By now you may have seen some recent reports in the media regarding YouTube’s purported willingness to defend “some” of their users regarding claims of “fair use” involving (certain) uploaded material. YouTube will purportedly pay up to a million dollars in legal fees in some of these situations although the exact nature of this “coverage” is as yet, difficult to discern.

Lest there be any doubt, this posture does not apply to everyone but rather just to users who may satisfy the four part fair use test. The “test” consists of four factors:

• the purpose and character of the use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
• the effect of the use upon the potential market

These are just the legal guidelines that judges use, but judges have a huge amount of discretion on how to interpret those guidelines. They can weigh one factor more than others in one case and ignore that factor in another case. That makes figuring out what qualifies as a fair use difficult and thus it requires a determination on a case-by-case, fact-by-fact basis.

To be fair (pun intended), YouTube has posted four myths about fair use, that are spot on in declaring these defenses are fairly useless in defending an upload (a theft) of someone else’s work. The myths, as per YouTube, are:

Myth #1: If I give credit to the copyright owner, my use is automatically fair use.

Myth #2: If I post a disclaimer on my video, my use is fair use.

Myth #3: “Entertainment” or “non-profit” uses are automatically fair use.

Myth #4: If I add any original material I created to someone else’s copyrighted work, my use is fair use.

They are but four of the many myths about the photo business which should have been killed off by now, but like Dracula they live on. They are buried away (yet another clever pun) in the piece on YouTube’s site and thus don’t pack the punch they should. It reminds us of those drug inserts that are required to state the side effects of the medication, but that portion is printed in teeny, tiny type – or in legal terms, “type so small that you elect not to read it because you don’t have a magnifying glass handy”.

Defending legitimate fair use claims is likely a smart decision by YouTube. One view is that the policy makes YouTube a winner in the long run, even if they lose in the short run. Read on and we’ll explain how we interpret what we have seen thus far.

What initially caught our attention is that YouTube terms the people uploading the videos at issue, “creators”. We take exception to that, in that these people are not creators.  The issue is that they are uploading videos created by others. The uploaded video is not their own creative work. Hence the ultimate question remains, “Do these uses of other creators work satisfy the fair use test”?

That’s a whole discussion for another time because each “fair use” case is “fact sensitive”. There is no one size fits all answer to the question of what constitutes fair use of someone else’s work. Even if what they upload does qualify as fair use, our contention is that they are not “creators” by any definition of the word.  They may be commentators, critics, or a whole bevy of other nouns but “creators” is not in our opinion, one of them. It’s insulting to those film makers, photographers, illustrators, artists and authors who actually imagine and then create original pieces of intellectual property in a tangible form like a video.

Taking someone else’s work and building on it, often becomes artistic “navel glazing”.  Using other people’s work in your work or comments can be legally OK in some cases and in other cases can get you sued big. Morally and/or legally wrong is that stepping on someone else’s work, “appropriation” as infringers like to term what we call stealing, has taken on the air of being OK in this era.

Art critic for New York Magazine, the respected Jerry Saltz, described it best in an article titled “Generation Blank”, where he said, “A feedback loop has formed; art is turned into a fixed shell game, moving the same pieces around a limited board. All this work is highly competent, extremely informed, and supremely cerebral. But it ends up part of some mannered International School of Silly Art.” He also contends this is not being creative, just repetitive. We agree with that view.

As we incessantly remind you, registering your work gives you the protection of the Copyright Law which provides you multiple remedies including the ability to collect money damages in the event the “appropriation” (a/k/a stealing) is determined to be an infringement of your copyright and not a legit fair use.

Fair use is very specific and very vague at the same time.  If that statement sounds confusing, it is because it is. The courts adjudicate such matters and every case is very fact specific. Not one of the four factors listed above, in and by itself, constitutes a “fair use”. There is no crystal clear line that a judge can employ to decide that one of the factors is more important or should be given more legal weight than any of the others. They can state in one case that “the effect of the use upon the potential market” is critical and the crux of the case. And in their next case, that point may be minimal in it’s weight.

Case number one- critical, case number 2 – meh.

There is simply no clear line as to what is and what isn’t a “fair use”. Each case has to be looked at separately and each case has it’s own set of issues, facts and circumstances. Rarely can you point to one case and then use it as a blanket decision for similar cases.  “Yes” we do know that we have repeated that point several times. We do that because it bears repeating.

Why is YouTube willing to commit so much money to defend a few of their users? It is their attempt to have people believe that more videos are fair use than actually are fair use. They are trying to expand the perception of what is fair use. Not the reality of fair use, but the perception of it in order to have more people upload more videos, fair use or not. The simple answer – they make more money with more users and more uploads. More views typically generate more advertising income. A rather simple formula that holds true in the vast majority of cases.  

YouTube is not looking to be the defender/white knight regarding the issue.  They’re sort of saying “Upload them all and we’ll sort it out later”, because they can make a fortune as a result of the uploading. And even if they’re wrong on a video and they do have to take down a video, how many people will want to see the video that’s causing the ruckus? The answer is “lots and lots.” We’re talking Kardashian numbers.

In the Internet world of branding and selling impressions, controversy attracts eyeballs. So even if it loses with their defense in a given instance, YouTube will probably still win and profit. It’s like going to a “Guess Your Weight” game at the local county fair or carnival. If the game barker “loses” and doesn’t guess your weight correctly, you win a $1.98 stuffed animal for the $5 it cost to play the game. The house wins no matter if they win or lose the game itself. YouTube will always come out ahead, right or wrong, when they defends both their good or bad uploads.

Here we have yet another reason for creators to register their work (as we keep saying until we’re blue in the face) so they can benefit regardless of how things may turn out in court for YouTube.