Fair Use on YouTube is a MYTH
23YouTube and Fair Use are not as straight forward as you may expect and can result in you and your YouTube channel receiving a copyright strike and/or even a DMCA takedown notice.
TO BE CLEAR: What I am talking about is very specifically fair use and YouTube. I am not talking about fair use in any other context outside of YouTube. So when I say there is no such specific law to support fair use, it's in reference to typical YouTube content.
While fair use may be argued and acknowledged in traditional media terms and more so, traditional news and reporting. Even in those instances it can still be a legal mine field if the legal copyright owner argues against it. So in effect, there really is no such thing as fair use, even in traditional media and publishing terms, because it is never a clearcut legal argument if the original copyright owner objects to it. Don't forget, the bigger the legal copyright owner is and their very expensive lawyers, the less chance you will have at arguing fair use.
Now with respect to YouTube the argument against fair use from the legal copyright owner's persepctive is a lot more straight forward. Because YouTube and Google work on the basis of showing adverts before, during and after a video on YouTube, it is very clear that money is being generated. Now it doesn't matter what amount, or if any, of that money is going to the YouTube channel. Money is still being made.
Now, if a legal copyright owner is aware of any of their copyrights, be they video, audio, music, pictures, photos etc. Being used in a commercial scenario where income is being generated, such as content on YouTube that may include any of their copyrighted materials. And if they did not give express permission or license, limited, exclusive or otherwise to the person/channel using their copyrighted material. They have the legal right to pursue a claim of copyright breach against that person/channel.
Seriously, it really is that simple.
Now you may think otherwise because you have seen many YouTube 'Gurus' and YouTube 'Marketing Specialist' or even people on YouTube claiming to be lawyers. Saying something different than I have just explained and indeed, they may even be telling you that fair use is your legal argument or right and it's a guarantee when it comes to YouTube. Well, they are completely wrong.
Now if you still don't believe what I am saying, consider these points.
Why do massive channels complain that they have been given copyright strikes or have been subject to DMCA takedowns if fair use is 'supposed' to protect them? Simple, Google and YouTube will never go against big copyrights owners and publishers, such as Universal UMG. Basically, when Universal UMG tell Google and YouTube to jump, Google and YouTube ask "how high?".
Now let's consider when a channel complains that all the Adsense income for their video that has breached copyrights within it, is all going to someone else, again, let's use Universal and UMG as the example of the legal copyright owner. And you may be wondering, well why did that channel not get a copyright strike or DMCA takedown, if the channel and their video were breaching copyrights? Well, once again that's simple. If you are Universal or UMG, why would you strike a channel or remove the content, when you can take 100% of the Adsense income? Don't forget, it's all about the money.
You may have also noticed some channels getting away with it. Well that may be because the use is insignificant to the copyright owner and they simply can't be bothered with the hassle and cost of pursuing it. Plus, they may not have noticed the breach yet. Which means that at any time the copyright owner can make a claim if they want. And to prove that point, many channels, such as Rick Beato, are now complaining that copyright strikes and DMCA takedowns are now being levied against them and their channels for content that is really old. In this instance, time is no defence either.
You may have seen some channels, especially some big channels, using loads of copyrighted material. Maybe movie clips, trailers, famous songs etc. Well the chances are that those channels have a legal agreement to do so and are sharing Adsense, or they may even be a subsidiary or an asset of a big media copyright owner or publisher.
Now there are many other examples I can give to prove that fair use and YouTube is simply a myth. However, consider those examples I have just given you as proof of my point.
So if you are making videos on YouTube, the only way you can protect yourself against copyright strikes and DMCA takedowns, based on breach of copyright. Is to not use any video, audio, music or pictures that you did not create yourself.
Now is this whole thing fair? Well I have some very strong opinions on that, which is too much to go into here but let me know in the comments if you'd like me to do a video about that.
Take care,
Dave.
Louis Rossmann @rossmanngroup
Gamers Nexus @GamersNexus