Fair Use Content: When is it Okay to Use Copyrighted Material in Your Video?

April 25, 2018

For many commercial content creators, the urge to use someone else’s content can be a powerful one. Maybe it’s a track of music from an obscure indie band, or that breathtaking time lapse you found on YouTube. One voice in your head says: go ahead use it, your client will think you’re brilliant, and nobody will ever know that it’s stolen. The other voice in your head says: don’t do it, why risk it?

Let me reinforce the voice that says: Don’t do it! Today video is circulated through a vast number of outlets and you never know where it could end up. That obscure music track from the indie band could be topping the charts six months from now. Think about it, what if your client gets a take down notice from YouTube or Vimeo? Or worse, what if someone goes after your client for copyright infringement? Yeah, pretty embarrassing on your part, huh? Especially when they entrusted you with their brand and their good name. If those things aren’t bad enough, ask yourself how you’d feel if someone, without your permission, used your work for their own interest? Maybe they even used it for a political, economic or social cause that you’re totally opposed to? I’m guessing it would probably make you pretty angry, and rightfully so.

Using-Copywrited-MaterialsSo what are the rules for using copyrighted materials?

Well, there is no easy way to answer that question. The Fair Use Doctrine is part of the United States copyright law and it allows creators to incorporate copyrighted material into their work, without obtaining the permission of the copyright owner, when “certain” conditions are met. But even still, the distinction between what’s considered Fair Use and Copyright Infringement is not easily defined.

Define-Your-VideoThe first thing you should do is define your video as commercial or non-commercial.

Non-commercial videos have a lot more “fair use” leeway than commercial videos. If you define your video as commercial, your options for using copyrighted material narrows dramatically. A commercial video is defined as anything that seeks to make money or promote a product or brand. These would include corporate videos for the sales and marketing of a particular company (or products or services that the company provides) – including training, product launches, product demonstrations, etc.

Fair-Use-Copywrite-StatuteThe Fair Use copyright statute gives us four factors to apply on a case-by-case basis.

Vimeo – an online video platform similar to YouTube – defines these four conditions as follows. By the way, I am not a lawyer… please seek legal advice for situations where you need it.

1. The purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes.
In other words, does your video alter the original work to give it a new meaning or shed new light on it? Uses that directly appraise or comment on the original work are more likely to be transformative because they add a new meaning or message. On the other hand, are you using the material because you needed to put something in a particular scene, and the copyrighted work happens to fit? Such uses will probably point away from fair use.

2. The nature of the copyrighted work.
What type of copyrighted work are you using? This factor focuses on the content that is being re-used. It weighs against fair use if the original work is highly creative (like a song, movie, or TV show), and will weigh toward fair use if the original work is less creative (like a phone directory, scientific data, or quotes from a historical record).

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
How much of the copyrighted work are you using? Is the portion you are using the “heart” of the original work?

Generally speaking, using a great deal of the copyrighted work weighs against fair use. Less extensive use generally weighs in favor of fair use. What is considered extensive depends on the total size of the copyrighted work at issue. There are no clear percentages or calculations that decide how much is too much or where fair use ends and copyright infringement begins. In addition, even relatively small uses can point against fair use if that small use is the “heart” of the work, such as a famous riff in a song or the climactic ending of a film.

4. The effect of the use upon the potential market for or value of the copyrighted work.
Can your use of the copyrighted work stand as a potential substitute for the original?

Uses that might negatively affect the market for the original work strongly weigh against fair use. Uses that have little to no effect will generally weigh in favor of fair use.

​If people could watch your video instead of the original work, this factor is less likely to favor you. The point of fair use is to encourage the creation of more and better works of art, not to enable you to profit from works of others.

As you can see, there’s still a great deal of grey area with regard to commercial video. I find the best and safest way to create content for corporate video is to create it myself. A little imagination and the right gear, and you can create something completely original. But for those times when you absolutely must use copywriten materials, you have a couple of choices.

  1. You can get written permission from the copyright holder, but unless you’re a real sweet talker, this option can be cost prohibitive.
  2. Another resource is Creative Commons. Its combination of search tools and users offers a pool of content that can be copied, distributed, edited, remixed and built upon all within the boundaries of copyright law. I use Creative Commons all the time. 

If you’d like more information about fair use and copyright laws, check out the U.S. Government’s official word on the subject. Stanford University also offers a pretty comprehensive overview that’s worth a look.

In my next blog I’ll be talking about how to navigate through the vast amount of Creative Common content, and some creative techniques for transforming them into compelling content.