What's Legal YouTube: Fair Use Vs Copyright Laws

In May 2008, Viacom brought a $1 billion lawsuit against YouTube for allegedly failing to protect the rights of copyright owners. The most common cases of copyright infringement involve using songs in a film or video without permission of the copyright holder, or placing segments of movies or music videos on websites where it is easy for the public to download them. Such actions have cost studios millions of dollars in royalties. Therefore, the giants of the entertainment industry have begun cracking down on websites such as YouTube.

YouTube, in response to these accusations, started to remove videos that may use segments of music or film without the copyright owner's permission. Accounts posting such videos have also been suspended. Fan videos that incorporate a celebrity picture slideshow using a song as the primary audio track and videos of musicians playing covers of famous songs are common examples of videos that have been deleted from YouTube as a result of alleged copyright infringement.

Besides the removal of the video and suspension of the account, penalties for such actions can be extreme. If a music company believes that posting such videos is music piracy, it can file suit and be awarded up to $150,000 per song. On the criminal side, jail time in federal prison is also a possibility for anyone convicted. Because of these harsh penalties – even though only a remote possibility – it is extremely important to protect yourself from any allegations of copyright infringement. Copyright violations are equivalent to theft, both legally and morally. Proving there is no infringement can take time and effort. Why risk the penalties?

If your work is for educational purposes, then use of copyrighted material falls under the "Fair Use" provision, which allows reasonable use of copyrighted work, without permission, for research, criticism, or education. A notice at the beginning or end of your production giving credit to copyright owners for their work is usually sufficient. Be aware, however, that not citing sources, or attempting to pass off copyrighted material as your own work, is not considered "fair use." It is plagiarism and can result in harsh penalties.

Works with expired copyrights are considered to be in the "public domain" and can be used without fear of liability of infringement. The major catch in this provision is that copyrights have very long terms before expiry. For example, any sound recording published in the United States after March 1989 will not be available to the public until March 2049 at the earliest. As of January 2009, the only sound recordings that are automatically available in the public domain are those published before 1923, and those published between February 15, 1972 and March 1989 without a copyright. All other recordings may be in the public domain, but further investigation would be required.

Both "fair use" and "public domain" are gray areas, making it difficult to ensure that you are not infringing the rights of others. The safest action to take is to get permission (usually a written contract, known as a license) from the copyright owner of any material being used in your video production.

The music labels commonly hold the copyrights for sound recordings. The Recording Industry Association of America (RIAA) is a major blanket organization that works with many major labels and is an excellent resource for you to obtain a license to use music as part of your production. Licensing agencies can aid in procuring a license. Examples of licensing agencies include The Harry Fox Agency, American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Incorporated (BMI) and Sound Exchange. Most licensing agencies are blanket agencies that cover many labels. To get licenses for just one or two songs, however, it is usually easiest to contact the individual label.

Licenses can be requested using a simple letter to the copyright owner asking for authority to use the copyrighted material. The letter should incorporate a complete explanation of the work to be used and how you will use it. Include a place in the letter for the owner to sign and send back a response.

Contributing editor Attorney Mark Levy specializes in intellectual property law. Saba Siddiqui is a senior in high school and a legal intern for Mark Levy. She plans to attend law school after university.

Editor's Note

Since Mr. Levy's story was first posted, as of late September 2009, Google (owner of YouTube) has now changed its rules regarding copyright. Google will begin to allow copyright content to remain up unless the copyright owner objects. This new decision comes in most part from a popular viral wedding dance video that has become Sony Music's 8th most popular song. Read more about the changes in our blog.