Half of the videos I find on YouTube always have some note in the description about how it’s totally legal for the creator to use songs from their favorite band as background music. Their reasoning tends to always be in the form of two words: fair use.
Unfortunately, this is often because of complete ignorance. Other times its just a total disregard for the law. Either way, most people don’t understand what fair use actually is, and in an effort to educate the general public, I’ve decided to pen a delightful article detailing what fair use actually is.
Gather around, children, for Papa Lockhart is going to tell you the story of the Four Determining Factors And The Big Bad Copyright Infringer.
The Four Determining Factors
According to USC Title 17, Section 107, there are four traits to consider when deciding if something is actually under fair use law:
- Purpose And Character Of The Derivative Work.
- Nature Of The Copyrighted Work.
- Amount Of The Copyrighted Work Used.
- Effect On The Potential Market Of The Copyrighted Work.
Some people like to skirt around the four determining factors, totally bending the rules to justify their own means. For instance, you’ll see people who say they don’t make any money from the derivative work. Sometimes they will say it’s “educational” without it having any academic value at all. This really doesn’t matter.
Bear in mind that the law doesn’t change according to your interpretation. It also doesn’t change for ignorance.
Disclaimer: this article isn’t legitimate legal advice. I’m not an attorney, nor would I even be a good one. Just make sure to contact a lawyer for professional legal consultation. Regardless, I feel as though I know fair use pretty well, and I’d like to break down the four determining factors for you.
Purpose & Character Of The Derivative Work
This is the factor that most people claim to have some knowledge about. However, the purpose and character of your work goes a bit deeper than “I don’t make money off this” or “this is for educational purposes”. Courts tend to decide if the derivative is meant to stimulate creativity of the public or solely bring personal profit to the author. Ultimately, you must decide if your new derivative work advances progress of the arts by adding something new.
This means you can’t just steal the work, and I’d even go as far to say that it extends into putting a popular song on a video. Unfortunately, even education is suffering in this area because profit can be made in this sector, but on the other hand, parody is protected. Do bear in mind that the next three factors apply even if you got by this one scott-free.
Nature Of The Copyrighted Work
While artistic value doesn’t matter to copyrighted work, fair use takes it into consideration (along with other items such as its fiction or nonfiction status). To keep it simple, you should ask yourself whether the resulting derivative work is creative or informative.
A work that can be considered creative (generally fiction) will likely fall out of favor with fair use. However, if it is something that is factual (generally nonfiction), you will be more likely to stay under the glorious umbrella that is fair use. Furthermore, this applies to work that hasn’t been published. Take secret letters from your Perlupian lover, for instance – it’s all protected.
Amount Of The Copyrighted Work Used
Admittedly, this is a bit of an unclear factor. The general rule is this - the less of the derivative work that is included, the better chance at qualifying for fair use it has. The key is to focus on how substantial it is.
For instance, if you publish an entire book that supposedly critiques another one, yet in the process you add the entirety of the critiqued work in your own, this is definitely copyright infringement. However, a simple attributed quote should be completely fine (just make sure you reference it).
Likewise for music, it seems as though everything is in the favor of record labels these days. For a video, I would apply for something called a sync license by writing to the label and explaining how you plan to use the music. If you are just making a fun video, they may let you use it without cost, but more often than not, you will have to pay.
Effect On The Potential Market Of The Copyrighted Work
Here’s the kicker: how does your derivative work affect the original creator’s income? There’s a lot of wiggle room here, and it’s typically not in the favor of the derivative work.
For example, consider how your creation affects search rankings online. Could it be possible that more people are watching your homemade lyric video instead of the official one? Let’s say that your video only got a thousand views in a month. Based on standard CPM prices, that’s $3-5 (minimum) that the artist’s company missed out on in advert income. Albeit small, this is lost revenue for the artist’s company. Even if it’s a small amount, your derivative work likely affects the product’s market in some way, and only the copyright holder can decide how much is too much.
Rationalization Often Results In Failure
All four of the above factors are taken into consideration when it comes to fair use, and I’m aware most of them are arbitrary. For the first three, use your gut, and I mean really use your gut. Don’t play the rationalization game. Usually, when you start rationalizing, you end up being wrong. The last one is pretty black and white when you get right down to it.
Some creatives may talk about how dirty it is that big media companies prevent consumers from using their work in derivative creations. I’ve done my share of using copyrighted music in the past (who hasn’t?), but to this argument I still say, “So what? They created it. They decide how it can be used.”
What is your opinion on fair use? Have you ever received a DMCA takedown notice?