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Leo Wattenberg

Fair Use: A right to avoid

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Moin.

Fair Use is a thing that a lot of people say a lot of stuff about because it, in theory, gives you easy, cheap and uncomplicated access to high-quality content to implement into your video. Instead of trying to find the copyright owner and then trying to get broadcasting rights for it (worldwide? forever? that's gonna cost extra), you just download the thing and claim your use to be fair. 

The problem is, fair use is fuzzy, only exists in that form in the USA, and informing yourself about what it is and isn't is fairly difficult as everyone on the internet has an opinion on it without having proper qualification. Neither do I for that matter, I'm not a lawyer, but I spent the past half decade dealing with annoying copyright issues. But one thing at a time. 

1. Fair Use is fuzzy. 

The often-quoted four factors of fair use are guidelines for judges and juries, not for creators. There are no hard guidelines that you can follow, and should your case go to court, the verdict can differ greatly from judge to judge and on whether a jury is involved. 

Case in point: Ray William Johnson v. Jukin Media

Ray William Johnson's equals-three show (=3) was a show in which he would collect a bunch of viral videos from the web and comment on them, parody some of it and generally try to do stuff he thought was entertaining. Jukin Media, which buys exclusive rights of viral videos, didn't like that and sued him in 2014. In 2015 the verdict was in, and the judge ruled that 18/19 videos were fair use. However, the case went on and in the next instance, in 2016, a jury ruled that 40/40 videos were not fair use. It ultimately didn't matter for the case as RWJ and Jukin settled the case before the verdict was spoken, but it does show how quickly things can turn. Even if you're certain that your use is fair and a judge agrees, the next judge (and especially jury) may not agree. 

2. Fair use only exists in the US in that form. 

In other countries, the law simply may be different. For example, in the UK, there is a "fair dealing" law, which doesn't apply to everyone equally but rather has different requirements for private use, use as criticism, use as parody, and so on. As another example, in Germany, the "Freie Benutzung" law asks whether the original "verblasst" (~pales) in the new work

In other words, a video clearly being fair use may not help you if you're getting sued in not-the-USA. This is especially likely to happen if either you or the copyright holder lives outside the US. 

3. Informing yourself about fair use is difficult. 

Not only does the law change every so often, is fuzzy and different from country to country, it also is fairly easy to look for information on the internet and find information that seems to validate an existing belief of yours. If you believe that putting a disclaimer up in your video is going to help with anything, you'll find plenty of places telling you it is, but that won't help you in event of a strike or lawsuit. 

A slightly more reliable place are the court dockets which show the judge's arguments in a fairly straight-forward language (though you need to be careful as they tend to throw in normal-looking words that mean very specific things in law-speech and not their use in common language), but, as we have seen, the judge's decision seldom is final, and the original documents tend to be rather difficult to find. 

A better way is to get someone who knows the stuff (ie a copyright lawyer) to look over your video, as well as the footage you're trying to use fairly, and let them make a call on whether that's a stupid idea. Often, a first and rough answer will be delivered free of charge. 

 

With that in mind, here a bit of personal preference: What would I do if I wanted to incorporate some fair use footage into my video?

  1. Don't. It'll save a lot of headaches by making videos 100% on your own. 
  2. If it's necessary, try getting permission from the copyright holder. Often, the copyright holder is just happy that someone is paying attention to their content and will give permission for rather small uses. This is especially true for video games; a lot of game publishers have a thing somewhere on their website saying "you can use it in videos". 
  3. If the copyright holder won't give me a permission, or wants me to pay sums you can't afford, I'll ask myself as well as a lawyer how likely it is that the video is under fair use. 
  4. If both me and my lawyer find the video to be fair use, I'd think about whether I care enough about the video to potentially fight through several instances of courts until I'd finally reach a conclusion, with these things sometimes taking up to a decade to resolve fully. 
  5. If the video is more important to me than the potential time I'd spent on 4, I'd upload it. 

I am aware that the above is a result of a chilling effect: Don't exercise your rights, it's annoying. I am aware that in an ideal world, you'd skip point 1, 2 and 4 and just get someone competent to defend you and fight to the bitter end, accepting no settlement. But the time you'd have to spend on permission-getting, lawyer-asking and court-fighting could be much better spent on just being creative and making a different video that is yours, 100% yours and only yours. 

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