If you’re a content creator you probably are aware of the phrase Fair Use – but do you really know what it means? It seems that a lot of creators don’t have the proper grasp on this popular phrase which results in a lot of frustration when they’re dealt a copyright claim. This article will explain what fair use and hopefully help you avoid copyright claims in the future.
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. This means that even though something might be copyrighted by someone, it can still be used by someone else if it meets the work created meets the criteria listed on Copyright.gov
Why is Fair Use so important to get right?
Fair Use is very important to the YouTube community – content creators sometimes use footage from other sources to talk about and sometimes the owner of that content issues a copyright claim to that content. Depending on the size of your channel, this could be a significant hit to your revenue stream. As long as the claim exists on your video, you will not be able to make money until you resolve it.
The most famous example of Fair Use comes from popular YouTubers Ethan and Hila Klein of H3H3 productions. They had grown in popularity by reacting and providing commentary on videos. One video in particular – reacting to Matt Hoss’ “The Bold Guy” videos resulted in a lawsuit against H3H3 over misrepresentation, defamation and most importantly copyright infringement. After a year of court battles, it was determined that H3H3’s video commentating on Matt Hoss’ video constituted as fair use.
While it might not seem like it, the ruling in H3H3’s favor was a huge precedent for all content creators on YouTube and the rest of the internet. YouTube’s DMCA takedown methods are open to abuse on a regular basis. The burden of proof isn’t on the accuser, it’s on the accused. Meaning that if you get served with a takedown or copyright claim, you will need to prove that your actions were in the right. This could take weeks to resolve and even then, the person claiming your video doesn’t have to relent.
How to use Fair Use properly
When you use best practices of Fair Use you can greatly reduce the chances that someone will file a claim against you. And if a claim is filed, refuting it will be much easier.
The best way to combat Fair Use is not to use any copyrighted content at all. Obviously if your content is 100% original, there’s nothing to claim.
But if you want to use copyrighted content the best way to use it by Fair Use practices is to keep these questions in mind:
Is my content transformative?
This is probably the biggest trip up that content creators face – how much did you do to the copyrighted content to make it yours?
Commentary over a video game in a Let’s Play for example wouldn’t be considered fair use because you’re not really transforming the footage of the game you’re using. Even if the company is chill with letting you use their game, it’s still not Fair Use if they decide not to pursue a claim against your channel.
Reviews have a really fine line with fair use because if you use too much of the movie you’re reviewing, it could be seen as a copyright infringement which brings me to my next question.
Is my content a replacement for the original work?
This is a really good question to ask. Fair use is meant to be a commentary on the original work. If your video is a review on a movie, but you cover every single plot point and accent it with footage from the movie, does the viewer need to watch the movie?
Same with Let’s Plays – if you’re playing the latest Persona which has specific story lines to it, what motivation does a viewer have to play the game on their own?
Quinton Reviews did a really good video on the Abridged Series of YouTube videos. Basically they were condensed versions of your favorite Anime show dubbed by the creators but gave you a short rundown of each series. Even though they were trans-formative in a way that they were comedic, they still didn’t fall under fair use because they served as a replacement for the original art.
These two questions can help keep your content within the boundaries of fair use but one thing that still might occur is a copyright strike. And those are sometimes unavoidable but the best way to reduce the chances of getting one on your channel is to not use any content easily identifiable by the content ID system.
This means using as little copyrighted content as possible. If you’re reviewing a game, use a handful of small gameplay clips with the music removed. Reviewing a movie? Screenshots would be the best way to avoid an automated hit.
Having an on screen presence with the clip being in the top corner for a brief period of time would probably be the best in between, but as long as you create your content around the two aforementioned questions, you should be able to dispute the claims successfully should you get dinged.