Frequently asked questions about fair use

In the United States, a judge reviews a specific case based on a set of principles to decide whether fair use applies. Different countries/regions have different rules about when it's OK to use material without the copyright owner's permission. For example, in the United States, works of commentary, criticism, research, teaching or news reporting might be considered fair use. Some other countries have a similar idea called fair dealing that may work differently.

1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes

Courts typically focus on whether the use is 'transformative'. That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it's possible to monetise a video and still be fair use.

2. The nature of the copyright work

Using material from primarily factual works is more likely to be fair than using purely fictional works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, if it's the 'heart' of the work, even a small amount may weigh against fair use in some situations.

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Uses that harm the copyright owner's ability to profit from their original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.

Crediting the copyright owner, posting a disclaimer like 'no infringement intended' or adding original content to someone else's content doesn't automatically make something fair use. Uses that try to substitute the original work instead of commenting on or criticising it are unlikely to be considered fair uses.

If you upload a video containing copyrighted content without the copyright owner's permission, you could end up with a Content ID claim. The claim will keep you from monetising the video, even if you only use a few seconds, such as short uses of popular songs.

Automated systems like Content ID can't decide fair use because it's a subjective, case-by-case decision that only courts can make. While we can't decide on fair use or mediate copyright disputes, fair use can still exist on YouTube. If you believe that your video falls under fair use, you can defend your position through the Content ID dispute process. This decision shouldn't be taken lightly. Sometimes, you may need to carry that dispute through the appeal and DMCA counter notification process.

If both you and the claimant try to monetise a video under dispute, the video will still monetise until the dispute is resolved. Then, we'll pay out the accrued earnings to the appropriate party.  

Options that you can take to resolve claims outside the dispute process

The easiest way to deal with Content ID claims is to avoid them in the first place. Don't use  copyrighted material unless it's essential to your video. Take a look at the YouTube Audio Library for music that's free of charge to use in your videos. If you choose to get music from other royalty-free or licensing sites, make sure that you read the terms and conditions carefully. Some of these services may not give rights to use or monetise the music on YouTube, so you could still end up with a Content ID claim.

If you get a Content ID claim for music that isn't essential to your video, try removing it or swapping it with copyright-safe tracks from the Audio Library. You can also always upload an entirely new edit of the video without the claimed content at a new URL.

Transformativeness is usually key in the fair use analysis. Giving credit to the owner of a copyrighted work won't by itself turn a non-transformative copy of their material into fair use. Phrases like 'all rights go to the author' and 'I do not own' don't automatically mean that you're making fair use of that material. They also don't mean that you have the copyright owner's permission.

There aren't any magic words to automatically apply fair use when you use someone else's copyrighted work. Including the phrase 'no infringement intended' won't automatically protect you from a claim of copyright infringement.

Courts will carefully review the purpose of your use in evaluating whether it's fair. Declaring your upload to be 'for entertainment purposes only', for example, is unlikely to tip the scales in the fair use balancing test. Similarly, 'non-profit' uses are favoured in the fair use analysis, but it's not an automatic defence by itself.

Even if you've added something to someone else's content, your use might still not be considered a fair one. If your creation doesn't add new expression, meaning or message to the original, it probably isn't fair use. As with all of the other cases discussed here, courts will consider all four factors of the fair use test, including the quantity of the original used.