Attorney Steve® Copyright Law Essentials – Building your Youtube and Social Media Channels LEGALLY with Fair Use!
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NEW FOR 2023: Fair Use Webinar for your Creative Team.
Building your YouTube and other social media channels is no easy task. One thing that really helps is being able to use photos, videos, newspaper headlines, music, melodies, sound effects, images, and other digital content in your movies, presentations, and podcasts. It helps if you can use third-party content to help you tell your story. The good news is YOU CAN legally, if you comply with the copyright fair use laws (called Fair Dealing) in some countries. In a nutshell, you can use short clips as long as the clips meet the criteria of the FOURF-FACTOR fair use test (discussed below) and in essence, use those clips to help tell your story - using them to comment, criticize, analyze, etc. This page will present some basic information you need to know as a creator, and how you can use the fair use laws to your advantage. I even have a FAIR USE SYMBOL you can download and use for the low fee of $9.95 to help out others on notice that you have considered the use of third-party content, and expect it to be fair use and not infringement. SEE BELOW. This does not GUARANTEE you that someone will not sue you, but it may help bolster a claim of "innocent infringement" (which can reduce damages to as low as $200) or help defend you or your company against claims of "willful copyright infringement" by asserting the fair use defense.
17 U.S.C. 107 (the Four Fair Use Factors)
Here is the applicable federal law:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
These are known as the four fair use factors. Whenever you have a case alleging copyright infringement, and you are claiming a "fair use defense" then you analyze ALL FOUR FACTORS (as the court will) and see if it actually applies or not. If it does, you are home free. No infringement and you may be able to recover your attorney fees. However, if you cannot prove each of these factors, or at least most of them, then the opposite is true. Note that NO ONE FACTOR IS DETERMINITIVE, each factor gets weighed and analyzed and the conclusion as to infringement is more of a sense of what's fair (what promotes the progress of science and the useful arts) and what does not. So, there is no hard and fast rule, or bright-line test.
Attorney Steve® explains his “Four T's” of Fair Use
Click here to listen to the podcast on fair use four T's.
Situations where FAIR USE RIGHTS may be applicable (examples)
- Using an image in a film documentary
- Use a short sound effect in an educational podcast
- Use a short film clip on your YouTube channel to help illustrate your point (criticize or comment on the photo)
- Making a parody of a copyrighted photo, film, song
- "transforming" a copyrighted work into something new (giving it new meaning and a new purpose from the original)
- Using a political picture (ex. picture of a political figure) and commenting on a recent public affair
- Using a news headline clip from the Wall Street Journal to comment on real estate prices
- Using the Microsoft logo briefly to discuss a software issue in the new
A general rule of thumb is to use only a little piece of a song, or show a brief clip, (only the minimum necessary as needed to make your point) and to use it for the purposes of comment or criticism.
Some things to steer clear of are trying to commercialize a copyright holder's work, tarnishing a famous brand, or using copyrighted content just to spruce up your website, or make it more recognizable. These types of uses that do not qualify for fair use can always potentially draw a cease and desist letter or trigger a DMCA takedown notice to youtube (which may result in copyright strikes that could lead to a shut down of your account) or worse, a copyright infringement lawsuit in Federal Court. This, of course, can be very costly
These are just a few quick examples.
Attorney Steve® explains fair use and top tips for YouTube Creators building their channels
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- Bonus Materials: Here is a blog we wrote on the fair use defense.
Sample fair use disclaimer for youtube videos
Here is a fair use disclaimer you might want to consider using at the end of your videos to let artists and creators know that you have considered fair use. NOTE: make sure to analyze EACH clip or piece of content for fair use. Don't shortchange the process and make sure to document your work and save it in a file in case the matter turns legal.
Contact Vondran Legal® - A Premier Boutique Copyright Infringement Law Firm
If you need help with a copyright legal issue such as responding to a cease and desist letter or DMCA infringement notices (including bad faith filings), fair use defense, first amendment, Youtube notification / counter-notifications, subpoena response, or copyright strike issues, call us at (877) 276-5084. Since 2004, we have helped companies both large and small protect and enforce their intellectual property rights. We have appeared in over 275 federal court copyright litigation cases and have substantial experience in this niche area of intellectual property law.
For most (non-litigation cases) we can structure a low flat rate legal fee (predictable legal fee). You may also leave us a message through our contact form.