Fair use on YouTube

Fair use is a legal doctrine that says that the 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.

Courts have decided that copyright holders must consider whether copyright exceptions apply before they submit a copyright removal request.

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 that a video doesn't qualify for an exception, then they must provide us with an adequate explanation as to why. 

If a copyright holder doesn't provide us with an adequate explanation as to why a video doesn't qualify for a copyright exception, then the video is not removed from YouTube. 

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.

Bear in mind that we take local rules into consideration when responding to copyright removal requests. You can view the YouTube Copyright Transparency Report for more info on how we respond to copyright removal requests, including how often we request additional explanations from copyright holders who claim that a video doesn't qualify for a copyright exception.

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 recognised 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 seek 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 non-profit educational purposes

Courts typically focus on whether the use of copyright-protected material is 'transformative'. This means whether the use adds new expression or meaning to the original material, or whether it merely copies from the original.

Commercial uses are less likely to be considered fair use, but it's still possible to monetise a video that contains fair use material.

2. The nature of the copyrighted work

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

3. The amount and substantiality of the portion used in relation to the entire copyrighted work

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. But, if what's borrowed is considered the 'heart' of the work, sometimes even a small sampling may weigh against fair use.

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

Uses that harm the copyright holder'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.

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 that the removal results in a copyright infringement lawsuit.

The goal of this initiative is to make sure that 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 as only available in the United States.

More info

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