Fair use overview
Hi, I'm Sari- here to answer your copyright questions.
Today’s topic is Fair use
First, 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. Lemme say that again -- YouTube does not decide what is fair use and what isn’t. Only the court can do that.
What counts as Fair Use?
Different countries have different rules about when it’s okay to use material without the copyright owner’s permission. In some countries, it’s not even called “fair use” -- for example in the UK, it’s referred to as “fair dealing”.
Aside from what your country calls it, courts usually focus on whether your use of another person’s song or video is “transformative.” Basically, they’re asking if you added new expression or meaning to the original work, or if it basically copies the original. For example, in the U.S., content that might be considered fair use includes commentary, criticism, or news reporting.
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 does not mean that you’re protected!
How is Fair Use determined by law?
Determining fair use is never a cut and dry process. In the U.S, fair use can only be determined in court by a judge. The judge will look at your case overall based on a few different factors.
Here are a few things to keep in mind, based on what the courts look at. You’re less likely to qualify for fair use if:
- Your video merely copies someone else’s and adds nothing else
- You’re trying to monetize your video
- You’re using fictional copyrighted material, rather than factual material
- You borrowed a large amount of material rather than a small portion
- The main focus of your video is the copyright protected material
- OR if your use of the material harms the copyright owner’s ability to profit from their original work
So, all of these are helpful factors to consider when thinking about fair use. But, also keep in mind there’s no guarantee that you’ll qualify for fair use just because you take these factors into account. For example, just because you don’t monetize your video, or if you only use a small portion of the copyrighted material, that does not mean you automatically qualify for fair use. Again, the courts look at everything holistically, and there’s always risk involved when using someone else’s copyrighted work. Think carefully about all of these factors and get legal advice if needed.
Why does my content, which is clearly fair use, keep getting claimed by Content ID?
Automated systems like Content ID can’t determine fair use, which is a subjective, case-by-case decision that can only be made by a court. While YouTube can’t arbitrate Fair Use disputes, and automated systems like Content ID can’t account for Fair Use, this doesn’t mean that Fair Use can’t exist on YouTube. If you’re a creator, you should avoid relying on fair use unless you understand how the rules work and you’re prepared to defend your position through the Content ID dispute process and potentially the counter notification process. This forces the claimant to withdraw or to file a lawsuit. This isn’t a decision that should be taken lightly or without legal advice. But it is the most powerful step you can take if you want to pursue a fair use defense, and will force the most thoughtful review from the claimant.
Companies are claiming just a few seconds of a video, how is that not abuse?
One of the biggest myths about fair use is that there's a minimum amount of time you're allowed to use someone else's copyrighted work. But despite what some people may think, there is no duration which you can use someone else’s content that is automatically protected under Fair Use. In fact, courts have rejected Fair Use arguments for songs that only sample a few seconds of someone else’s work. So if you’re using any amount of content that you don't own – even a few seconds – you are taking a risk of receiving a claim or takedown. You have the right to argue Fair Use, but only courts (not YouTube) can ultimately decide whether the use of someone else’s content is protected under Fair Use.
Because of this, our approach has been to empower creators to remove claimed content whenever possible, if they feel that it isn’t adding significant value to their video. That’s why we’ve built tools to help you easily identify the content being claimed in your video and remove or swap out claimed music with copyright-safe tracks from the free YouTube Audio Library.
We’re also now requiring claimants to add timestamps to these claims so you know exactly which piece of your video is being claimed. We’ve also updated our editing tools so that when you remove the content manually claimed in your video, the claim is automatically released, restoring monetization to your video if you were previously monetizing.
And that’s it for Fair use! Check out more info in our Help Center linked in the description below, and be sure to check out the other videos in our Copyright series linked here.