Attorney Steve® Copyright Law Essentials – Building your Youtube Channel LEGALLY!!!
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Building your youtube channel is no easy task. One thing that really helps is being able to use photos, videos, newspaper headlines and other digital content on your channel so that you can comment on, criticize, analyze, discuss the news and public affairs and the like. However, taking someone else's photos or videos and using it on your website without permission can lead to legal trouble and claims of copyright infringement that could compel a Plaintiff to file a lawsuit seeking 150k in damages for “willful” infringement. Of course, these types of legal distractions can cost you time and money to deal with.
That being said, under Copyright law, there is a concept of “fair use” which means under certain circumstances you can use the digital content of a third party (even WITHOUT their permission) if your use of the photo, image, news headline or other content is deemed a “fair use” of the copyrighted work. The four fair use factors are discussed below.
When you feel the fair use defense applies, it makes sense to post a disclaimer in your video letting any potential copyright holders know your stance and that you believe there is no infringement. This may prevent someone from sending you a cease and desist letter, or sending a DMCA “take down” letter to youtube, or worse, filing a federal court infringement lawsuit.
Attorney Steve® explains his “Four T's” of Fair Use
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What is “fair use” of a copyrighted work – The Four Part Test?
In order to facilitate the progress of society, certain uses of another person or companies copyrighted works may be lawful (and not infringing). A “fair use” of copyright depends on a 4 part analysis that courts go through to consider wether or not the use of a copyrighted work is “fair” (and thus lawful) or not a fair use (which becomes an infringement of copyright). The four part test is simple, yet can be complex, and depends on the 4 factors set forth in section 107 of the federal copyright law in the United States. This section states:
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; and 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 Courts can grapple with these four factors, and copyright holders, I guess you could say, are not real happy with the concept that you can just use their work, transform it, or comment on or criticize their works on your youtube channel (which many content creators like to try to monetize for commercial purposes). Nevertheless, the law allows certain fair uses. If you are claiming such a right, using a disclaimer at the beginning or end of your videos might put the copyright holder on notice that you did not seek their permission (or need to seek their permission) to use their works because you consider your use to be a legally protected use, such as for comment or criticize, or discussing the news under the first amendment free speech clause of the US Constitution.
Attorney Steve® explains fair use and top tips for YouTube Creators building their channels
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Examples of fair use
Here are a few examples of possible fair use: 1. Using a political picture (ex. picture of president Trump) and commenting on a recent public affair 2. Using a short clip of music in your youtube video for the purpose of criticizing it 3. Using a news headline clip from the Wall Street Journal to comment on real estate prices 4. Using the Microsoft logo briefly to discuss a software issue in the news 5. Transforming a photo (creating something new) and using it one of your videos. A general rule of thumb is to use only a little piece of a song, or show a brief clip, 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, or tarnishing a famous brand. These can always potentially draw a cease and desist letter or trigger a DMCA take down notice to youtube which may result in copyright strikes that could lead to a shut down of your account. Bonus Materials: Here is a blog we wrote on the fair use defense.
Sample fair use disclaimer for youtube videos
Here is a free sample of a fair use disclaimer you might want to consider. This is not legal advice and may not be accurate or updated to current case law so this is just a sample to consider.
FAIR USE COPYRIGHT NOTICE
The Copyright Laws of the United States recognizes a “fair use” of copyrighted content. Section 107 of the U.S. Copyright Act states:
“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.”
This video and our youtube channel in general may contain certain copyrighted works that were not specifically authorized to be used by the copyright holder(s), but which we believe in good faith are protected by federal law and the fair use doctrine for one or more of the reasons noted above.
If you have any specific concerns about this video or our position on the fair use defense, please contact us at XXX-XXX-XXXX so we can discuss amicably. Thank you.
Copyright Legal Help
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. We are a firm experienced with digital copyright law and in many (non-litigation cases) we can structure a low flat rate legal fee (predictable legal fees).