as discussed.
To protect copyright owners, YouTube has developed a system called Content ID to help owners identify and manage their content on YouTube. Each video is uploaded and scanned against a database of files that have been submitted by content owners. If it is determined by the system that content in a new video matches that of a previously submitted video by a copyright owner, the owner has the following options:
- Mute audio that matches their music.
- Block a whole video from being viewed.
- Monetize the video by running ads against it.
- Track the video’s viewership statistics.
This gives control to the copyright owners and makes them aware of potential infringements of their work, while also indirectly providing the uploading user a license if the owner chooses to allow the work.
Regardless of whether you are copyright owner posting original content or a user uploading content that incorporates someone else’s work, it is important to always keep fair use in mind. Courts have held that copyright holders must consider fair use before they send a copyright takedown notice and understanding that analysis is important on both sides.