Disclaimer: I am not an attorney. The content of this article is not, and should not be construed or taken as, legal advice. If you believe that you are in need of legal advice, please enlist the services of an attorney who is licensed to practice law in the jurisdiction in which you live and/or do business.
This series is here to teach you what I know of the rules and best practices to keep you from running into copyright problems when uploading videos to YouTube based on my experience working as a contractor within YouTube's Content Manager CMS as well as a content creator on the platform. All of the information here can also be found in the Creator Academy, which is available to all YouTube creators, but has been distilled in such a way as to assist you with interacting with the individuals and companies enforcing and managing their rights through the Content ID system.
Last time I talked about creating 100% original content and buying licenses to protect yourself from infringement accusations. This week we'll talk about two other methods to make sure you're not infringing on other's copyrights.
Note: While it is possible that there are exploits and loopholes that you can use to get around the systems that enforce copyright within YouTube, those are not part of this discussion. I want to teach you how to avoid breaking the rules, not how to break the rules without getting caught.
Method 3: Use public domain content.
Content that is in the public domain means that it is not protected by copyright. That could mean that the copyright expired or the the creator chose to release it to the public domain specifically.
I've encountered a lot of people that misunderstand public domain to mean "publicly available" which is far from accurate. I've even seen arguments that since they (illegally) downloaded something from a torrent site that it's in the public domain.
Copyright law varies from country to country, so something in the public domain in the United States might still be protected by copyright in, let's say, Germany. The general rule I've been told has been the lifetime of the author plus 100 years (although there are exceptions to that rule). That means if the author died in 1915, then the copyrights probably expired in 2015. Since copyright laws are constantly changing and evolving, and have different enforcement periods in different countries (or even depending on whether it was work-for-hire vs. private creation) it can be more complicated than that.
Additionally, with music the composition might be in the public domain (Beethoven's 5th) but the recording (or "master") could still be copyrighted.
Method 4: Make sure your content falls under "Fair Use" or "Fair Dealing" rules.
Fair use and fair dealing are legal protections for education, criticism, news reporting and research. These protections do not exist in every jurisdiction and can often be very vague and difficult to understand. I've been told by lawyers that you could spend years or even decades studying fair use exclusively and still not understand it completely.
Typically, covers, remixes, "tributes", "remakes" and mash-ups do not fall under fair use guidelines. It's possible there are exceptions, but I've never seen one and neither have any of the people I know in the industry.
The general rule I've used is to use as little of the content as possible and make sure that your original content based around it the primary focus of your video. Although, there are recent precedents that could be changing the landscape with that.
The problem with fair use, and the reason it's so murky, is that so few copyright holders have been willing to litigate for fear of court decisions that could set precedents expanding fair use protections.
If you're not sure, it's best to consult a copyright attorney.
When I'm creating videos I always prefer to use the methods in the order they're presented here. If I can make content that's 100% original I'll do it, if I can't then I'll try to get a license, if a license can't be obtained I'll try to substitute with public domain content and if all else fails I will work to ensure my videos fall under fair use protection.
Next time I'll discuss how to respond when your video gets a (non-DMCA) copyright claim.
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