By now you may have seen some recent reports in the media regarding\u00a0YouTube’s purported willingness to\u00a0defend \u201csome\u201d of their users regarding claims of \u201cfair use\u201d\u00a0involving (certain)\u00a0uploaded material.\u00a0YouTube will purportedly pay up to\u00a0a million dollars in\u00a0legal fees in some of these situations although the exact nature of this “coverage” is as yet, difficult to discern.<\/p>\n
Lest there be any doubt, this posture does not apply to everyone\u00a0but rather just to users\u00a0who may<\/em> satisfy the four part\u00a0fair use test.\u00a0The \u201ctest\u201d consists of four factors:<\/p>\n 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.<\/p>\n To be fair (pun intended),\u00a0YouTube has posted four myths\u00a0about fair use, that are spot on in declaring these defenses are fairly useless in defending an upload (a theft) of someone else\u2019s work. The myths, as per YouTube, are:<\/p>\n Myth #1: If I give credit to the copyright owner, my use is automatically fair use.<\/em><\/p>\n Myth #2: If I post a disclaimer on my video, my use is fair use.<\/em><\/p>\n Myth #3: \u201cEntertainment\u201d or \u201cnon-profit\u201d uses are automatically fair use.<\/em><\/p>\n Myth #4: If I add any original material I created to someone else\u2019s copyrighted work, my use is fair use.<\/em><\/p>\n 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.\u00a0They are buried away (yet\u00a0another<\/em>\u00a0clever pun) in the\u00a0piece on YouTube’s site and thus don’t pack the punch they should. It reminds us of those drug inserts that are\u00a0required to state the side effects of\u00a0the medication, but that portion is\u00a0printed 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”.<\/p>\n Defending legitimate fair use claims is likely a smart decision by YouTube.\u00a0One view is that the policy makes YouTube a winner\u00a0in\u00a0the long run, even if they lose\u00a0in the short run.\u00a0Read on and we\u2019ll explain how we interpret what we have seen thus far.<\/p>\n What initially\u00a0caught our attention\u00a0is that YouTube\u00a0terms the people uploading the videos at issue,\u00a0\u201ccreators\u201d. We take exception to that, in that these people are\u00a0not creators.\u00a0 The issue is\u00a0that they are uploading videos\u00a0created by others<\/em>.\u00a0The uploaded video is\u00a0not their own creative\u00a0work.\u00a0Hence\u00a0the ultimate question\u00a0remains, “Do these uses of other creators\u00a0work satisfy the\u00a0fair use test”?<\/p>\n That\u2019s a whole\u00a0discussion for another time because each “fair use” case is \u201cfact sensitive\u201d<\/em>.\u00a0There is no one size fits all answer to the question of what constitutes fair use of someone else\u2019s work. Even if what they upload does qualify as fair use, our contention is that they are not \u201ccreators\u201d by any definition of the word.\u00a0 They may be commentators, critics, or a whole bevy of\u00a0other nouns\u00a0but\u00a0\u201ccreators\u201d is not in our opinion, one of them. It\u2019s insulting to those film makers, photographers, illustrators, artists and authors who\u00a0actually imagine and\u00a0then create\u00a0original pieces of intellectual property in a tangible form like a video.<\/p>\n Taking someone else\u2019s work and building on it, often becomes artistic \u201cnavel glazing\u201d.\u00a0 Using other people\u2019s work in your work or comments can be legally OK in some cases and in other cases can get you sued big.\u00a0Morally and\/or legally wrong is that stepping on someone else\u2019s work, “appropriation” as infringers like to term what we call\u00a0stealing<\/em>, has taken on the air of being OK in this era.<\/p>\n Art critic for\u00a0New York<\/em>\u00a0<\/strong>Magazine,\u00a0<\/em>the respected Jerry Saltz, described it best in an article titled \u201cGeneration Blank\u201d, where he said, \u201cA 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.\u201d<\/em>\u00a0He also contends this is not being creative, just\u00a0repetitive. We agree with that view.<\/p>\n As we incessantly remind you, registering your work gives you the protection of the Copyright Law\u00a0which provides you multiple remedies including the ability to collect money damages in the event the “appropriation” (a\/k\/a\u00a0stealing<\/em>) is determined to be\u00a0an infringement of your copyright and not a legit fair use.<\/p>\n Fair use is very specific and very vague at the same time.\u00a0 If that statement sounds confusing, it is because it\u00a0is. The courts\u00a0adjudicate such matters and every case is very fact specific. Not one of the\u00a0four factors listed above, in and by itself, constitutes a\u00a0“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.<\/p>\n Case number one-\u00a0critical<\/em>, case number 2 –\u00a0meh<\/em>.<\/p>\n There is simply no clear line as to what is and what isn\u2019t a “fair use”. Each case has to be looked at separately and each case has it\u2019s own set of issues, facts and circumstances. Rarely\u00a0can you\u00a0point to one case\u00a0and then use it as a blanket decision for similar cases. \u00a0“Yes” we do know that we have repeated that point several times. We do that because it bears repeating.<\/p>\n 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<\/em> of what is fair use. Not the reality<\/em> 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.\u00a0\u00a0<\/strong><\/p>\n YouTube\u00a0is not looking to be the defender\/white knight regarding\u00a0the issue.\u00a0 They\u2019re sort of saying \u201cUpload them all and we\u2019ll sort it out later\u201d, because they can make a fortune as a result of the uploading. And even if they\u2019re 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\u00a0the ruckus? The answer is \u201clots and lots.\u201d We’re talking Kardashian numbers.<\/p>\n In the Internet world of branding and selling impressions, controversy\u00a0attracts eyeballs. So even if\u00a0it loses with their defense in a given instance,\u00a0YouTube will probably still win and profit. It\u2019s like going to a \u201cGuess Your Weight\u201d game at the local county fair or carnival. If the game barker \u201closes\u201d and doesn\u2019t 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.<\/p>\n Here we have yet another reason for creators to register their work (as we keep saying until we\u2019re blue in the face) so they can benefit regardless of how things may turn out in court for YouTube.<\/p>\n","protected":false},"excerpt":{"rendered":" By now you may have seen some recent reports in the media regarding\u00a0YouTube’s purported willingness to\u00a0defend \u201csome\u201d of their users regarding claims of \u201cfair use\u201d\u00a0involving (certain)\u00a0uploaded material.\u00a0YouTube will purportedly pay up to\u00a0a million dollars in\u00a0legal fees in some of these situations although the exact nature of this “coverage” is as yet, difficult to discern. Lest […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[151,1,100,15,20],"tags":[188,497,496,495],"class_list":["post-1552","post","type-post","status-publish","format-standard","hentry","category-be-aware","category-copyright-info","category-in-the-news","category-legal","category-stuff-you-should-know","tag-fair-use","tag-four-part-test","tag-myths-of-fair-use","tag-youtube"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1552","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1552"}],"version-history":[{"count":8,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1552\/revisions"}],"predecessor-version":[{"id":1560,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1552\/revisions\/1560"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1552"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1552"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1552"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n