I like to participate in forums from time to time to give YouTubers advice on music licensing and music copyright. One subject that pops up all the time is fair use of copyrighted music on YouTube videos. If you are new to YouTube, the reason copyright is such an important subject is because copyright infringement can lead to a lot of problems. It can lead to your videos being taken down, being unable to make money on your videos and/or copyright holders receiving all of your advertising revenue, or in worse cases, being banned from YouTube or sued. Music is a type of copyrighted content that exists within many YouTube videos and depending on the video, content creators may or may not require permission to use this music. While some situations are very clear in where someone should seek permission or license music for their videos, other situations have led content creators astray, and into some hot water via a misunderstanding of fair use. Let’s clear some things up, shall we?
First, What is Fair Use?
Fair use is a defense against copyright infringement in where an accused infringer claims that they did not need permission to use a copyrighted work because it falls within uses – and I quote from the U.S. Copyright Office – “such as criticism, comment, news reporting, teaching, scholarship, and research.” When a defense is made in the name of fair use, there are four factors that are taken into consideration to determine the validity of the claim:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Sounds simple enough, right? As long as I am criticizing, teaching, reporting, and scholary-ing I don’t need permission from anyone for anything in my video, right? Wrong. It is a misunderstanding of this part of copyright law that gets people into trouble. Here are the most common misinterpretations of the law and some suggestions on how to approach fair use.
“As long as it’s fair use, no one can make a claim against me or sue me.”
Understanding this will probably ward off most YouTube copyright infringement claim headaches. Fair use is a defense against copyright infringement and not entirely compulsory, in that permission is not automatically granted by copyright law if copyrighted content being used within a set criteria stated within the law. Though the law is setting a limit on the exclusive rights of a copyright holder, these limits are not expressed as specific parameters such as percentages of a work used, commercial vs. non commercial, etc. in which copyrighted material can be used and be considered fair use. It does not protect you from legal action being taken against you, but instead protects you from being found guilty of copyright infringement. In reality, when a YouTuber is suspected of copyright infringement and they make a claim of fair use, the copyright holder isn’t thinking “this is fair use, there is nothing I can do” but instead, “do I even care that my work is being used and if I do, is it worth the time and effort to prove otherwise?” If they do not agree with you, they can make a claim as well, or decide to settle the matter in court. With that said, over the years precedents have been set by the courts, and reports have been written by the U.S. government that make it clear where a copyright holder would have no chance of winning, let alone even have the case heard by a judge.
The best way to decide how to proceed with copyrighted material is to simply ask yourself, “If the roles were reversed and someone was going to use my work in this manner, and could potentially profit from it, would I think it was fair use?” When answering this, think about if it was being used in a work you feel has little creative merit, or is perpetuating an opinion that is different from yours.
“If I use less than 30 seconds of a song I do not need permission from the copyright holder.”
This belief stems from a combination of misinterpreting the 3rd factor “…portion used in relation to the copyrighted work as a whole” and an understanding of how YouTube detects copyrighted music with their Content ID program. Just because someone uses a short clip of a copyrighted work, doesn’t mean it’s fair use. A clip by itself isn’t considered fair use unless it is used in one of manners mentioned in the law: commentary, education, etc. Even then the clip needs to be the subject of the commentating, educating, etc., in order to be considered fair use. Furthermore, if clips 30 seconds and under were not subject to copyright, then a company, say BMW, would not be required to license music for any of their ad spots on YouTube, not to mention TV, that contain 30 seconds or less of music, which is almost all of them. Does BMW license music for their 30 second ads? All the time. Also, think about the legal battles that take place in the music industry over sampling. A lot of times you are looking at lengthy litigation over something less than 5 seconds!
The second part of the 30 second confusion comes from YouTube Content ID. 30 seconds seems to be the length that YouTube needs to make a strong content match for music within a video. This somehow was interpreted as a green light to use as much music as you wanted as long as the clips were under 30 seconds. As we all know, just because you do not get caught, doesn’t mean it’s OK. Also, even if you do not get caught by the Content ID Program, copyright holders have ways to find you, but that’s another article.
Best way to prevent this causing you a headache is to just not do it, unless of course you have a strong case to prove fair use.
“My video is a tutorial and is therefore educational. In the spirit of teaching, I do not need permission to use copyrighted material in my video.”
There is some truth to this so it is understandable why this could be confusing. If we were to look at the law, it does say teaching specifically, however it intends for the the usage of a work to directly relate to the teaching that is taking place. For instance, if you are making a tutorial video of how to edit in Adobe Premiere, you have a strong case to show Adobe’s copyrighted interface, editing tools and trademarks, but if you want to liven things up by grabbing a cue from the Dark Knight soundtrack, your fair use claim to use the music, is invalid. The argument against you is that even though it’s next to impossible to teach someone how to use Adobe Premiere without some visual reference to the application, it is not necessary to include the music. You are teaching how to edit in Premiere, not analyzing the Hans Zimmer’s use of low brass in the Batman Score. Just ask Michelle Phan about this one. Though her makeup tutorials are considered educational, the music that was included to liven things up was not necessary to teach how to apply makeup.
To avoid claims on your educational videos, make sure you use only what is needed to teach the subject matter rather than throwing in copyrighted material to make the subject less boring. i.e. using Mötley Crüe’s “Kickstart My Heart” for your tutorial on how to use a defibrillator.
For a good example of using recorded music for educational purposes, check out the clips used in Wikipedia articles about the Beatles. The usage and fair use defense is outlined very well.
“My video is commentary/criticism and I do not need permission to use copyrighted material in my video.”
Now that you know the issue with claims on copyrighted music in educational videos, this will be very easy to understand. Just like educational videos, the copyrighted material in critiques and commentary must be the focus subject. When it comes to music, unless you are addressing the specific sections of a song being played, you will have very little protection of fair use. Again, ask yourself: “Do I need this music to teach this subject, or do I just want to be less boring?” As I have mentioned elsewhere, using copyrighted material in the spirit of being less boring is not a valid defense.
“My video is a parody of a song and that’s protected by fair use AND the First Amendment. Take that!”
Not gonna lie, this is complicated and deserves special attention. But in summary, much like the above scenarios, a copyrighted work must be the subject of a parody in order to be fair use. In music, this is even more complicated because there are multiple copyrights involved with a recorded song, which would be the sound recording and the composition itself. Also, something being parodied vs. what is just satire is always open to debate. We will write a lengthy article about this soon, so in the meantime, consider this:
- A lot of time parody defenses are about the permission to use copyrighted music, and not about using material for free. This is because parodies can not be recorded and distributed with a mechanical license because it can be considered a derivative work.
- Weird Al Yankovic always gets permission from artists and songwriters ahead of time and always gives them the writing credit to songs he parodies.
- It is very difficult to create a parody of a sound recording, so it is always recommended to create your own recording of a backing tracks for a song parody.
With all this said, what do I do?
You can see from many of the above scenarios, many types of work that have elements that are considered fair use, the music itself very well may not be. Hopefully, you have a better understanding of fair use and how it applies to your content creation on YouTube. Just remember that it’s always best to seek permission for the use of copyrighted music and when that is not possible or becomes uneconomical, find alternatives. There are royalty free music libraries such as Muserk that allow you to license music online, fast and easy.