Introduction to Fair Use in YouTube Videos

The term "fair use" in relation to YouTube videos may seem straightforward, but it's a grey area that requires careful consideration. Fair use allows creators to use copyrighted material in their videos under certain conditions, specifically for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. This article explores the intricacies of fair use, particularly in the context of commentary using copyrighted music on YouTube.

Important Note: The following information is specific to US law. While fair use has been adopted in the copyright law of Israel and some other countries, the specific factors and their application can vary significantly between jurisdictions.

What Constitutes Commentary for Fair Use?

One of the most common applications of fair use on YouTube is when it comes to commentary. Commentary involves a critical discussion, analysis, or reflection on an existing work, known as the "original work". To qualify as fair use, the commentary should substantially contribute to the overall new work, providing value beyond a mere rehash or reposting of the original content.

"An Australian group already did that but it was done for laughs and only one progression was used." This example highlights the need for simplicity and originality. Combining comments and creative use, even with copyrighted material, is more likely to be considered fair use compared to a straightforward re-posting.

Key Points to Consider:

Substantial Commentary: The commentary must be significant in the new video. Merely stating a basic opinion about the original content is unlikely to qualify as fair use. Contact for Permission: If the commentary requires the use of substantial portions of the original work, it's advisable to contact the original creator’s agency to discuss permission and potentially negotiate a fair use agreement.

Factors Affecting Fair Use

Several factors determine whether a use of copyrighted material qualifies as fair use. A use must be assessed "on a case-by-case evaluation" to determine if it falls under fair use. The primary factors include:

Transformative Use

The most significant factor is whether the use is transformative. Transformative use refers to when a work serves a purpose significantly different from the original. For example, "If a work serves as a substitute for the original that weighs against fair use. If a use harms the market for the original that weighs against fair use."

Commentary: When a work commentates on the original, it increases the likelihood of fair use, as it provides additional value and insight rather than merely replicating the original work.

Substantial Comment

There is no set amount of commentary needed. However, the commentary must be substantial and contribute significantly to the new work.

Profit and Market Impact

Profit is a factor, but it does not automatically disqualify a use from being considered fair. A use can still be fair even if it is for profit, as long as it does not harm the original work’s market value. However, if the use harms the market or replaces the original, it may be more difficult to argue for fair use.

Copying Small Portions: While using a small part of the original work often favors fair use, it is not the sole determining factor.

Unpublished Works

Using unpublished works weighs against fair use, as the rightsholder has not yet given consent for such use.

Conclusion: Navigating Fair Use

Understanding fair use in the context of YouTube commentary and copyrighted music is complex and requires careful consideration. There are no fixed rules or automated processes that determine fair use. It is always better to err on the side of caution, especially when dealing with significant portions of copyrighted material or where revenue is involved.

The most important takeaway is that judges will consider all relevant factors and make a determination on a case-by-case basis. The cost of defending a fair use claim, even if successful, can be significant.

Finally, it’s important to know that fair use is a strictly US concept, and its application can vary between jurisdictions. While it has been adopted in some countries, other countries have their own copyright laws with significantly different rules.