Fair Use Explained by Legal Experts | Stanford CIS Q&A

[00:00:11]we're here today to answer your questions about fair use one of the best and the worst things about fair use is it flexibility it doesn't lend itself to easy answers in the abstract so the questions we answer today are fairly General and all we can provide is General guidance you shouldn't take this as legal advice we're lawyers but we're not here to give you legal advice today we can't tell you what you can and can't do in any specific circumstance so take today's discussion as general guidance things to consider and if you have specific questions about content and you're concerned about its legality consult a lawyer including us so what is fair use if you think about copyright as a series of restrictions fair use is a set of exceptions it protects your right to use copyrighted material in certain ways and it's not a trivial little technicality it's a fundamental part of the copyright bargain we don't give copyright owners unlimited control over their content we preserve a whole variety of uses and things that people get to do with copyrighted content without permission and fair use is really Above All Else a set of factors and considerations that help us figure out which things we carve out of the copyright Monopoly and which things we let people do without permission okay let's go through the basics as I said fair use is flexible and that's because it really turns on four factors that get considered together the first question fair use asks is what are you doing with the copyrighted content what is the nature of the use you're making and above all the most important consideration in that first factor is whether you're doing something transformative what does transformative mean it really means are you saying something new are you saying something different than the author of the original work you're borrowing from was trying to say the second Factor examines the nature of the material you're using if you're using fictional material or highly creative material then all things being equal you're going to have a little less room under the fair use analysis if you're using something that is less creative factual or non-fictional all things being the same you're going to have a little more room to use it under the fair use analysis the third factor in the fair use analysis looks at the amount you used from the origin it's not strictly the number of seconds or on a percentage basis the real question is whether the amount you used is reasonable in relation to the purpose for which you used it so the third factor is really going to vary based on the first there's some purposes where you may need a fairly large amount of material from the original maybe there are other purposes where you need less so the third Factor asks is the amount you borrowed reasonable in relation to the purpose for which you borrowed it the fourth fair use Factor examines the impact of your use on the market for the original first question is will your use substitute for the original will it reduce the sales reduce the market for original copies of the copyrighted work or for that matter even if it's not a substitute is it going to occupy markets that the copyright owner is entitled to exploit things like markets for sequels or other derivative works that we reserve to the copyright owner so to answer any fair use question you have to look at all four of these factors and figure out how they balance out and weigh out together there's not a single one that controls transformation is the most important but they all have to be weighed together to get to an answer now there's one consideration I want to emphasize separate and apart from the fair use analysis and that is the question of whether you'll be pursued or for that matter sued keep in mind that it doesn't necessarily matter whether your use is protected or not somebody can still sue you in fact you may have an unquestionably protected use somebody might steal you anyway or for that matter you might have a clearly unprotected use and maybe no one will choose to pursue it so you always have to remember that the question of whether fair use protect something or not is separate and different from the question of whether somebody might sue you for it and force you to prove up your right to do what you've done I'm here to talk about some common myths regarding fair use and one of the common beliefs about fair use is that if if you are making money or attempting to make money by uh using something that that is not a fair use or if you're not making money off of it then it automatically is a fair use this isn't a true distinction while whether something is commercial or non-commercial is one of the factors that goes into deciding whether a use is fair or not it is not a determinative factor so you can be doing something to make money whether it's um off of AD revenue or otherwise that can a fair use and many commercial Enterprises rely on fair use every day there are other uh uses that are non-commercial that are not fair use and um so the distinction between making money or not making money does not uh decide the question of whether a use is fair or Not Another common myth that people believe is that if you give credit to the original author then you aren't liable for copyright infringement or that giving credit is necessary to insulate you from a liability the law doesn't require that you give credit when you are using another person's work but it is often advised to give credit where you where you can I am at an event restaurant or other public place and a band or the radio is playing in the background but I do not intentionally record the band or radio I am filming something else the music is out of my control is this fair use yes often when you capture copyrighted material incidental to your uh videoing or recording of another scene or event the copyrighted material that you capture is a fair use so when you are at a restaurant or filming a family wedding for example and you capture some copyrighted song in the background the use of that song is uh often considered a fair use obviously the context and the amount of the use um there are other factors that go into each precise decision but incidental use of copyrighted material in the background is considered a fair use a movie was filmed in my city a few years ago I want to film some of the filming location to show people where each scene was filmed I want to play small clips of the movie side by side with my video is this fair use yes the use of movie clips in this example could be fair use and it depends on the precise uh amount of the movie clips that you're using and the way that they're used but from the description using movie clips as a reference to compare from the reality of the scene on the street to the scenes in the movie could be considered a fair use if I keep my video clip under a certain number of seconds am I in the clear fair use doesn't dictate a precise number of seconds that you can or can't use use and each situation is different the fair use tum provides enough flexibility to be able to use a different amount of material depending on your purpose so the rule that you really need to keep in mind is that the amount you use has to be reasonably related to the purpose for which you're using but there aren't any bright line rules about how many seconds is fair use and how many aren't does a parody video fall under fair use when the visuals are almost entirely from a non-original source cartoon gameplay but it is completely Rewritten and revoiced in a humorous manner parodies receive relatively strong protection under fair use one of the reasons is because a parody is fundamentally a criticism of the original and cases right up to the Supreme Court have provided relatively strong and Broad protection for parodies but you have to be careful about what a parody is people use the term loosely they try to use it as a um a magic shield to protect a use and you have to be precise a parody is something that holds the original up to ridicule you have to be saying something about the original presumably something negative or at least critical about the original by definition if you are parodying a visual work you are probably going to use a portion of that visual work so to answer your question yes if you're parodying an audio visual work then sure uh all things being equal fair use will probably give you a fair amount of leeway to use the material from that work remember a parody doesn't have to be funny it doesn't have to be successful um it may not even make any sense but it has to Target the original with some form of critique or ridicule so to get back to your question if the subject of your parody is a cartoon or a video game then presumably you're going to have to use um a fair amount of that cartoon or that video game to make your Pari so yes in general fair use will probably give you a relatively broad latitude to borrow from the original there par highly transformative um you have to be careful about not going overboard and not using much more than you need in relation to the purpose you're using it that is the critique the parody the ridicule and depends whether you're doing it for money or not but uh again doing it for profits not fatal and parody tends to Fair pretty well under the fair use analysis if I gra over an episode of a cartoon with my own voices and change the dialogue for par sake am I legally in the clear so that is a highly transformative use but again you have to be careful about whether it's a parody or not simply changing the dialogue and overdubbing it doesn't necessarily make it a parody it really depends on whether you're doing that to critique or ridicule the original but if you are then yes fair use is going to provide you pretty broad latitude provid that the other factors line up the right way um Factor two you'll probably have leeway even if it's a fairly creative or fictional work um the key is the third Factor don't go overboard don't borrow more than is reasonable to uh make the statement you want to make or the critique you want to make and the fourth Factor tends to work out pretty well when it comes to parity because the answer most courts give is we don't let the copyright owner monopolize the market for critique so if you're truly parodying and ridiculing the original and you don't go overboard with the amount you use then you're probably going to be in pretty good shape can one claim fair use preemptively when posting content to avoid takedowns also what non-court options are there for resolving a copyright fair use dispute well uh you could lay out your fair use Position preemptively will it avoid a take down not necessarily no way to guarantee that uh that's really up to the copyright owner but once you receive that takedown yeah there's an opportunity to open a dialogue with the copyright owner whose name and address you'll presumably have uh with with the takedown in hand so what what what's important to remember is that these are people on the other side of the permission question and it is possible that you can reach out to the folks who own the content explain why you're using it um why you think it's fair why you think it's legal and it's possible they'd see it your ways so it does present an opportunity to talk and work it out if that doesn't work you can counter notice at which point the copyright owner has to either sue you or if he doesn't sue you then the content goes back up if I am uploading YouTube videos of captured video and commentary of video games as I play them am I violating copyright well that's an interesting one because for years and years there has been just a ton a ton of activity where people play a video game and attach all sorts of commentary and put them up on YouTube there for a long long time people were doing that with Halo in fact people made I think a whole series um that where they played Halo to manipulate the characters um almost as if they were on stage and they added the dialogue and and and made a drama out of the gameplay that shows up on the screen uh probably pretty transformative that's quite different than the purpose for which the game was created I think it was created to destroy things I'm not sure but you're doing something very different than um Bungie was doing when it made Halo you're saying something new presumably this is not for profit uh is it fictional is it creative hard to say hard to say um in that case and the third Factor even goes Haywire because you know what is the whole work you know the video game could go on for 50 hours before you finish it but most fundamentally I think very few people would say that you are harming the market for for the original in any plausible Way by doing this especially if it's posted for Fun on YouTube or other sites on a nonprofit basis U and you can take some comfort in looking at whether other people have done this have been pursued or not so this is probably one of those questions that ends up in a gray area no clear yes no clear no but this sort of thing has been done and done widely without much repercussion on YouTube and so again going back to the question question uh is it legal or not hard to say no easy answer but it's also the sort of thing that for the most part copyright owners have left alone probably because at the end of the day it helps sales with a video game if I do a parody of a song can I use the same music exactly like the original as long as I or a music composer recreate it from scratch or does it have to actually sound a bit different like Conan's version of it's Friday did no there's there's a fair amount of latitude to use the actual music in fact one of the most famous fair use cases is one that went up to the Supreme Court when the two Live Crew did its own version of Roy orbison's Pretty Woman and in that case the court found it was a parody it was ridiculing the original and they had used a lot of the music from the original sound recording they had Roy orbison's voice on on the two life crew version so they they used a fairly substantial amount of the actual music and sound from the original recording and the court said that was highly transformative now one of the key things to remember is don't go overboard again um you use some of it but uh if you start taking minutes and minutes of the song You may have gone outside the bounds of reasonableness that is did you reasonably need that much to say what you wanted to say you always have to remember that third Factor keep it reasonable if you're doing a true parody and you're keeping the amount reasonable again you're probably going to be in pretty good shape under the fair use analysis if I'm doing a news program where I report on a story am I allowed to use video footage or photos pertaining to that story well that that can be a little tricky um if you focus in on the question of transformation if you're doing a a story about say the earthquake in Japan and you use news footage that was covering the earthquake in Japan you're probably using that footage for pretty much the same purpose for which it was originally created so it's unclear what the transformation is now on the other hand uh if you find footage of the subject you're talking about I don't know maybe you're doing a story about the nuclear industry in America and you happen to find photographs of nuclear reactors on somebody's website for whatever reason um that is the subject matter of your story and perhaps you're entitled to more latitude to use that in relation to the news story um keep in mind that news reporting is one of the things mentioned specifically in the fair you statute which causes most people to say well everything not everything being equal the fact you're doing it for news reporting probably gets you a little more latitude so there there have been situations where people have been permitted to use entire photographs because the photographs uh were themselves the subject or connected to the subject of the news story but you have to you have to always keep in mind is my purpose different than the original purpose for the work and if you're just taking um somebody else's news story and turning into your own news story the transformation question could turn out to be a little dicey and on top of that uh you may worry that you're harming the market for the original too much because of course maybe your news story substitutes for the news story from which you borrowed so um depending on what you're using and how you're using it that can be a shaky situation can you make money off of a movie you produced that was inspired by another book or film as long as the story is unique like a fan film that exists in the same universe but with original characters and storyline is this fair use oo boy that's a tricky one um so you're always free to be inspired by another work uh ideas are never protected so you know not withstanding the fact somebody made Star Wars and Battle Star Galactica I can still make a drama set in space about good versus evil which we the point which you have to worry is when you use more specific p pieces from a film or another work if you're using the characters in a completely new storyline that's a particularly tricky question um most people consider that a derivative work of the original film characters get some specific protection apart from the story they're in that protection however is has been largely defined based on their appearance so if you're talking about a written work you lose that aspect of it but nonetheless characters in a drama um forget about their appearance their their attributes what they do who they are what made them what they are are protectable pieces of expression from the original and if you use too many of those things you will probably end up infringing um the the fair use question becomes tough uh in some respects on one hand you can say well my story is really transformative I'm taking these characters and putting them in into a brand new drama and it is transformative in that way but the the the Counterpoint to that is well but that's just the point the copyright owner takes these characters and puts them into new stories and so that's really the original purpose for which the characters were created to place them into stories like this highly dramatic work second Factor cuts a bit against you um hard to figure out without more specifics how the third Factor works that is how much you're using whether it's reasonable the tough part is the impact on the market for the original um most people consider sequels to be derivative works I think there are some wrinkles there that uh courts haven't really grappled with yet but none of this none of this provides any easy answer um it in large part comes down to I think what copyright owners are going to tolerate some of them have been really aggressive in going after um fan works others have been much more permissive probably on the theory this is only going to make the original more popular so this is one of those situations where the specifics are really really important there's no easy one size fits-all answer and you have to think really carefully about uh the enforcement question that is are you borrowing material from somebody who's litigious who is aggressive and going after people so if you're going to do something like that that's a place where I would say go talk to somebody about the specifics of of what you want to do maybe it's us maybe it's others but that's something you want to look at pretty closely and you should be especially mindful of the fact that the reason some of the copyright owners who' have been very aggressive about pursuing these things give is hey it's one thing if you want to do this just for fun out of love of the film or the book or whatever if you're doing it on a nonprofit basis that's one thing but when you start trying to go make money on that that's where I draw the line and so doing it uh as a commercial Venture um Again part of the fair use analysis not just positive but it can be very important when it comes to the decision uh on the part of the copyright owner whether to go after you or not can I perform a copyrighted song in a YouTube video can I teach how to play it can I show guitar tablature or music notation that's another tricky one as far as uh simply performing it the transformation argument may not be as strong as it would be in other cases in situations where maybe you have something to say about the song um whether you're performing it for some different purpose maybe it's parody maybe you think the song says something else about the world typically called satire teaching it on the other hand probably presents a stronger case for fair use again teaching is one of the things that's called out specifically in the Preamble of the statute and it's one of the things most people ree fair use protects fairly strongly so if you're using a song to teach somebody how to play the guitar or even to play that song that starts to sound like something pretty transformative because the original song is presumably um to entertain and enjoy uh whereas the purpose of the video now is to teach somebody how to play the music so that starts to sound pretty transformative presumably you're not doing it for money the original work is probably pretty creative if not very creative so maybe that one cuts a bit against you and the third Factor well you know how do you teach somebody to play a song without using the whole song you can imagine a pretty good case for saying a large part of the song is reasonable in relation to the purpose for which I'm using it then finally on the on the on the on the market impacts well I don't think anybody is going to substitute that instructional video for the original song um maybe the copyright says gosh that's a derivative work that I'm entitled to do if anybody's going to teach anybody how to make that song it's going to be me that's that falls a little flat for me so that you know the teaching I think um could could could be a pretty strong case for fair use again probably depends on some details you could do it in ways that are stronger you could do it in ways that are weaker um no one size fits all answer but I I think that presents a much stronger case than just performing the song what kind of categories fall under fair use review education what if the clip you're using doesn't fit into one of them can it still will be fair use there are no magic categories to fair use the statute identifies uses it looks favorably upon so it specifically notes uses to comment criticize report research teach but by no means is that the extent of the categories of uses that fair use protects it's flexible by Design you always have to apply the four factors and it's only the four factors that can give you an answer in any particular situation so if the clip you're using using or the reason you want to use it or whatever it is you're doing doesn't fit into any of those categories that is not the end of the story by any stretch go through the four factor analysis and that's what's going to tell you whether your use is going to be protected or not or likely protected and in fact that's really the point of fair use um one of its great strengths is it's not constrained to pre-defined categories it's flexible enough to be applied to brand new things that nobody ever thought of when the statute was drafted if I want to make software video tutorials and I record my screen with software being shown throughout the video does that qualifies fair use pretty likely I assume you mean screenshots of the software as you use it a company by the narrative explaining and teaching the the viewer how to use it and if if that's what you're talking about then yeah I think that's probably going to be a pretty strong fair use case it's very transformative relative to the purpose of the software your teach teing somebody how to use the software not providing any substitute for the software product uh maybe you're doing it for profit maybe you're not not fatal if you are the second Factor boy I don't know exactly how that works um it's not exactly creative although it's not exactly factual either so maybe it's a wash maybe it cuts against you but the third Factor probably works in your favor you're certainly not using the whole copyrighted computer program you're using only isolated uh Snippets of what shows up on the screen at any given time and most fundamentally you are probably not doing any plausible harm to the market for the original nobody's going to buy your video instead of buying the software if anything uh people are only going to watch your video once they've bought the software because only then are they going to want to know how to use it and I don't think a software maker would get very far by saying they should be the only people who are allowed to teach folks how to use their software so again always just depends on specifics but that's probably one that presents a pretty strong fear use case if I use two to 3 seconds of a video for a mashup but give credit to that video owner is it fair use well giving credit is not a Magic Bullet it doesn't solve the problem you always got to go through the four factor analysis but mashups in general present really interesting fair use questions um looking at transformation a lot of them are just fantastically creative some great examples on YouTube um broke Back to the Future 10 Things I Hate About command ments the the bush and Blair Endless Love video those things are fantastically creative and and and mashing those things together obviously has a a a much different meaning and expression than either one of The Originals does so I I think most of them are pretty transformative most people do them on a nonprofit basis now the work you're using is obviously very creative for the most part so that probably Cuts against you um how much you're using uh you know typically people don't have the attention span to watch mashups that are more than a few minutes long and you know if you're talking about mashups from uh feature films you're using a fairly small part and pretty reasonable in relation to the the the parody or satire or whatever creative purpose you're using it for and really you know the the the idea that they're going to do much harm to the markets for the original is is is pretty far-fetched maybe there's concern about derivative markets but they're they're usually so fun and silly that it's it's not something you would expect the copyright owner to go do so it's it's it's hard to imagine how you're doing too much damage to the market for the original none nonetheless you're talking about valuable properties in a lot of cases and so again some copyright owners have proven to be more aggressive about going after these things and others and that's something you probably ought to consider but in in in general um the the mashup genre is one that I think is fantastically creative um it's it's one of the the neatest things I think that's grown out of YouTube and the and the internet so I would I would encourage people to do it but think carefully and when you come into to a specific situation where you've got something that you've done and and and you have concerns about it then you can rely um and call on people like us or others to give you some specific advice about it and make sure you're comfortable doing what you're doing can I review a movie based on one element in that movie and include clips from that movie in my review without violating copyright keep in mind I am essentially promoting that movie and I am not making any money from the review yes using copyrighted material in a review is a classic case of fair use and so using a clip or um portions of the copyrighted material in order to present your review of the of a film that is something that it's very likely to be found a fair use you're using it for a very different purpose than the original you're commenting on it and you might be criticizing it so in answer to your the second part of the question it doesn't even matter if you are promoting the film you could be criticized ing the film and saying that it's terrible and using Clips to support that argument and that would still be a fair use also um and if if you were doing the review for a commercial purpose and were making money that also wouldn't be a determining Factor so reviews and using the copyrighted material to support that review That's a classic uh use that is often considered a fair use are there any cases in which posting the uncut entirety of another's content could be considered fair use for instance if commentary is located in the description or annotation fields and not on the video itself yes there are times when you can use the entire video of um an entire piece of copyrighted content and reposted for example if you are posting a video and particularly short video and you want to Spur discussion and that discussion is going to be held in the comments or uh the rest of the website those are legitimate use uses of an entire video other examples that people use entire uh videos are for archiving video content or to memorialize something to make sure that it's preserved so for example if you have a politician who speaks out of turn or makes some kind of blunder and you want to make sure that that's uh captured and preserved you could post that and um you might not be in violation of copyright you want to be careful that you're not using full um videos for example a music video and just reposting that video and saying you want everybody to talk about it that's not going that's going to put you in a different position is there a way to give credit to the original owners of the content in a mashup similar to how you make a Works sited page for an academic paper so giving credit isn't necessary it isn't required by the law but it's often a good idea and one way that you can do credit with a video is to have the credits scroll at the end of the video the same way you see at the end of movies now this isn't going to protect you from a lawsuit but people are often most concerned with being credited and having an acknowledgement that the work that you're using includes work of theirs and so it often helps um to include credit and if you can do it it's a good idea can a person use actual clips from a movie I.E Star Wars if he green screens himself into them to change them for comedic purposes using the video clips and inserting yourself in to the into the movie clips as posed in this question that would be a transformative use you're using it for a different purpose than was the original and you're obviously not substituting for the original movie presumably people aren't going to watch your movie instead of watching the original Star Wars and so on the first Factor whether it's transformative and or not that seems uh like a pretty creative use um in addition using it in a comedic way you might be making a commentary about the original or criticizing the original as well which is another argument that will bolster your fair use defense as to um the the other factors now obviously it depends how much of the original are you using um whether you could do that you you know whether you could do this for the entire movie or not is probably um probably less likely um and how much of the original you are using is going to be an important part of that um obviously the second Factor Star Wars is a very creative work but um that may be a wash or may weigh slightly against using it as a fair use but the more transformative it is the different you know you're you're making it different by inserting yourself into the movie and adding lines and adding a new and different purpose um those are the important things as for the fourth Factor the effect on the market that probably isn't much effect uh on the original market for for your U movie it certainly isn't a substitute because it is a transformative use using the original actual movie clips in this way could very well be a fair use obviously it depends on the circumstances of how you used it but there there's a good chance that you could do this uh without being an infringer I've heard and seen content owners complain about content that they don't own is there a way to take legal action or at least write those ROMs so if you receive a takedown and you know that it falsely represents who owns the copyright and the content of your video you can sue the person for sending that false takedown and recover the cost of responding to it I hope this discussion has been useful to you please do keep in mind that it's only a general discussion the only way to assess fair use is to look specifically at the content and analyze it in its final form the discussion we've had today I hope provides General guidance but it shouldn't be used as a substitute for specific legal advice about something you create if you want to post something and you're worried about it you should talk to a lawyer the things we've talked about today can't give you answers and are not the sort of things you should rely on in deciding whether to post something or not finally a word about fair use itself it's not a Dusty dark little exception to copyright rules it's a fundamental part of the copyright bargain it is a thing that protects your right to express yourself and create new things from the world around you my friend and colleague Peter Yazi once said fair use is like a muscle if you don't exercise it it'll wither so use it exercise it go out there and keep creating fantastic new things