The Rules for Including Copyrighted Material on YouTube for Commentary and Informational Purposes

Federal law dominates the world of copyright rules, including those pertaining to the use of copyrighted material in YouTube videos claiming “fair use.” States may enact statutes addressing niche issues (e.g., Florida’s Chapter 119 § 084, regulating government copyrights for software); but,  the U.S. Constitution establishes supremacy of federal legislation.

Congress is granted power “to promote the Progress of Science and useful Arts” and the same clause authorizes Congress to guard the intellectual property of innovators, tasking the federal legislature to secure the exclusive right to their work.

The Lomnitzer Law Firm can help you register your creative expressions on a tangible form through the U.S. Copyright Office. Our team of intellectual property attorneys can safeguard your creations by bringing lawsuits, enabled by copyright registration, against parties that infringe on your exclusive rights, or we can represent individuals who have been wrongly accused of violating “fair use” when uploading copyrighted material to YouTube for informational or commentary purposes.

Exclusive Rights

The federal Copyright Act, in 17 U.S.C. § 102, provides copyright protection to creators, encompassing–but is not limited to–literary, musical, choreographic, audiovisual, architectural, sculptural, and dramatic works.

17 U.S.C. § 106 protects “exclusive rights” maintained by creators who have registered for and received copyrights for their works. That provision entitles copyright holders to carry out and authorize the following acts: (1) reproducing their expressions; (2) preparing works derived from the original copyrighted material; (3) distributing copies of their protected expressions by sale or another form of transfer; (4) performing particular copyrighted material in public; (5) displaying publicly certain protected works; and, (6) publicly performing their audio recordings via digital transmission.

Copyright holders enjoy additional protections, such as legal assurance in claiming authorship and prohibiting distortion of their expressions. This section describes the duration of these intellectual property rights and explains the process for transfer and waiver of rights.

Limitations on Exclusive Rights and Fair Use

Nevertheless, there are circumstances where “fair use of a copyrighted work” allows individuals, such as YouTubers, to incorporate otherwise protected material for purposes that 17 U.S.C. § 107 deems permissible. “Fair use” clarifies that unlicensed use of copyrighted material does not constitute infringement if the underlying purpose for using the material is “criticism, comment, news reporting, teaching…scholarship, or research.”

A factors test is used to determine, on a case-by-case basis, if a specific instance constitutes “fair use.” There are four factors to be considered, none of which are determinative.

The first factor to scrutinize is “the purpose and character of the use;” this analysis focuses on whether the usage of copyrighted work is commercial versus nonprofit or educational in nature.

The test then evaluates “the nature of the copyrighted work,” a factor the Supreme Court has interpreted through a framework that gives broader freedom for unlicensed use of “informational” copyrighted material (e.g., news broadcasts) than works of “entertainment.”

The third factor weighed by 17 U.S.C. § 107’s test is how much of the copyrighted work is used and the “substantiality of the” segment employed, relative to the entirety of the copyrighted material.

Finally, the fourth factor looks at the impact of the unlicensed use on the value of the copyrighted work. For instance, if the copyrighted expression is misconstrued by its inclusion in a YouTube video, where the copyright owner did not consent to the use, then “the potential market for” the expression could be negatively affected. If that is the case, a claim of “fair use” is less compelling.

Talk to Our Attorneys if You Are Experiencing “Fair Use” Problems Regarding Copyrighted Material on YouTube

In today’s digital world, platforms like YouTube can be a hotspot for copyright violation if not handled correctly. The Lomnitzer Law Firm could work with you to initiate legal action against bad actors who abuse and misinterpret the fair use exception law, or help honest creators who are only including material for purposes of commentary. Call us today to learn how we could help.