Youtube and the “Fair Use” Copyright Exception

When I started this website, I entitled it The Tavern Blawg with the promise that it will, at least occasionally, touch on the “law” side of the “Blawg.” A few days ago, Polygon published an article (linked here) that found its way onto my twitter feed. The article discussed how Youtube will soon change the way it distributes the money that is earned during a copyright dispute.

I am new to Youtube (shameless self-plug here), so I found it surprising that the system was not as already proposed in the article. Then the cynical side of me decided it was actually not that surprising that Google would take any chance that it could to avoid paying out ad revenue. :/

In any event, the Polygon article included several comments by a Jim Sterling, who has, apparently, been “embroiled” with copyright claim disputes regarding his “Jimquisition” series’s use of video game footage. Jim explains that there is a purpose for his use of the video game footage, and points out that his videos run ad-free. Jim believes that the fact that a content-provider can issue a take-down of his videos, despite the fact that they do not monetize to be a flaw in the system. Jim also includes copyrighted works by competitors so as to dissuade any one company from running ads on his videos.

Jim’s comments and video (it is, admittedly, the only one I have seen) make me believe that he may not understand even the basics of copyright law. The Polygon article does not correct his apparent misunderstandings, and instead feeds into his point about not making money (glossing over the fact that the video’s critique appears to be with Youtube’s content ID system, not copyright law itself). I thought it would be beneficial to all my fellow Youtubers for me to write a little basic copyright law guide.

As a reminder: my posts are never meant to be construed as legal advice, however, copyright law is one area of law that tends to be very fact-specific, so this post is extra not legal advice. If you are in a copyright dispute, it is probably a good idea for you to contact a lawyer who practices in that area.

Pro tip: pretty much any legitimate attorney will you a free basic consultation (you describe your case, they decide if they can/want to help you, they tell you their rate, etc.).

Second pro tip: without getting into specifics, you can tell that attorney about your case without worrying about him/her stealing your idea, telling the other side, or getting you arrested. Attorney-client privilege generally applies even if the attorney does not end up taking the case, so feel free to speak freely.

I. General Copyright Protections
For the sake a brevity, insofar as that ship has not already sailed, I won’t get into the actually kind of fascinating history of copyright law (unsurprising spoiler: the Copyright Act was nicknamed the “Mickey Mouse Bill”), but to say that copyrights are based in the U.S. Constitution, and currently governed by the Copyright Act of 1976. For the curious, the whole act is available online here, but the fast-and-dirty version is as follows:

17 U.S.C. § 102 states, in relevant part, “Copyright protection subsists… for original works of authorship, fixed in any tangible medium of expression[.]” However, the section also explains that ideas themselves are not protected (nor are facts, discoveries, methods, or procedures). You may notice from the language, the interesting fact that copyright protections automatically apply when a work is created (unlike trademarks, which require registration). This means that all us content-creators have protections, even without legal teams at our disposal.

Section 106 gives the copyright holder the exclusive right to reproduce the copyrighted work, to create derivative works, to distribute copies of the work, and to perform the work publicly (if applicable), or to authorize another to do any of the above.

II. The Fair Use Exception
Taken on its face, section 106 is very broad in scope. However, one major exception to the general provisions described in section 106 is “fair use.” Fair use allows one to use copyrighted works without permission for criticism, comment, news reporting, teaching, scholarship, or research. Things to consider in determining whether a use is fair use include: 1) the purpose and character of the use (commercial versus nonprofit, educational); 2) the nature of the copyrighted work; 3) the amount of substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use on the potential market for or value of the copyrighted work.

Of important note, no one factor is “decisive”–all four must be considered. Moreover, each factor has its own tests and lingo, developed by courts over the years to help make sense of the whole process, the whole of which is far beyond the scope of this little post. One theme that is weaved throughout the courts’ analyses is the notion of “transformative” use; essentially looking at the policy behind copyrights and fair use of encouraging creativity, and deciding if the use is a new creation (by definition, the goal of the laws) or just a rip off (the premise being that rip-offs stifle creativity).

III. The Take-Away
A lot of people, including myself, post pictures or videos of game content under the claim of fair use. Jim Sterling, for instance, probably thinks his videos constitute fair use as criticism, comment, news reporting, and/or teaching. However, the article’s harping on the fact that Jim’s videos do not monetize is misleading–that is just one factor to be weighed. All content-producers should be aware that the fact that many of us don’t get paid for what we do does not protect us from liability and does not immunize us from take-downs. Another point to take-away is that most uses are weighed compared to the effect on the copyrighted work. That is, Jim’s use of other companies’s copyrighted works for the purpose of commenting on Nintendo may not be looked upon favorably by the courts. The most important take-away, however, is to talk to a lawyer if you are ever stuck in a situation involving copyright law, because there is A LOT more to it than mentioned here.

Author’s note: Please correct me if I am wrong, but I think I have a decent idea of what types of Hearthstone content people want to see/read. As a fan of the game myself, I think my own tastes are at least a moderate predictor of what readers want. With law, not so much. So please, please let me know if you want more, less, different, or same than what I’ve done here. Thanks for reading!


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