Rights of youtubers: Fair Use of Copyrighted material

Ladies and gentlemen! Boys and girls! Children of all ages! Welcome back to the Assassin's Den!

Today, I'm going talk about a growing concern for content creators on youtube, bliptv, springboard and many other video hosting sites.  This concern is the use of copyrighted material in their videos, and the videos being forcefully taken down because of it.

 Now, before I go into how to combat this, I must first go into what a copyright is.  Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other related rights. It is a form of intellectual property (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete. Copyright initially was conceived as a way for government to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them.

In short, it is meant to protect inventors, movie makers and music creators from the government and giant corporations from taking their ideas and works and screwing them out of the credit and financial gain they deserve.  The problem with this is that giant corporations have managed to use this as a way to screw the little guy.

So how do we combat this?  Simple; 17 U.S.C. § 107 of the US Copyright Act of 1976.  This is the famous "Fair Use" defense. What this entails of is the use of material of copyrighted material for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. 

Now, sites like youtube exist on two things; the content creators, and large companies that hold the copyrights for music, videos and games.  Youtube errs on the side of caution, and when a large company flags something for copyright violation, youtube takes the video down and warns the content creator.  However, they are willing to fight for their content creators if they know their rights, and are in the right.

So how do we know protect ourselves? By knowing what we are creating.  Most youtube content that contains copyrighted material falls under three main headings; review, commentary and parody.

Review: This one is the easiest one to understand, since people like the late Gene Siskel and the late Roger Ebert made careers off this.  This falls under the "criticism" clause of Fair Use.  This allows people show clips from a movie or game, or have sound from music, so long as they criticize the work (second dictionary definition of the word, not the first).

Commentary: This one encompasses your standard let's play, though it also protects when someone "riffs on a movie".  If you talk over the footage, you are protected under Fair Use. (This is why video walkthroughs tend to get taken down more often than let's plays; they are not protected as commentary under Fair Use.)

Parody: This one is sketchy.  On one hand, guys like Weird Al Yankovic have been making a living doing this for the better part of 30 years. On the other, I can't think of a way to justify this under Fair Use.

So what do we do?  Simple; know what we're making.  If you can't guarantee that what you're doing falls under review or commentary, contact the holder of the copyright.  Most of the time, this requires a message to a record or movie company, asking for permission. 

If your work IS protected, then a disclaimer in both the description on how it's protected, and before your video officially starts. A vocal "This video is protected as (whatever it is) under the Fair Use clause." and a full description of the text from 17 U.S.C. § 107 of the US Copyright Act of 1976.

I know this is unfair to non-US content creators, but remember this; youtube and copyright holders are American companies, and the rules of US Copyright Act of 1976 is the law they are invoking, and it is the law that we all must use to protect ourselves.

I know that's what I'm going to do when I have the equipment I need to start my show.

For now, know your rights, and happy creating!