A question I get fairly often is: “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?”
Many people more or less blindly assume that, if a video has been posted on YouTube (or otherwise on the Internet) and you have some purpose for which you want to use it, it’s fair game. But it’s not that simple. In reality, the answer to the question of “Can I use it?” is really: “It depends.”
This is not a simple subject to cover, and any attempt to cover all of its nuances is better suited to a treatise than a blog. But this is the first of a two-part article aimed at addressing the basic issues so that at least you’ll know where to start looking for answers. Here we go.
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;
- 3. Basic copyright law and, although less basic, the doctrine of “fair use.”
The first topic is the easiest, so let’s get it out of the way. A majority of courts have agreed that merely linking to another website like YouTube (whether in the form of a simple link to another website’s homepage or a deep link to a specific page on another website) does not constitute copyright infringement. For instance, in the 2000 case of Ticketmaster v. Tickets.com, a California federal district court stated that “hyperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved.” The court in Ticketmaster also held that linking was legal so long as it was clear to whom the linked pages belonged. In the court’s opinion, a URL link is simply an address, not unlike a building address, that allows a user to reach a destination; nothing about it is original such that it would be copyrightable. In the 2004 case of Online Policy Group v. Diebold, Inc., another California federal district case, the court agreed, stating, “Hyperlinking per se does not constitute direct copyright infringement because there is no copying.” Courts like the Ticketmaster court have also held that linking is unlikely to create confusion in the marketplace or dilution of a mark to support federal trademark claims. The use of another’s name in a link, as opposed to a logo, simply helps a user find information at the linked location; it does not imply affiliation, endorsement, or sponsorship by the linked site of the linking site.
The second topic – YouTube’s rules, is NOT so easy to understand. YouTube’s Terms of Service define “the Service” as “the YouTube website or any YouTube products, software, data feeds, and services provided to you on, from, or through the YouTube website.” It further defines “Content” as “the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service.” YouTube then makes a declaration that “the Content on the Service, and the trademarks, service marks and logos on the Service, are owned by or licensed to YouTube, subject to copyright and other intellectual property rights under the law.” In reality, the copyright to the Content is owned by the author of the Content (see Part II of this article), which YouTube acknowledges later in the Terms of Service. But, YouTube takes the position that, by publishing the Content through YouTube, the copyright owner is granting a very broad license to YouTube, which essentially gives YouTube the same rights in the Content as the copyright owner. This position is the premise for YouTube’s main restriction on re-publication of Content: “You agree not to distribute in any medium any part of the Service or the Content without YouTube’s prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).”
So what’s an Embeddable Player? This relates to a very underused function of YouTube, known as the Embed code. When owners of Content publish a video on YouTube, they are given the option to enable the Embed code for the video. The Embed code is the HTML code that would allow others to insert the video directly into their websites (as opposed to a hyperlink). The idea is that, if the Content owner enables the Embed code, it means that they are granting at least tacit permission to Embed the video and use it elsewhere.
But this idea hasn’t really been tested in Court. And, if all you’re talking about doing is enabling an Internet user to view the Content from some place other than YouTube, you can just as easily do that by providing a hyperlink to the YouTube Content, which you’re generally free to do even without the Embed code. (Keep in mind that, from a technical standpoint, nothing stops anyone from copying the YouTube URL and deeplinking it on their website or, for that matter, in a “live display” context, playing the Content directly from YouTube.)
The bottom line is that the Embed code question really only addresses a subset of issues, not the whole enchilada. For instance, there is nothing about the Embed code “tacit permission” theory that gives even the slightest hint that the copyright owner or YouTube consents to a live display or “performance” of the video, as opposed to just use in a third party website. Thus, the only thing that the presence of the Embed code does for someone looking to use a video posted on YouTube is assure them that YouTube is not going to come after them for using the Content as Embed code, without YouTube’s permission. Most often, however, that’s not really the question. And, as I said above, it’s the copyright owner who really owns the Content. Therefore, although many people look to YouTube’s complicated rules to try to answer the “Can I Use It?” question, they are only really useful in that, in some rather limited contexts, they provide a very clear “no” answer to the question.
So, 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. Part II of this Article will discuss the copyright issues and further attempt to unpack the answer to “Can I Use It?” question.