How to Avoid a YouTube Copyright Breach | The Influence
This article summarises the law as it relates to YouTube copyright breaches, how to avoid crossing the copyright line, and how you can improve your chances of being able to monetize your YouTube channel.
Many YouTube creators live in fear of the dreaded ‘copyright strike’. Getting enough of them can result in losing the revenue from their videos, having the videos taken down, or in the case of repeated violations having their entire account deleted. The simple way to upload a video to YouTube without copyright infringement is to create entirely original content. But if you do plan on using some copyright content in your clips, the one concept you must understand is ‘fair use’.
What Is Fair Use on YouTube?
YouTube copyright infringement rules are loosely based (they are a private company so they are free to set their own policies) on the fair use doctrine associated with US copyright law. To determine ‘fair use’ of copyrighted material and avoid a YouTube copyright breach, you must consider:
The purpose and character of the new work: To use copyrighted work ‘fairly,’ it must be transformative; that is, it must be used to create something new and different in purpose and character, not just a verbatim or near-verbatim copy of the original. Material can be considered transformed if new additions or insights have been added, or if the original material is the subject of review or commentary.
Consider the many YouTube ‘reaction’ videos. They are a perfect example of fair use in that the original music or movie clips are being critiqued or reviewed.
Another popular transformative fair use is a parody or satire that resembles or incorporates the original work. Parody is a very broad category and is also an area where the concept of fair use gets a lot of leeway. In a nutshell, a parody is an original piece that imitates or even incorporates distinctive elements of another content creator’s work.
Another way to avoid a YouTube copyright breach is to use the original material for education or news reporting purposes. This is considered to be transformative and therefore fair use.
The nature of the original work: It is more likely that facts from a nonfiction work can be used more fairly than passages from a work of fiction. It is generally believed that the dissemination of facts and information benefits the public, but also that a creator has the right to control the use of their content.
The amount of the original work used: Reproducing a large part of an original work is not generally considered fair use, with the exception of parody (since an effective parody requires the audience to recognize the original work). Using smaller snippets of copyrighted work that support your own work rather than reproduce the original is more likely to be considered fair use. There is a de minimis legal defence that sets forth the idea that the use of the copyrighted content is so minimal that it doesn’t even need to be considered.
There is a counter to that legal argument, though, and that is if the copyright segment used is the ‘heart’ of the new work. This means that if the core, centrepiece, or pivotal scene in your new clip — even though brief — is the copyright clip, then fair use may not apply.
The effect on the market: Content is copyrighted in large part so that the original content creator can benefit from their work. If your use of the content can be seen as a way to reduce the market for the original work, it may not be considered fair use.
Fair Use on YouTube — steps to follow
Now that you have a better idea of what is legitimately fair use and what is not, what are the main things you can do to make sure that your YouTube videos are less likely to be challenged for copyright breach?
Step 1. Use as little copyrighted work as possible
Consider how much of the copyrighted content you actually need to reproduce. Do you need to show 10 minutes of a 15-minute video, or will your purpose be served by showing two or three short clips that just hit the high points? It’s much more likely to be considered fair use if you use bits and pieces of copyrighted material to illustrate or emphasize points that you want to make, rather than inviting viewers to watch someone else’s work on your channel.
Step 2. Add as much original content as possible
Make sure that you add your own content so that you transform the material into your own. You can do this by editing the copyrighted piece to reflect your own style. You can also add significant commentary, either positive or negative, so that it’s clear that you want your viewers to benefit from your thoughts on the original copyrighted content, not just the original content itself.
Education and scholarship is another fair use justification for using copyrighted material, so you should be sure to draw a conclusion or make some other type of point of your own. Remember, too, that education and commentary does not have to be complimentary. It’s very valid to explain what you did not like about the original work and why.
Step 3. Change the context
Using the copyrighted material out of its original context is another way to transform your piece and demonstrate that you are adding value to it. If you used footage from a music video to illustrate a political point, for instance, that is likely transformative and therefore fair use because you are adding nuance and new meaning to the music.
Top 3 myths about avoiding YouTube copyright strikes
1. Crediting the original copyright owner in the video description prevents a copyright strike
It doesn’t hurt, but it doesn’t help either. If you merely load somebody else’s clip into your channel without transforming it in the ways mentioned above, it is still a copyright breach. And besides, there’s almost a zero chance you actually know who owns the copyright to a Marvel movie or a top 20 song.
2. Writing a disclaimer notice removes your liability
Writing things like ‘no copyright infringement intended’, ‘for entertainment purposes only,’ or ‘all rights to owner’ in your YouTube description doesn’t help. If you are breaching copyright, simply writing that you didn’t mean to breach copyright is not a defence.
There is a little more leeway here. For example, if your channel’s focus is on education, you’re not asking to monetize, and you’re adding your own content and/or narration as covered in the tips above, then you improve your chances of avoiding a copyright breach. But this does not mean you can just upload a David Attenborough documentary like this example below and expect to get away with it.
How long does copyright last?
So why not just wait until the copyright expires — it’ll probably only be a couple of years right? Wrong. In the US and most other territories, copyright lasts for the life of the person who created the work, plus an additional 70 years. So in the case of a movie from the 1980s — let’s say its writer died in 2010. That copyright will enter what is known as ‘public domain’ sometime in the year 2080. You can’t wait that long.
The copyright ownership of movies, tv shows or music is usually held by big studios like Universal, Sony or Warner Brothers. They purchase the rights to scripts they produce, or they have writers creating scripts under ‘work for hire’ agreements. Here the writer is paid a salary to write a script and the copyright ownership is automatically assigned to the company that pays for it. If you have a big enough budget, this is actually good news, as these companies want the copyrights they own to keep earning, so they will license the copyright to you if the price is right.
Is there any no-copyright footage I can use?
Any footage from a TV show, movie or video game will be copyright and difficult to license. But if, for example, you want to create a channel about nature, space exploration or travel, you can easily find copyright-cleared royalty-free footage from sites like Storyblocks, Art Grid, Pexels and Pixabay.
On some sites, you will need to pay a license fee for this footage. Prices are around US$40–50 a month for all you can eat plans. Pixabay is free — but has a limited selection of clips.
Can you monetize royalty free videos on YouTube?
Monetizing royalty free video on YouTube is possible, but will require the addition of significant original work. You will not, for example, be able to edit together a selection of clips about space exploration, add a text to speech narration and expect to monetize this.
Both the clips and the narration will be identified by YouTube as reused. The ability to monetize would require only a small percentage of your overall clip to be royalty-free footage. For example, if you are creating content for a travel channel, some royalty free aerial shots of New York used as transitions between shots of your own original content shot on the streets of New York.
Include your own graphics, and your own original narration (or hire somebody on Upwork to narrate it for you). Only when a significant majority of the content of your clip is your own original content will YouTube monetization be possible.
With YouTube copyright strikes — there’s no guarantees
We’ve explained what fair use is and how to make sure that you’re using other content creators’ copyrighted work fairly. However, as stated in the beginning, YouTube is a private company and can make its own rules. They can delete or demonetize your channel even if a court might find that your work falls into fair use. It’s been suggested, and it’s probably true, that YouTube is more interested in protecting the channels and creators that bring in the big bucks.
Copyright strikes can happen even if you do everything right, and it may not feel fair, but that’s one of the risks we take if we expect YouTube or other video streaming platforms to protect our interests over theirs. YouTube doesn’t want to be sued by Paramount, Universal, or any other big media company, so they will err on the side of caution and in their favor if your clip attracts negative attention from a copyright owner. Still, if you understand and follow the guidelines laid out above, you’ll have a good argument to make if you do encounter a copyright strike.
Originally published at https://theinfluence.biz on February 1, 2021.
