Qualifying for Fair Use When Criticizing YouTube Videos
Understanding fair use is crucial for anyone who wants to legally criticize or comment on YouTube videos. Fair use is a copyright principle that permits the unlicensed use of copyright-protected works under certain circumstances. When your use of copyrighted content from a YouTube video qualifies as fair use, you don’t need to get permission from the copyright holder.
This guide will explain what constitutes fair use, how to evaluate whether your use of a YouTube video qualifies as fair use, and tips for staying on the right side of copyright law when criticizing or commenting on YouTube videos.
What is Fair Use?
Fair use is a legal doctrine that provides an exception to copyright law, allowing the unlicensed use of copyright-protected works in certain circumstances. Fair use aims to balance the interests of copyright holders with the public interest in allowing reasonable uses of copyrighted works for purposes like criticism, commentary, news reporting, teaching, scholarship, and research.
There is no definitive rule for what constitutes fair use. Instead, fair use is determined on a case-by-case basis by evaluating four main factors:
The Purpose and Character of the Use
Using a copyrighted work for purposes like criticism, commentary, parody, news reporting, research, and scholarship is more likely to be considered fair use compared to using it for commercial purposes or pure entertainment value. Transformative uses are also more likely to qualify as fair use—this means the work is altered or repurposed in a way that adds new expression, meaning, or message.
The Nature of the Copyrighted Work
Using factual works like nonfiction books and news reports is more likely to be considered fair use compared to using highly creative works like novels, music, films, and visual art. This is because copyright law aims to provide greater protection to creative works.
The Amount and Substantiality of the Portion Used
Using a small amount of a copyrighted work is more likely to qualify as fair use compared to using a large portion. However, sometimes using a whole work or a substantial portion may still qualify as fair use depending on the purpose and character of the use. For example, it may be necessary to copy an entire photo for purposes of criticism and commentary.
The Effect of the Use Upon the Potential Market
If the use negatively impacts the current or potential market for the original copyrighted work, this weighs against fair use. However, transformative uses that don’t merely supersede the objects of the original creation typically do not have a significant market effect.
None of these factors alone determines whether a use is fair—all four must be evaluated together along with the specific facts of the situation. Additionally, fair use determinations are made on a case by case basis—each specific use must be individually evaluated for fair use qualification.
Now that we’ve covered the basics of fair use, let’s look at some best practices for leveraging fair use when criticizing or commenting on YouTube videos.
How to Qualify for Fair Use When Criticizing YouTube Videos
YouTube’s fair use guidelines recognize that fair use protects “commentary, criticism, news reporting, teaching, scholarship, and research.” However, YouTube warns that these uses are not automatically fair and must be evaluated based on the four fair use factors.
YouTube also notes that fair use evaluations are highly fact-specific—the inclusion of copyrighted content for criticism and commentary must be assessed individually for each upload. With this in mind, here are some best practices to consider when incorporating content from YouTube videos into your own critical or commentary uploads:
Use Only What is Necessary
One of the most important fair use considerations is to only use as much of the copyrighted content as is necessary to make your point. For criticism and commentary, this typically means short portions like clips rather than full videos. The less you use, the more likely it is to qualify as fair use.
Add New Meaning and Expression
Merely reposting someone else’s YouTube video without adding new expression or meaning is unlikely to qualify as fair use. But if you alter, remix, critique, or build upon the original content, this makes it more transformative which strengthens the fair use claim. Providing commentary and criticism in voiceovers or onscreen text can demonstrate you are adding new expression.
Attribute Properly
Always credit the sources of any copyrighted content you incorporate. This shows good faith and helps reinforce that your use is for purposes like commentary and criticism rather than merely repackaging the original work.
Avoid Commercial Uses
Using copyrighted content from YouTube for commercial purposes like selling ads against the content makes it less likely to qualify as fair use. While you can monetize videos that incorporate fair use content, the focus should remain on providing commentary and criticism rather than commercially exploiting the unlicensed content.
Don’t Impact the Original Work’s Market
If your use directly competes with or undercuts the market for the original work it weakens the fair use argument. Make sure your criticism and commentary don’t merely replace demand for the original. Adding new expression and meaning makes market substitution less likely.
Evaluating fair use can be complex, but focusing on these core best practices will help strengthen your case for qualifying for fair use protection.
Examples of YouTube Commentary and Criticism Qualifying as Fair Use
To better illustrate how to leverage fair use for YouTube commentary, let’s look at some real-world examples of videos that incorporated copyrighted content and qualified as fair use:
Movie Review Excerpts
In a case involving the movie studio Lions Gate, the court found that a professor’s use of short clips from movies in his online film criticism course qualified as fair use. This demonstrates that using short portions of video for purposes like commentary and criticism is likely fair use.
Video Game Review Commentary Videos
A federal court recently ruled that online gaming videos with voiceover commentary qualify as fair use even when they include short clips from the games. The commentary, editing, and context transformed the nature of the gaming content.
Movie Commentary and Review Channels
Channels like CinemaSins and Honest Trailers use short clips from movies along with comedic voiceovers critiquing and commenting on the films. Courts have upheld similar formats as fair use due to the transformative commentary adding new expression.
Political Commentary Videos
In a case involving the political commentary site PragerU, a federal court ruled that YouTube videos refuting and commenting on PragerU’s videos constituted fair use. The commentary and critique provided new expression and meaning.
As these examples illustrate, videos that incorporate short portions of copyrighted works for commentary and criticism can qualify for fair use protection. However, it’s still crucial to carefully evaluate each specific case based on the four factors.
Tips for Safely Exercising Fair Use Rights on YouTube
While fair use provides important rights to use copyrighted works without permission, it’s not a free pass. Here are some tips for safely exercising fair use rights when you upload YouTube videos:
Double Check Your Analysis
Carefully evaluate each video to ensure your use of copyrighted content would likely qualify as fair use based on the four factors highlighted earlier. Reassess when uploading new videos as facts and circumstances can change the analysis.
Understand Content ID and Disputes
YouTube uses an automated copyright enforcement system called Content ID which identifies uploads using third party copyrighted content and can lead to claims against your video. If you rely on fair use, you’ll need to dispute these claims and defend your right to incorporate the content. Understand this system so you’re prepared to state your case.
Describe Reliance on Fair Use in Video Descriptions
Specifically calling out that your video commentary relies on fair use protections in the video metadata and descriptions shows good faith and puts the copyright holder on notice regarding your legal position.
Be Ready to Defend Your Position
If a copyright owner disputes your fair use claim, you’ll need to provide a thorough explanation to YouTube regarding why you believe your specific use qualifies for protection. Understand the law, fair use best practices, and be ready to articulate your analysis.
Exercising fair use in real-world contexts involves increased responsibility. While fair use provides valuable rights to use works without permission, it’s not an excuse to ignore copyright protections. Weigh each use carefully, follow best practices, and be prepared to defend your position if challenged.
Fair Use FAQs
To help clarify some of the most common fair use questions surrounding YouTube commentary and criticism, here are answers to frequently asked questions:
How much of a YouTube video can I use without permission?
There are no hard-and-fast rules dictating specific time limits, but best practices dictate using the minimum amount necessary. Typically short clips of under 60 seconds are safer to defend as fair use provided your commentary adds new expression or meaning.
Can I use an entire YouTube video if I add commentary?
It’s riskier from a fair use standpoint to incorporate an entire video. Consider if short portions could sufficiently illustrate your commentary points instead. The less you use, the stronger your fair use claim.
Does fair use protect monetized YouTube videos?
Yes, you can still qualify for fair use even if your video is monetized through YouTube’s partner program. However, overly commercial uses weaken fair use arguments, so the focus should remain on commentary/criticism rather than exploiting the unlicensed content.
Could my video commentary ever not qualify as fair use?
Yes, fair use involves case-by-case analysis, so no format is automatically protected. Avoid overly long clips, insufficient commentary, or uses that impact the market for the original work. Get legal advice if you have any doubts about qualifying for fair use protections.
What if I get a copyright claim on my YouTube video?
Try disputing the claim with a thorough explanation of why your use qualifies as fair use. Provide context like video commentary demonstrating you added new expression. If the dispute is rejected, you’ll need to remove the content, edit your video, or risk a copyright strike.
Fair use analysis involves subjective interpretations and many gray areas. The above FAQs aim to provide general guidance, but obtaining legal counsel is advisable if you have specific questions regarding asserting fair use rights and defending against copyright claims.
Conclusion
Fair use provides important protections for free speech and commentary, but using copyrighted content always involves some degree of legal risk. When leveraging fair use to incorporate content from YouTube videos into your own commentary and criticism uploads, rely on best practices:
- Use only the amount necessary
- Add new expression and meaning
- Credit sources properly
- Avoid commercial exploitation
- Prevent market substitution
Carefully analyze each specific video based on the four fair use factors—purpose, nature, amount, and market impact. Understand YouTube’s copyright enforcement systems and be prepared to articulate your fair use rights if challenged. With a rigorous approach to relying on fair use, you can legally provide commentary and criticism even when incorporating copyrighted YouTube clips.
