In the world of digital media, entertainment has been able to reach new heights in terms of what is possible and how much is possible. Not only is media making new achievements every day, but the journalism surrounding these achievements has also gone through something of a revolution. Video news and reviews have become a major part of the equation. This, however, has led to a question in what is legally referred to as “fair use”. Fair use defines the parameters by which an individual is able to use copyrighted material in conjunction with their own original work. Before you start your own blog or YouTube channel, it’s important to know what constitutes fair use, and what problems you may encounter along the way.
How Does the Law Define Fair Use?
According to the Fair Use Index on Copyright.gov, fair use covers use for criticism, comment, news reporting, teaching, scholarship, and research. They also make a point of stating that the work in question must be transformative, that is, the content must create new expression and meaning beyond the original expression or meaning given by the copyrighted work. An example of this would be showing a short clip of a movie in order to analyze its importance to the film as a whole, or playing a few lines of a song in order to break down what the lyrics mean.
The index indicates that much depends on the “amount and substantiality” of the use. If, for example, someone is using the majority of a song in their video without anything else intercut, that would be a clear violation of fair use. The key seems to be short clips interspersed between transformative material.
YouTube’s Fair Use Policy
YouTube’s fair use guidelines have been the topic of much controversy over the past few years, with YouTube content providers questioning whether or not they fall under fair use. The current guidelines share those of the Fair Use Index, but include four “myths” of fair use, debunking strategies such as giving credit to the original copyright holder, posting a disclaimer, claiming the video as entertainment or nonprofit, or adding any amount of original material. The policy maintains that the use of copyrighted material must be transformative and that the amount used must be reasonable.
Where’s the Fair Use?
The prominent argument heard from content creators is that the guidelines for fair use, especially on YouTube, leave some gray areas in terms of where the boundaries lie. For example, the law states that amount and substantiality are key points to consider, however there are no specifications as to what length constitutes fair use. This gives copyright owners plenty of leeway in terms of what they can claim as a violation.
YouTube has also introduced a new system known as Content ID, which is a fingerprinting system which automatically alerts copyright owners of videos which contain their content. This has proven to be a deeply flawed system, with YouTube creators receiving copyright claims despite using no copyrighted material in their video.
This has been seen in examples such as The Nostalgia Critic, a movie review series which has seen numerous videos taken down and monetization taken away for unclear reasons. In this specific case, it prompted Doug Walker, who portrays the Nostalgia Critic, to launch the “Where’s the Fair Use?” campaign, promoting users who have had their content tampered with in similar ways, and urging lawmakers to tackle these issues and force entities such as YouTube to be more responsible.
Ultimately, the answers are still unclear, but for now the best way to avoid copyright violations is to use copyrighted material sparingly and to ensure that it is transformative, falling under the categories listed above by the U.S. Copyright Office. YouTube’s system is still filled with gray areas, but as long as you can build a case for yourself, you should be able to protect yourself and your videos, and continue to make fair, legal, and entertaining content.