How Fair Use Applies To DMCA Takedowns On YouTube (Guide)
The Digital Millennium Copyright Act (DMCA) is a United States copyright law that provides a process for copyright holders to request the removal of infringing content online, known as issuing a “takedown notice”. YouTube relies on the DMCA to govern how copyrighted material can be used on the platform.
However, the DMCA also recognizes “fair use” – the limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship or research. Determining what constitutes fair use can be complex. This article will break down how fair use applies to DMCA takedowns on YouTube, with tips for creators on how to assess if their videos qualify as fair use and dispute incorrect copyright claims.
What is Fair Use
Fair use is a legal doctrine that allows the unlicensed use of copyright-protected works in certain circumstances. The precise boundaries of fair use are ambiguous and decided on a case-by-case basis.
To assess if a specific use of copyrighted material qualifies as fair use, courts evaluate four key factors:
Purpose and Character of the Use
Using copyrighted materials for transformative purposes that add new meaning or expression leans towards fair use. This includes parody, commentary, criticism or news reporting. Simply republishing copies of works for entertainment is less likely to qualify.
Nature of the Copyrighted Work
Using factual works like news reports is more likely to be fair use compared to highly-creative works like films or novels.
Amount and Substantiality
Borrowing small portions of a work, or insubstantial sections like background footage or music, weighs towards fair use. Using the “heart” of a work weighs against fair use.
Effect on the Market
If the use negatively impacts the copyright owner’s ability to profit from their work, this goes against fair use. However, transformative uses that don’t simply replace the original work in the market often qualify as fair use.
Weighing all four factors determines if a specific use case qualifies as fair use. Critically analyzing or commenting on small portions of copyrighted materials in a transformative, non-commercial video often constitutes fair use. Simply reuploading large portions of copyrighted materials without adding new expression typically does not.
Fair Use and DMCA Takedowns
YouTube’s copyright enforcement policy is separate from legal doctrines like fair use. Rights holders can issue DMCA takedown requests for any videos using their copyrighted content, regardless of whether it may qualify as fair use.
If you receive a copyright claim or strike from using what you believe to be fair use material, you can dispute the takedown by submitting a DMCA counter-notification to YouTube. This triggers a legal process for the copyright holder to take further action if they still believe the video infringes their rights.
Simply claiming fair use is not always enough to dispute a takedown. You must be able to make a valid legal argument for why your specific use case qualifies as fair use after analyzing the four factors. Having an understanding of precedent around fair use and copyright on YouTube can support your claim.
Tips for Fair Use on YouTube
Here are some best practices around fair use to consider when disputing DMCA takedowns:
Transform the Content
Add new expression, meaning or message to borrowed content through commentary, criticism, reporting, education or parody. This makes it more likely to qualify as fair use. Simply republishing clips with little or no changes weighs against fair use.
Use Short Portions
Only use as much as needed to make your point. Borrowing 1-2 minute clips rather than 10 minutes, or showing a few example images rather than an entire photoshoot, strengthens a fair use argument. The less substantial the portion, the better.
Attribute Properly
Always credit the copyright owner and link back to the original work in your video description. This shows good faith and helps demonstrate you are not simply republishing their work.
Avoid Commercial Use
Monetizing fair use content on YouTube is complex. Directly profiting from others’ work without permission weighs against fair use. If monetizing commentary or critique videos with short clips, ensure the original work itself is not the primary draw.
Be Precise in Disputes
Clearly explain how your specific use qualifies as fair use by analyzing the 4 factors when submitting dispute claims. Vague invocations of fair use are rarely successful. Provide precedent and point to similar cases protected as fair use.
Go Beyond Fair Use
See if the copyright owner has options for legal reuse of materials, like YouTube’s licensing storefront. Purchasing a license provides clearer permission compared to relying on fair use defenses.
Understand the Risks
Even clear fair use cases risk DMCA takedowns. Know that disputing claims is not guaranteed to succeed. Be prepared for videos to be taken down and strikes issued against accounts. This is part of the tradeoff for building an audience using others’ works.
Common Fair Use Issues on YouTube
Here are some common areas where questions around fair use often arise on YouTube:
Commentary and Criticism
Using short clips to comment on and analyze media is often considered fair use. Film essayists frequently dispute copyright claims successfully under fair use. However, commentary cannot simply republish full works or lengthy clips. Add value through transformative criticism.
News Reporting and Documentary
Reporting on events and issues with short embedded media clips tends to qualify as fair use, especially for current events. But docs and news segments simply reusing long clips without commentary or context shift towards infringement.
Parody and Satire
Humorous remixes and imitations of copyrighted works are protected as parody if they poke fun at the original. But the work itself cannot be the butt of the joke – it must comment on something external by altering the work significantly.
Education and Academics
Teachers, academics and students quoting copyrighted materials in instructional videos or lectures are typically protected under fair use. But reuploading full films or songs as “study content” without commentary does not qualify as critique or education.
Background Footage and Music
Incidental uses like background video or music often qualify as fair use if they aren’t the focus of the content. But actively promoting and highlighting these materials without permission can shift away from fair use.
FAQ Around Fair Use and DMCA Takedowns
What are the penalties for copyright infringement on YouTube?
Penalties escalate based on the number of strikes against your channel:
- 1 copyright strike = No penalty beyond video takedown.
- 2 copyright strikes = Loss of YouTube monetization for 2 weeks.
- 3 copyright strikes = Channel removed and terminated. Strikes expire after 90 days.
Can I dispute a copyright claim if I don’t have permission?
Yes, you can dispute videos containing copyrighted content without permission if you have a good faith belief it constitutes fair use. Be prepared to defend your position through the DMCA counter-notification process.
What happens if I lose a copyright dispute?
If your dispute is rejected, the claim against your video will stand. It may remain blocked or demonetized depending on the copyright owner’s preference. If penalties like channel strikes were incurred, these will also be upheld.
Can I edit out copyrighted content to resolve a dispute?
Yes, editing your video to remove infringing content is one way to address a copyright claim without going through the full disputes process. However this still counts as a strike against your channel if penalties were already incurred.
Can I purchase a license for retroactive copyright disputes?
No, licensing copyrighted content only gives you permission to use materials going forward. It does not dismiss existing infringement claims or strikes on your channel. Only formal dispute resolutions remove penalties.
Will my video stay taken down forever if I lose a dispute?
No. If your video dispute is rejected but no channel strikes issued, your video can be reinstated in a limited state within 7-14 days. This means it will remain blocked on certain platforms and devices, and you cannot monetize the content.
I hope this breakdown gives YouTube creators a better understanding of how to safely leverage copyrighted materials under fair use protections, as well as dispute overreaching DMCA takedowns confidently. Let me know if you have any other questions!
