Fair use is a legal doctrine that says use of copyright-protected material under certain circumstances is allowed without permission from the copyright holder.
YouTube gets many requests to remove videos that copyright holders claim are infringing under copyright law. Sometimes these requests apply to videos that qualify for copyright exceptions or seem like clear examples of fair use.
If the use of copyright-protected material in a video qualifies as a copyright exception, then the video is considered lawful and non-infringing. This is why we often ask copyright holders to think about whether copyright exceptions apply before submitting a copyright removal request to YouTube. If a copyright holder believes a video doesn't qualify for an exception, then they must provide us with an adequate explanation as to why.
Copyright exceptions around the world
While international rules about copyright exceptions are often similar, they can differ. Different countries and regions may have different rules about when it's OK to use copyright-protected material without the copyright holder’s permission.
In the United States, works of commentary, criticism, research, teaching, or news reporting may be considered fair use. In the EU, more limited exceptions are recognized and the use must fit into specific categories, such as quotation, criticism, review, caricature, parody, and pastiche. Other countries/regions have a concept called fair dealing that may work differently.
Ultimately, courts decide fair use cases according to the facts of each unique case. You’ll probably want to get legal advice from an expert before uploading videos that use copyright-protected material.
Four factors of fair use
In the United States, judges decide what’s considered fair use. A judge will consider how the four factors of fair use apply to each specific case. The four factors of fair use are:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used relative to the whole copyrighted work
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Example of fair use
Donald Duck Meets Glenn Beck in Right Wing Radio Duck
"Donald Duck Meets Glenn Beck in Right Wing Radio Duck"
This remix combines short excerpts from different source materials. The remixes create a new message about the effect of provocative rhetoric in times of economic crisis. Works that create new meaning for the source material may be considered fair use.
YouTube’s fair use protection initiative
In rare cases, we’ve asked YouTube creators to join an initiative that protects some examples of “fair use” on YouTube from copyright removal requests. Through this initiative, YouTube indemnifies creators whose fair use videos have been subject to removal requests for up to $1 million of legal costs in the event the removal results in a copyright infringement lawsuit.
The goal of this initiative is to make sure these creators have a chance to protect their work. It also aims to improve the creative world by educating on both the importance and limits of fair use. Because of the variation in the rules governing such uses by different countries/regions, as described above, we're only able to offer this initiative to creators living in the United States who agree to have their videos are only available in the United States.
Examples of videos in YouTube’s fair use protection initiative
These example videos represent a small sampling of the large amount of copyright removal requests we get. They also represent only a few of the large number of potential fair use videos that are subject to removal.
Each year, YouTube can offer fair use protection to only a few videos, which are chosen based on many factors. In general, we select videos that best demonstrate fair use based on the four factors of fair use.
Reinstated fair use videos
While YouTube can’t offer a legal defense to everyone, we remain vigilant about copyright removal requests impacting all YouTube creators.
You may be aware of some notable cases where we’ve asked copyright holders to reconsider removal requests and reinstate fair use videos. For example:
- This video by the Young Turks, which shows short clips from a heavily criticized commercial as part of a conversation on why it offended viewers.
- This video by Secular Talk, which criticizes a political figure for endorsing an unproven treatment for diabetes.
- Buffy vs Edward: Twilight Remixed -- [original version], a remix video that compares the ways women are portrayed in two vampire-related works targeted at teens.
- "No Offense", a video uploaded by the National Organization for Marriage, which uses a clip of a celebrity as an example of rude behavior.
If you’d like to learn more about fair use, there are many resources available online. The following sites are for educational purposes only and aren't endorsed by YouTube:
- Center for Media and Social Impact’s “Code of Best Practices in Fair Use for Online Video”
- Digital Media Law Project's detailed explanation of the Four Factors
- US Copyright Office’s fair use index