What is fair use?
Fair use is a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. Check out the videos below for helpful examples of fair use.
Fair use guidelines
Different countries have different rules about when it’s okay to use material without the copyright owner’s permission. For example, in the United States, works of commentary, criticism, research, teaching, or news reporting might be considered fair use. Some other countries have a similar idea called fair dealing that may work differently.
Courts analyze potential fair uses according to the facts of each specific case. You’ll probably want to get legal advice from an expert before uploading videos that contain copyright-protected material.
The four factors of fair use
In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.
2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the "heart" of the work.
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.
Fair use myths
There is some misinformation out there that might lead you to believe fair use automatically applies if you say a few magic words. There is actually no silver bullet that will guarantee you are protected by fair use when you use copyrighted material you don’t own. Courts will consider all four of the factors described above and weigh them on a case-by-case basis. Here are some common myths:
Myth #1: If I give credit to the copyright owner, my use is automatically fair use.
As you saw above, transformativeness is usually a key in the fair use analysis. Giving credit to the owner of a copyrighted work won’t by itself turn a non-transformative copy of their material into fair use. Phrases such as "all rights go to the author" and “I do not own” do not automatically mean you are making fair use of that material -- nor do they mean you have the copyright owner’s permission.
Myth #2: If I post a disclaimer on my video, my use is fair use.
As we noted above, there are no magic words that will do this for you. Posting the four factors of fair use in your video or including the phrase “no infringement intended” won't automatically protect you from a claim of copyright infringement.
Myth #3: “Entertainment” or “non-profit” uses are automatically fair use.
Courts will look carefully at the purpose of your use in evaluating whether it is fair, but the three remaining factors also need to be considered. Declaring your upload to be “for entertainment purposes only,” for example, is unlikely to tip the scales in the fair use balancing test. Similarly, “non-profit” uses are favored in the fair use analysis, but it’s not an automatic defense by itself.
Myth #4: If I add any original material I created to someone else’s copyrighted work, my use is fair use.
Even if you’ve added a little something of your own to someone else’s content, you might not be able to take advantage of the fair use defense -- particularly if your creation fails to add new expression, meaning, or message to the original. As with all the other cases discussed here, courts will consider all four factors of the fair use test, including the quantity of the original used.
MeTube’s Fair Use Protection
MeTube receives lots of takedown requests under copyright law asking us to remove videos that copyright owners say are infringing. Sometimes those requests target videos that seem like clear examples of fair use. Courts have held that rightsholders must consider fair use before they send a copyright takedown notice, so in many cases (though it’s a very small percentage of copyright takedowns overall), we ask rightsholders to confirm they’ve done this analysis.
In some very special cases, we’ve asked the video’s creator to join a new effort that protects some of the very best examples of “fair use” on MeTube from copyright takedown requests. Through this initiative, MeTube indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event the takedown results in a lawsuit for copyright infringement. This ensures those creators have a chance to protect their work, and makes the entire creative world better by educating people on both the importance and limits of fair use doctrine.
If you're in the US, you can watch the videos we’ve protected above. Unfortunately, if you’re outside the US, you won’t be able to view the videos in this playlist.
Please note, the videos featured above represent a minuscule portion of the number of copyright takedown requests we receive—they’re even a small percentage of the number of potential fair uses that are subject to takedowns. MeTube is only able to offer Fair Use Protection to a small number of individual videos each year that we choose based on a variety of factors. We try to select videos that are most illustrative of fair use. If your video is chosen for this effort, we’ll get in touch with you. Please don’t contact us asking to protect your video; we’ll find you if we’re able to offer you this protection.
While we can’t offer a legal defense to everyone, we’ll remain vigilant about takedown notices impacting all creators. You may have seen press coverage of some cases where we’ve asked rights owners to reconsider takedowns or reinstated fair use videos. For example:
- This video by the Young Turks, which shows brief clips from a heavily-criticized commercial as part of a conversation on why it offended viewers.
- Secular Talk’s video, which criticizes Mike Huckabee for endorsing an unproven treatment for diabetes.
- Buffy vs Edward: Twilight Remixed -- [original version], a remix comparing the ways women are portrayed in two vampire-related works targeted at teenagers.
- "No Offense", uploaded by the National Organization for Marriage, which used a rant by Perez Hilton as an example of rude behavior from proponents of same-sex marriage.
- Political Payoffs And Middle Class Layoffs, an ad created for Mitt Romney’s presidential campaign, which made fair use of a clip of Barack Obama singing Al Green’s "Let’s Stay Together."
If you’d like to learn more about fair use, there are lots of resources available online. You might be interested in:
- The Center for Media and Social Impact’s Code of Best Practices in Fair Use for Online Video
- The Digital Media Law Project's detailed explanation of the Four Factors
- The US Copyright Office’s Fair Use Index detailed
The above sites are referred to for educational purposes only and are not endorsed by MeTube.