QUESTION OF THE MONTH: Using Copyrighted Material for Commenting and Illustration

QUESTION:

Dear Center for Social Media,

When comedy and commentary shows like the "Daily Show" use video clips of tv shows and news coverage to comment on the copyrighted material either directly or indirectly, is this protected under Fair Use? There are youtube content creators who use copyrighted pictures (of celebrities, magazine covers, tv shows, etc) superimposed next to a talking head to illustrate the person or topic they are commenting about. They do this much in the same way news anchors and shows like "Daily Show" do. Does this count as protected Fair Use? What does a content creator need to do if presented with a takedown notice from youtube even if their use of copyrighted material falls under Fair Use? I have heard that youtube will automatically issue a takedown notice if notified by the copyright holder of the original work being commented on, even if it qualifies as Fair Use. Furthermore, youtube partners (content creators who recieve some profits from their videos) must forgo their right to Fair Use to get a cut of the profits!

Thanks

Brandon

ANSWER:

Broadcasters who, like Jon Stewart, quote for reference are indeed employing their Fair Use rights. Broadcasting is an arena in which Fair Use is extremely robust, partly because it has been so actively employed for so long. Any creator, not just broadcasters, has Fair Use rights, but they may not be as well aware of them as broadcasters are.

I don’t know where you’re getting your information on YouTube posters, but let me share with you what we do know. The Code of Best Practices in Fair Use for Online Video summarizes when it’s clearly Fair Use to quote copyrighted material in an online video. The kinds of uses you describe are definitely included, although you should read the Code and note both the principles and the limitations; Fair Use is a case by case decision, and context is paramount, so neither we nor anyone else can give any blanket assurances.

YouTube posters who repurpose copyrighted material under Fair Use may indeed suffer from a “takedown” requested by a copyright holder. This copyright holder may well have issued the takedown because of an automatic, robotic search for copyrighted material, and no human being may even have seen the work. People who suffer such a “takedown” have the right to demand reinstatement of their work. If they do, they expose themselves to the risk that the copyright holder may then pursue them. However, if they are using copyrighted material within the terms of the Code—if they have applied the principles and limitations to their case—they can comfortably assume that large media companies also know the law, and will not pursue legal action.

I hope this helps you clarify your Fair Use rights in these cases.

Center for Social Media