Editorial: Is Fair Use Being Used Fairly On YouTube?
YouTube

Fair use is a term you usually only hear after accusations of plagiarism or outright theft are lobbed at a YouTube content creator. Despite this, everyone seems to know exactly what fair use means. However, so many of these people still incorrectly apply it to their content. This comes as no surprise to me as even lawyers can’t come to a consensus as to what is and isn’t fair use when it comes to YouTube videos. Things are even more contentious when it comes to YouTube commentators using written works in their videos. These include news or entertainment articles, lyrics, and books.

With that said, the best and easiest way to illustrate my point is to use an example from my own life. Recently I wrote an article about Alita Battle Angel as a rebuttal to an article from The Independent smearing the Alita fandom. The day after my article went live on One Angry Gamer a video by The Quartering went up in which Jeremy read about 90% of my article as a rebuttal to the article from the Independent. So, was the use of my article by The Quartering fair use?

Before we can begin to address that question we must answer a different one. Does my article have copyright protection? When the idea of this article popped into my head I actually didn’t know. So, I did some research and found out that even without a copyright registration my article indeed has copyright protection. According to LegalZoom “All websites and their content are inherently copyrighted, provided they are original works. Whether you decide to complete copyright registration for your website is your choice.” As my article was an original work, it indeed has copyright protection.

This brings us back to the crux of this article, was the use of my article by The Quartering fair use? In order to answer that we must first find how fair use is determined by the US government. Going to Copyright.gov we are able to find a page dedicated to Copyright Law of the United States (Title 17) Chapter 1, which is the chapter that contains the fair use exemption. Section 107 is where we find the fair use clause and I will include it in its entirety for you to read.

107. Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Now, before anyone tries to call me a hypocrite, I am in fact using this material in a proper fair use manner as I have cited my source, acknowledged who created it, and am using it for educational purposes. Furthermore, I will be commenting on it directly and thus I will have transformed the work. Normally I wouldn’t need to point that out but I’m sure there will be at least one keyboard warrior trying to pull a “gotcha” on me.

If you watched the video by The Quartering then you already know the answer is quite clear that it was not fair use. Jeremy did not comment, critique, or use my article for teaching or research purposes. Some might argue that The Quartering channel is effectively a news channel and so his use of my article would fall under news reporting. Admittedly I am unsure what is required to be classified as a news organization so I can’t say whether or not this angle would stand in court. However, I am willing to entertain the notion that The Quartering channel is indeed a news organization and it would be argued that it was fair use on these grounds.

That said, let us now go over each of the four factors and see if The Quartering’s use of my article in his video would be fair use as news reporting. The first factor listed for consideration deals with how the copyrighted material is used. A key factor being if the new work is transformative of the old. The 1994 supreme court decision in Campbell v. Acuff-Rose Music Inc asserted that when the purpose of use is transformative then the first factor is likely to be fair use. This case also amended a previous ruling in which it was held that all commercial uses of copyrighted materials is presumed unfair. I should note that reading or performing written work is not viewed as transformative. That said, my article was used as a means to rebut another article which is identical to it’s original purpose and thus its use was indeed unfair.

The second factor in determining whether or not this was fair use deals with what the nature of the original work itself. That is to say whether it is a fiction or non fiction work. Whether it contains facts or opinions. Whether the work is an idea. If the work rightfully belongs to the public domain. It also deals with whether or not the original work was published previously or not. My article was opinion, previously published, and of no interest to the public domain. So, once again the use of my article fails the fair use test.

The third factor of consideration is how much of the copyrighted material is used compared to how much there is overall. That is to say, what percentage of the copyrighted work was used. Although using as little of a copyrighted work as possible is generally viewed as the route to take it is not a guarantee that fair use will be granted. In fact, using the entire work could be fair use while only using a tiny fraction could be deemed unfair. This is partly do to how substantial to the overall work the part you used is viewed. As most of my article was read by Jeremy it is safe to say that its use would be deemed unfair.

The fourth factor in determining fair use takes the burden of proof off the accused and puts it on the accuser. It would be up to me to demonstrate how the use of my article in The Quartering’s video devalued my work. This is where things get a tad bit tricky for my claim. I am able to demonstrate that in the 1 day prior to Jeremy’s video my article had gotten 1,463 views and in the days afterward it has only received 487 views. However, I can not prove that this was due to the video. Additionally, as I am not the site owner I can not claim any loss revenue due to loss of views. The only angle I can pursue is that Jeremy’s use limited my name recognition and thus harmed my market value directly. I honestly can’t say one way or the other whether or not this would fall in my favor.

There is one huge loophole to the whole copyright mess that you can exploit to avoid all this mess. Reach out to the copyright holder and ask if you can use their work in your video. In case like this one, the odds are greatly in your favor that the copyright holder would be happy to let you use their work. In fact, Vara Dark discussed two of my articles on her talk stream after having asked previously if I was okay with her doing so. If you can not get a hold of the copyright holder for a written article in time for your video to go up then I suggest doing the following: Acknowledge who the copyright holder is, nine times out of ten it is the writer of the article, and where you got the copyrighted work. You can also put  link to the copyrighted work in your video description, though I am told that YouTube sometimes frowns on this, or on your other social media accounts. Lastly, contact the copyright holder after your video goes up so they can either agree to your use or ask you to take it down and avoid getting a copyright strike on your channel.

For those of you who want the TL:DR here it is: written articles fall under copyright protection and you should ask permission when using them in your videos or butthurt writers like me will write a long winded article discussing how bad you screwed up.

About

Tony the Gamer Dad or TonyTGD, has been a gamer since the days of Colecovision and Atarii and a video game journalist since the early 2000's. Having plied his trade over countless websites, online magazines, and his own personal blog he has come to One Angry Gamer to share his unique perspective of both an old school gamer and father to a teenage daughter. Ethical and honest, TonyTGD always gives his own opinion on games, despite how big or small the developers behind it are. Need to get in touch? Feel free to use the contact page

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