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YouTube and Fair Use

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Purpose

This article is designed to act as an overview to clarify the cases of fair use of copyrighted content while using YouTube to host videos and a way to find additional resources.

What is fair use?

From Section 107 of the US Copyright Act:

“[…]the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

How is fair use determined?

Fair use is determined by a judge who analyzes how fair use applies to a specific case. Typically, cases are analyzed against the precedent of four factors of how fair use works.

Explanation of the four factors of fair use

The following explanation of the aforementioned four factors is provided by the U.S. Copyright Office. Further descriptions and supplemental documentation can be found on their website.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    1. Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  2. The nature of the copyrighted work
    1. This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    1. Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.
    1. Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Links to Additional Content

For more information on YouTube’s guidelines, examples, and their efforts to assist creators regarding fair use can be found at the link below: