Understanding Fair Use to avoid being copyright struck on YouTube

Learn what constitutes fair use, what a copyright claim truly is, and how to avoid copyright strikes.

Episode #9-28 released on February 24, 2019

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There has been a lot of confusion and controversy as of late related to companies weaponizing the copyright strike system on YouTube, which exists because of the DMCA. There has, also, been some confusion on what a copyright claim is. And, to future complicate things, the definition of fair use is, also, a complicated matter to explain to some people. What I want to do is boil it down for you, so you all understand what exact of these terms are and how you are affected by each.

Let's start with Fair Use, because a lot of the problems starts with the definition of fair use, but a detail is almost always left out. Fair use is potentially implicated when another creator makes a video, based on the work of another creator, for the expressed reason to comment and criticize, create a parody of the original work, to be used as part of an educational endeavor, or in a transformative way like Andy Warhol when referring to some of his creations which date from the Dada period of art history, you can look that up.

The amount of the original content that can be used before you can no longer claim fair use is debatable, especially since that does depend on intent, but what is clear is that if the amount is sufficient that the viewer or consumer no longer has to go see the original piece, that is no longer within the fair use realm. It is important to note that parodies like those by Weird Al Yankovic have been licensed prior so whenever some else tries to use him, or others like him, as a legal example of fair use by the use of parody, those arguing parody as fair use are using the inaccurate examples since those works are often heavily based on the original work, in the case of Weird Al, the musical score is usually the same or similar.

There is, also, another detail that is often neglected, and that who has final say on what is, or isn't fair use. The only person who can decide if something falls within fair use, laws in your country provided, is a judge. Even with the events of H3H3 which, is an important stepping stone in the direction of fair use are, there hasn't be a definitive count case that reliably defines what fair use is, and for that reason the best course of action is to seek permission from the rights holder, and that is because of two reasons.

The penalties of companies believing your work doesn't fall under fair use include two possibilities, that they try to monetize the work and gain analytics of your work, or they attempt to strike it off a platform.

The most common action on the YouTube platform by a company, which is often done automatically with the help of bots, is the copyright claim. A copyright claim can be thought of as a retroactive license to use a work with the earnings and statistics of that work being given to the rights holder. This doesn't impact your work in any other way and doesn't affect your channel. This can be annoying but having asked permission it is possible that a one time or per view amount would have been required to use the rights holder's content within your video. Contesting these are possible, but if a significant amount of the right holder's work is within your work, it may be a bad idea to contest it.

Now, a right holder may seek to use the DMCA to strike your work off the platform, this procedure is manual and requires that a DMCA request be filed. It is considered legal action and has consequences for both parties under various circumstances. This typically affects less than two percent of all Youtube channels online. And, because YouTube does manually look at the work to see if the work is indeed violating at least to some definition the rights of the original rights holder, if you are found to be even remotely violating the rights of the original rights holder, you video will be deleted and your channel receives a strike, or under the new rules if you have never received a strike, a warning. If you have the funds and believe your work fall under fair use, you can contest it, but keep in mind that the strike stays unless the right holder removes it. And they have final say on that regardless. You can contest it in count, but that can, also, be expensive. This is why Fair use can only be determined by a Judge. A company with lawyers will have their legal opinion, you will have your opinion, only a judge has final say in that case.

The easiest way to avoid the issue is to ask permission. Obtaining a license to use the work not only protects you from getting a strike, but if you do get a strike, you can contest it knowing that legally you are in the right at that point. Keep in mind though, that copyright is infinitely complicated because we do not currently have any international definition that can be applied to every country uniformly, so it is possible that some countries have laws that may exclude your license, although, in those cases your video may simply become unavailable in those places, which just as a note, is already possible to do when you upload a video. You can designate places where the video is or is not available, if your license limits you because of other contracts and licensing.

Host : Steve Smith | Music : | Editor : Steve Smith | Producer : Zed Axis Dot Net

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