Can I Use That Cool Video on YouTube? (Part II)

This is the second part of a two-part article (Part I is here) to try to help folks answer a common question: “I found this great clip on YouTube, and it [fill in the blank: “is really funny” or “really illustrates my point well” or “works really well in my presentation]. Can I use it?”

It’s not a really easy question to answer, even in context. In the abstract, it’s even harder. But, as pointed out in Part I, there are essentially three main sources to which people can look when considering the answer to the “Can I Use It?” question. They are:

  • 1. The law related to hyperlinking;
  • 2. YouTube’s (somewhat complicated) rules related to its service; and,
  • 3. Basic copyright law and the doctrine of “fair use.”

Part I covered hyperlinking and YouTube’s rules (the idea of “Embed Code”). But if you’re going to think about using a YouTube video for any purpose other than a website hyperlink or as embedded HTML, you really need to grapple with the copyright issues. So, here it goes.

The basic concept of copyright is really quite artful in its simplicity. Under United States copyright law, an original “work” of authorship is subject to a copyright upon its creation. Unlike other forms of intellectual property, the “work” doesn’t have to be registered, used in commerce or even published to be considered as protected. It’s protected merely upon its creation.

Only certain types of material are considered “works.” But original “audiovisual works” and “sound recordings” are expressly included, and YouTube videos usually fall under both categories. So, generally speaking, the vast majority of YouTube videos are protected by copyright.

But, it’s not quite that simple. The work must be original. And ideas are generally not protected by copyright, only the expression of an idea. So, concepts (or ideas), procedures, methods, systems, processes, principles, discoveries, or devices themselves are generally not protected by copyright, but this is different from a description, explanation, or illustration of these things, which are protected by copyright.

So, for example, the method for how to change a tire is not something that copyright protects. But if I make a video recording of myself explaining how to change a tire in my own words, that is protected by copyright, because there is originality in the way that any individual person might explain how to change a tire. Once I convert my explanation to a fixed medium (like a video recording), then – voilà – it’s a copyrighted work.

Copyright means that the author of the work has certain exclusive rights to the work. It’s “the whole bundle of sticks” – the rights to reproduce, to prepare derivative works, to distribute copies, to perform the copyrighted work publicly, to display the copyrighted work publicly, and to perform the copyrighted work publicly by means of a digital audio transmission. That’s pretty much everything. When I publish my “how to change a tire” video on YouTube, I’m just displaying my copyrighted work publicly. But I’m not giving away any of my exclusive rights (perhaps subject to an argument based on the previous discussion of “Embed code” under YouTube’s rules). In other words, my publication of my copyrighted work on YouTube doesn’t transfer any rights in the work to you. Generally speaking, therefore, you can’t just take my YouTube video and use it any old way you want. You need my permission first.

youtube-takedown-noticeBut then it gets really complicated, because we run into the doctrine of “fair use.” Section 107 of the U.S. copyright code contains a list different purposes for which the reproduction of a copyrighted work may be considered fair use. The list includes criticism, comment, news reporting, teaching, scholarship, and research. But there are libraries full of commentary about what is, and what is not, fair use. With respect to the use of a given work, seasoned copyright lawyers can disagree. This article certainly can’t offer an exhaustive discussion of fair use (if indeed such a discussion is even possible). But a basic understanding starts with Section 107’s list of four factors to be considered in determining whether or not a particular use is fair:

  • 1. The purpose and character of the use, including whether such use is of 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

If it strikes you that this is about as clear as mud, you’re not alone. The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. The Copyright Office’s web page provides now includes an index of cases in which courts have grappled with the question of fair use. Among other things that courts have ruled as fair use are the following:

  • quotation of excerpts in a review or criticism for purposes of illustration or comment;
  • quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;
  • use in a parody of some of the content of the work parodied;
  • summary of an address or article, with brief quotations, in a news report;
  • reproduction by a library of a portion of a work to replace part of a damaged copy;
  • reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  • reproduction of a work in legislative or judicial proceedings or reports;
  • incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

If you don’t find this particularly helpful, you’re in good company. The bottom line is that “fair use” is a sticky wicket. You can study it for hours on end and be no more confident of your understanding at the end of your study than you were at the beginning. As the Wikipedia entry on the doctrine somewhat blithely notes, “Fair use is commonly misunderstood because of its deliberate ambiguity.”

The moral of the story is that answering the “Can I Use It?” question when it comes to YouTube videos can be a real handful. The Copyright Office’s website formerly included this advice – “The safest course is to get permission from the copyright owner before using copyrighted material. . . When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation.” Perhaps the last part of the Copyright Office’s advice was a bureaucratic attempt at humor. But, now, the Office’s website simply says, “If you are concerned as to whether a particular use is fair, however, or believe that someone has made an unauthorized use of a copyrighted work in a manner that is not fair, it is best to consult an attorney.”

By the way, if you’re wondering whether the use of the Copyright Office’s commentary in this article is “fair use,” it doesn’t have to be – “works” of the U.S. government is treated as “non-copyright” by U.S. Copyright law.

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