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Fair Use is Fair Play, a Look at Copyright with Hartman Global

By: Curtis Hankins Last Updated: October 17, 2018

Intellectual property (IP) law is in the news a lot recently, largely thanks to a new EU law being pushed forward called Article 13. Essentially, it’s a regulation that strong arms YouTube, Facebook, and Twitter into taking more action in preventing copyrighted material from being distributed online. Those platforms are basically unavoidable these days, so it is important for people to understand basic guidelines surrounding copyrighted material so that their content is not blocked, muted, or removed.

Most online platforms have gotten really good at identifying copyrighted material, and YouTube’s system is certainly the gold standard and model for most other services. It is called Content ID, and it allows copyright holders to submit files to a massive database of content. Then, any time a video is uploaded, YouTube scans it and compares it to every file in that database. Anything too similar is flagged and the original copyright holder is notified and given a few options: block the whole video from being viewed, monetize the video and make a profit by forcing ads to be played on it, or simply tracking the video’s viewership statistics.

Content creators do have rights of their own that generally fall under what’s called “fair use.” If your video, stream, or whatever else is considered fair use, then the original copyright holder cannot do anything to it. What qualifies under fair use is tricky however, and it usually depends on the intent of whatever you’re creating. Here are a few qualifiers that usually fall under fair use.

Education and research – Nonprofit school or research projects are generally considered fair use, so your high school project breaking down one of your favorite songs or analyzing a scene from a movie is fair game from an IP law standpoint. This is likely the easiest fair use qualifier, mostly because it rarely involves money.

News and criticism – Things start getting a bit trickier here, but generally as long as a journalist is using copyrighted material for the purpose of disseminating news, providing proof, criticism (like a review), illustration, providing historical context, or promoting public discussion, it will fall under fair use. This takes into account reasonable restrictions, like attribution, and ensuring the copyrighted content actually meaningfully contributes to whatever it is being reported on.

Commentary – It is super common to see YouTubers doing “react” or “trailer analysis” videos, and even making money off them. That is because they are considered fair use. As long as you are providing commentary, criticism, or any other kind of input in addition to the copyrighted material it will be fair use. Of course, that assumes you provide a meaningful addition. Saying “hey, this trailer is awesome,” before playing an entire trailer is not fair use.

Remixes and parody – If you’re making significant, meaningful changes to the copyrighted material you use, it is fair use. This is how Weird Al Yankovic makes his living after all. Keep in mind, as with commentary, that simple and meaningless additions are not fair use, if all you do before uploading a song to YouTube is change its pitch, it will be removed as soon as the copyright holder finds out.

If you are trying to get started as a YouTuber or live streamer, consider looking into royalty-free music libraries. For free or sometimes a lump-sum, content creators can use royalty-free music in any of their projects without needing to worry about retaliation for copyright holders.

That covers the basics, but everything has nuance. There is plenty of room on the internet for both individual content creators and copyright holders, as long as you understand your rights.