“On June 25th, 2016, at the 7th Annual 2016 VidCon in Anaheim, CA , Weintraub Tobin Shareholder Scott M. Hervey with Rian Bosak, Head of Network Operations at Fullscreen presented “Fair Use and Youtube- A Creator’s Take” to a standing room only audience of digital media creators and industry professionals.
1. Fair Use and
YouTube - A
Creator’s Take
Scott Hervey, Weintraub Tobin
Rian Bosak, Fullscreen
2. What is a Copyright?
• Protection granted to original work of authorship fixed
in a tangible medium
• Articles, programs, web pages, multi-media, music
• No protection of functional aspects
• Exclusive right to reproduce, derivative works, copy,
perform, display, transmit
• Generally lasts for life of author plus 70 years
• Timely registration allows attorney’s fee recovery, statutory
damages, etc.
3. Fair Use in 5 Minutes
▪ Fair Use is a defense to an infringement claim;
▪ Fair Use is not automatic; it is determined based on the facts at hand
▪ Fair Use is a balancing test of the following four factors:
(1) the purpose and character of the use, including whether such use is of a
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; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
4. Purpose and Character of the Use
• Does the new work add something new, with a further purpose or different
character.
• Does the new work alter the first with new expression, meaning, or
message.
• Is the new work merely a replacement of the original work.
• If a work is like the first two points and not like the third, the work is
“transformative.” The transformative nature of a work has become the most
important element in determining fair use. If the work is not
transformative, it’s likely not fair use.
• A parody is transformative. It provides social benefit, by shedding light on an
earlier work, and, in the process, creating a new one.
5. So What is a Parody?
● A work that imitates the characteristic style of an author or a
work for comic effect or ridicule.
● For the purposes of copyright law, a claim of parody relies on the
new work commenting in some way on the original work.
● If, on the contrary, the commentary has no critical bearing on the
original work, there is no parody. A court may find that the
alleged infringer merely used the original work to get attention or
to avoid the drudgery in working up something fresh.
6. Nature of the Work
• Some works are closer to the core of copyright protection than
others, with the consequence that fair use is more difficult to
establish when the former works are copied.
• In the digital media space, any third party work used - video clips,
images, music - would be of the type that is closer to the core of
copyright protection.
• So what does this really mean?
7. The Amount/Substantiality of Work Taken
• How much of the original work is used?
• Is the quantity and value of the materials used reasonable in relation to
the purpose of the copying.?
• Still, a parody must be able to “conjure up” at least enough of that
original to make the object of its critical wit recognizable.
• This is not, of course, to say that anyone who calls himself a parodist
can use all or the best parts of a work and get away scot free. In parody,
context is everything and the question of fairness asks what else the
parodist did besides go to the heart of the original.
8. Market Effect / Value Diminution
• When the second use is transformative, the new work does not act as a
substitute for the original work. This is so because the transformative
work and the original usually serve different market functions.
• A lethal transformative use, like a scathing theater review, may kill
demand for the original work but it does not produce a harm cognizable
under the Copyright Act
10. The Special Challenges With Music
Music has many special challenges due to special nature of
ownership rights in music. Some uses that may likely not fit
into fair use are:
● “Parody” videos
● Cover videos
● Dance videos
● Live performances
11. What Can Happen if I Use Unlicensed Content?
Even unintended infringement can cause havoc
on your YouTube account.
● Content ID Claims = Monetization Loss
● Global Blocks = Monetization Suspension
● Strikes (DMCA Takedowns) = Channel Loss
12. When Should I Care?
While copyright infringement is never ok, not all YouTube
claims are created equal:
● Address WW Block Claims
● Address Copyright Strikes (DMCA Takedowns)
● TOS/TOU/Thumbnail strikes can also cause
monetization suspension. Deal with these.
● DO NOT DELETE YOUR VIDEOS BEFORE
RESOLVING CLAIMS
13. What is the Claim Process on YT?
1. Dispute a claim (creator at any time)
2. Review and decide (rights holder within 30 days)
3. Appeal reinstated claim (creator at any time)
4. Review and decide (rights holder within 30 days)
5. Counter-notify DMCA takedown (creator within 30 days)
6. File Complaint in Federal Court to uphold DMCA
takedown (rights holder within 30 days)
14. When Can Fair Use Help Me?
● News – Use of a work in the form of reporting can be fair use.
● Commentary – Use of a work as display of proof in social commentary
can be fair use.
● Transformative – Use of a work to create a new work that is different
in purpose and meaning than the original can be fair use.
● Educational – Use of a work for educational purposes can be fair use.
15. How does it work on Facebook?
Facebook as a platform is still very young and functions
different from YouTube. This will require more work from
you today to resolve issues.
● FB is Takedown only today
● Video reinstatement is possible but is manual
● Keep a log of your video links
● Unknown how many takedowns have page impact
16. Points to Remember
● Fair use is a defense only to a copyright claim
● Always consider the 4 fair use factors
● If in doubt, seek legal advice
● If still in doubt, get a license prior to upload
● CID/FB Rights Manager doesn’t discriminate
● Don’t risk your channel/earnings potential
