Copyright and Fair Use on YouTube

by | Apr 5, 2018 | blog, Copyright

In part four of this five part series, we look further into copyright law and some things to consider when you create content for YouTube, embed content, and/or try to use pieces of content from another YouTube video. Take a look at the video below and the transcript of the video is below.

 

Christi: Let’s talk about YouTube. From a marketing standpoint, a lot of our clients, we’re telling them they should be utilizing YouTube with their videos that we’re doing. We put almost all of our videos that we produce on YouTube, as a sample of work. But I’ve heard a lot of grumblings from professionals about things being cherry picked off of YouTube. There’s nothing to stop somebody from downloading a video off of YouTube.

Tony: Anything on the Internet is easy to copy. And the thing that is common, or at least used to be more common, is, on a website, if you do a promotional video. Let’s say you put this video on your website. And a competitor in Charlotte says, “Hey, that’s a good video, I think my customers would appreciate hearing that”, and they don’t copy the video, and I forget that the code name for it, but they do, basically, a pass-through link to their blog site. You know, my page is not linked to your page. So, if you, for example have a blog on WordPress right now.

Christi: Right.

Tony: One of the functions on WordPress. Last I checked was, I can play a video from YouTube directly on my WordPress site. So, you go to my WordPress site, you’ll see the video, press play and it plays on my site.

Christi: Now you’re embedding it.

Tony: Technically.

Tony: I’ve made no copy, because what the computer is doing, is literally like taking it, conveying the file as it’s played on YouTube onto my website. There is a temporary copy of some sort being made on my webpage, but the content still resides at YouTube. It’s that pass-through play that happens all the time. And you know the vast majority of works on YouTube are not commercial in nature. They’re not put out there for purposes of making money for me, in fact it’s very difficult for the rights holders. People typically make money on YouTube by selling advertising. And then they don’t care where it’s being clicked. As long as the clicks are happening, right, the advertisers for their page are happy.

Christi: But in your case you wouldn’t be happy about that at all.

Tony: It doesn’t come up often, and I think it’s because people know that when you put it on YouTube, it’s out there for the whole world to use and see. But it does happen, on occasions, that people don’t like their content pass-through viewed. And I haven’t looked at this in over a year, but YouTube was playing with their terms of use, and you know, if somebody came in and said, “Hey, my YouTube video is being pass-through played on my competitor’s site”, the first thing we’d have to do is go to your YouTube terms of use, and see if you consented to any form of pass through linking for YouTube.

Christi: And if I didn’t, then do I have recourse? Can I say, “That’s my video? You don’t have a right to use it on your website?” If there was no consent to the YouTube terms of use.

Tony: The competitors make enough money off the very short time that immediate copy was on their website of your work, which would be an act of infringement, if it was without your permission. So, yes, but we’d have to look real closely at that. I think YouTube tries to inoculate their users from this type of problem.

Christi: So, what if somebody takes my video off YouTube. And it’s cut into something else, but uses my footage that was on YouTube.

Tony: OK, two different things. So. YouTube does not have an export function. At least not on the user side. So, I don’t think that when you put your content onto YouTube you’ve consented to third parties. Very, very unlikely that you’ve expressly consented to third parties making their own download copy. Making a copy is a violation.

Tony: So, the question is, as YouTube, have you signed a unilateral license or consent of third parties viewing through you to download? Pulling content off of a YouTube and recording it yourself is almost certainly an unauthorized copy. But, you can get back to, it would be an act of infringement, and of course there are issues about Fair Use. Where are you doing this? Are you teaching a class in videography, and you want to use this for part of your course instruction? Or using it for social commentary or criticism? That also might make it a Fair Use. Why are you using it? If you’re downloading it for your own commercial gain, probably not going to be a Fair Use. If you are downloading it for you to modify it, remember copying is an act of copyright infringement, and so is modifying, making a derivative work. No.

Again, could it be excused? Could it be a Fair Use if your purpose of copying it is transformative and artistic in nature? There’s oftentimes a Fair Use argument, but the act of changing somebody else’s work is to be technical. Fair Use does not make it not copyright infringement, it just excuses the infringement. So, if you change somebody else’s copyrighted work without their permission. If you modify it, you can still see the resemblance of the original cooperated work, you’ve almost certainly committed copyright infringement.

Christi: If you’re doing this for artistic or social commentary purposes you might have a Fair Use argument that would excuse the infringement.
Or if you’re teaching a class. If someone’s teaching a class about video production and proper techniques, of you know, how to edit a video say for example or how to how to shoot great landscape shots of Raleigh and they download my footage from YouTube, and they’re showing that, maybe they’ve edited it. Maybe they haven’t, but they’re showing that in their class. This is what you do this is how you do it. That’s okay?

Tony: Well, it might be now. But what if you have a licensing practice, where I have an educator’s rate, that if you want to use as part of your teaching in class, you pay me ten dollars per click or whatever. Fair Use is very fact dependent and people again like to talk about Fair Use a lot. Very rarely is it worth litigating. The most interesting corporate cases are quite often exactly that, transformative artistic Fair Use. But there are more difficult cases in the commercial context.

Christi: Is there anything you feel like we didn’t get into, that might be helpful for creative professionals, just to keep in mind when they are out there producing work and either selling it or posting it on their own social media sites, YouTube, etc., they need to remember?

Tony: One thing we haven’t touched on, one thing that I think bears repeating. If you’re in the work of selling copyrightable content, to include video content, and that’s where everything is going towards, video, and you have a work that you want to sell more than once. Particularly if you think it has mass retail legs, or any significant repeat use, you really ought to register the works. Something we haven’t talked about, is when it comes time to enforce your copyright, is a substantial difference in your rights, your enforcement rights. If the work was registered. Prior to that infringer’s first act of infringement. The thing is, is that you have to register a work before suing the infringer. It’s a prerequisite to get at a federal court. But if that work was registered prior to that infringers first active infringement, you’re in a significantly better position to enforce your works, much more remedies. The last thing, just to repeat, whenever you’re working in this area, it really pays dividends to reduce to writing what the agreement and mutual expectations are, because intellectual property, particularly on the copyright side, is very susceptible to, “he said, she said” and just simple misunderstandings about what each side thought the other would, or could do with the works.

Christi: Thank you very much for joining us, we really appreciate you sharing that insight with us and I’m sure, hopefully, this will prevent issues within our community in the future.

Tony: You’re very welcome. Thank you for having me.

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