What is fair use?

Fair use is a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. Check out the videos below for helpful examples of fair use.

Criticism

Drake of the 99 Dragons - ProJared

by ProJared

Drake of the 99 Dragons - ProJared

by ProJared

Criticism is one of the core areas of fair use. Here, the host criticizes the game using short gameplay clips to illustrate specific points of his argument.

Note: This video contains some explicit language.

News Reporting

Asiana to Sue KTVU for Broadcasting Fake, Racist Pilot Names

by TheRunListChannel

Asiana to Sue KTVU for Broadcasting Fake, Racist Pilot Names

by TheRunListChannel

News reporting is another type of use that’s often considered fair. This video discusses an erroneous television report that made headlines. The commentator uses a brief clip to identify the subject of his report.

Remix

Donald Duck Meets Glenn Beck in Right Wing Radio Duck

by rebelliouspixels

Donald Duck Meets Glenn Beck in Right Wing Radio Duck

by rebelliouspixels

This remix combines short excerpts from different source materials and creates a new message about the effect of provocative rhetoric in times of economic crisis. Works that create new meaning for the source material may be considered fair use.

Different countries have different rules about when it’s okay to use material without the copyright owner’s permission. For example, in the United States, works of commentary, criticism, research, teaching, or news reporting might be considered fair use. Some other countries have a similar idea called fair dealing that may work differently.

Courts analyze potential fair uses according to the facts of each specific case. You’ll probably want to get legal advice from an expert before uploading videos that contain copyright-protected material.

• The four factors of fair use

  In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

  Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

  2. The nature of the copyrighted work

  Using material from primarily factual works is more likely to be fair than using purely fictional works.

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

  Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.

  4. The effect of the use upon the potential market for, or value of, the copyrighted work

  Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.

• Fair use myths

  There is some misinformation out there that might lead you to believe fair use automatically applies if you say a few magic words. There is actually no silver bullet that will guarantee you are protected by fair use when you use copyrighted material you don’t own. Courts will consider all four of the factors described above and weigh them on a case-by-case basis. Here are some common myths:

  Myth #1: If I give credit to the copyright owner, my use is automatically fair use.

  As you saw above, transformativeness is usually a key in the fair use analysis. Giving credit to the owner of a copyrighted work won’t by itself turn a non-transformative copy of their material into fair use. Phrases such as “all rights go to the author” and “I do not own” do not automatically mean you are making fair use of that material -- nor do they mean you have the copyright owner’s permission.

  Myth #2: If I post a disclaimer on my video, my use is fair use.

  As we noted above, there are no magic words that will do this for you. Posting the four factors of fair use in your video or including the phrase “no infringement intended” won't automatically protect you from a claim of copyright infringement.

  Myth #3: “Entertainment” or “non-profit” uses are automatically fair use.

  Courts will look carefully at the purpose of your use in evaluating whether it is fair, but the three remaining factors also need to be considered. Declaring your upload to be “for entertainment purposes only,” for example, is unlikely to tip the scales in the fair use balancing test. Similarly, “non-profit” uses are favored in the fair use analysis, but it’s not an automatic defense by itself.

  Myth #4: If I add any original material I created to someone else’s copyrighted work, my use is fair use.

  Even if you’ve added a little something of your own to someone else’s content, you might not be able to take advantage of the fair use defense -- particularly if your creation fails to add new expression, meaning, or message to the original. As with all the other cases discussed here, courts will consider all four factors of the fair use test, including the quantity of the original used.

• More resources

  If you’d like to learn more about fair use, there are lots of resources available online. You might be interested in:

  • The Center for Media and Social Impact’s Code of Best Practices in Fair Use for Online Video
  • The Digital Media Law Project's detailed explanation of the Four Factors

  The above sites are referred to for educational purposes only and are not endorsed by YouTube.