Know when fair use applies
Identify when you need copyright permission as you upload to YouTube and when exceptions might apply to copyright law.
- Estimated time to complete: 20 Min
- Level: “I'm relatively new to fair use”
- Date: November 5, 2019
How is fair use determined?
- Across the board, courts usually focus on whether the use of another person’s song or video is “transformative.”
- Basically, did you add new expression or meaning to the original work, or could your work replace the original? For example, in the U.S., videos that might be considered fair use include commentary, criticism, research, teaching, or news reporting. The more transformative your contributions are, the less likely it is that a court would find your use to be infringing.
- In the U.S, fair use can only be determined in court by a judge. Specific rules relating to fair use or fair dealing vary on a national basis. U.S. courts look at the four factors of fair use outlined below and consider these factors together.
Think carefully about all four of these factors and get legal advice if needed.
Four factors of fair use
Fair use overviewWe answer what fair use is, how it's determined by law, and things to keep in mind for Fair Use relating to YouTube.
Fair use mythsI only used a small amount of copyrighted content
- Any amount of unlicensed copyrighted content used—even if it’s just for a few seconds, may result in your video getting claimed by Content ID or taken down by the copyright owner. You can argue fair use, but you should understand that the only place where a fair use determination can be made is a courtroom.
I gave credit to the owner
- Giving credit to the copyright owner doesn’t automatically give you the rights to use their copyrighted work. Be sure to secure the rights to all unlicensed elements in your video before you upload it to YouTube. If you’re relying on fair use, even if you add original material to someone’s copyrighted work, your video may not qualify, so be sure to carefully consider all four factors and get legal advice if needed.
I’m not making money
- Not trying to make money off copyright-protected work doesn’t stop copyright claims. Declaring your upload to be “for entertainment purposes only” or “non-profit,” for example, is not enough by itself. When it comes to fair use, Courts will look carefully at the purpose of your use in evaluating whether it is fair. “Non-profit” uses are favored in the fair use analysis, but it’s not an automatic defense by itself
If I add any original material I created to someone else’s copyrighted work, then my use is fair use
- Just because you add original material does not mean you automatically own the rights to the content. Remember courts usually focus on if the use of the work is transformative. Be sure to review the four factors of fair use and consult a lawyer if necessary.
Did you know?
- The U.S. Copyright Office maintains a Fair Use Index that tracks judicial decisions on fair use.
- The Center for Media and Social Impact has assembled a “Code of Best Practices in Fair Use for Online Video” that discusses common use cases.
- Not all countries recognize fair use, but they may have enacted other exceptions to copyright such as fair dealing.
Find answers to more fair use FAQs here.
What is fair use?
Fair use allows you to reuse copyright-protected material, under certain circumstances, without getting permission from the copyright owner. Fair use is an exception to copyright law, and is not determined by YouTube.
- Fair use is determined on a case by case basis, and only a judge can make the determination whether or not the use copyright-protected material is excepted under fair-use.
What counts as Fair Use?
- Different countries have different rules about when it’s okay to use material without the copyright owner’s permission. Note that in some countries, it’s not always called “fair use” -- for example in the UK, it’s referred to as “fair dealing.”
- Also, keep in mind that just because you say something is “fair use,” give credit to the copyright owner, or add a disclaimer like "no infringement intended," it doesn’t mean you’re protected.
Check your knowledgeWhat do you know about fair use?