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Fair use/copyright questions and protecting my work?

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Lindsay CarterFair use/copyright questions and protecting my work?
by on May 3, 2015 at 5:07:37 pm

I have a number of questions so sorry if this gets lengthy. I know there are other forums and lots of places that talk about fair use issues but I would just like to tell specifically what I want to know and I like hearing a lot of different opinions. I am planning on getting some legal counsel in the future and maybe this isn't the right place to be asking all these questions but I just wanted to hear your voice in the mean time.

I usually don't do videos on youtube just off our website which doesn't have a ton of views so I'm not really worried about anything being stolen from there. I'm starting to get a bit of a following though. I want to put my videos on youtube and I want opinions on the best way to protect my videos other then adding a watermark and metadata. Does it help to put a copyright disclaimer in the description? If someone was to steal my video would adding a watermark, metadata, and a copyright disclaimer be enough to counter a fair use claim? I've seen more then once people complaining about their video(s) being stolen and youtube didn't do anything because the thief countered with a fair use claim.

I know that I wouldn't want my video to show up in a compilation somewhere or someone to just re upload it as their own but if another channel was to play my clip within their video because they are talking about my video and share the link to my page then I welcome that because it's essentially free exposure. I see youtubers throwing bits and pieces of other videos in theirs all the time talking about them and giving their opinions and putting links in the description. I've tried to contact some users about the use of their videos with no success especially users that aren't consistent video posters. So the real question is does the use I mentioned fall under fair use?

As an example.. I was watching good mythical morning the other day and they were talking about crazy workout trends and showed some clips of some pretty funny workout videos from around youtube while they talked about them. They told the name of the channel and included a link. Do you think that it is okay if someone did not obtain permission from the users themselves? I've seen a couple channels that say if we've used one of your videos and you would like us to remove your video then please send us a message and we'll remove it asap.

How does it work with news footage? Like if I was talking about a news story in a video could I play part of the news broadcast or display a photo that was included as part of the news story and link back to the original video and website? For example, something hilarious was talked about on my news. Could I then play a clip from my news station reporting on the story and talk about that?

What falls under fair use when it comes to pictures from the web of famous people, tv shows or movies? Say I was talking about new movies coming out and we were discussing our thoughts on the new Avenger's movie. Could we display on the screen a picture of the actors as we are talking about them? Could we include stills from the trailer as we are talking about the different elements and characters from the movie? I know as a graphic designer I would never sell something that had Avenger's characters on it because I didn't create them but showing and discussing work in a video I know nothing about.

What about restaurants or stores? Say we were talking about a new Chick-fil-a opening up in our town so we were documenting out first trip there since it opened for fun. We would obviously be talking about the restaurant, the sign would be shown on video and probably show ordering food and eating. We would ask permission from any people that would be filmed or we could always just blur people out if we needed too. Would that be okay to post? What about filming in a store? Sometimes we do these little funny quick tips that are just recorded with a high quality phone and uploaded. Say we decided to do a funny spur of the moment one about shopping while in a store one day could we do that? Could we mention what store we are in or what brands of something we are buying? We were discussing having a segment about old toys and games from our childhood we would bring in. I might bring something like my remote controlled RC car from toy story or a Barbie dream house or play on old game. Could we do that?

What about audio? Say we did a segment talking about our favorite cartoon intros. Could we play a clip of any of the intros? What if we played a clip of audio and the other person has to guess who said it?

Ok this is the last.. It is kind of included in what I said above already. I was watching a youtube video of someone trying to guess what perfume was by which celebrity. The perfume bottles were in the the beginning of the video as well as a picture of the celebrities that went with each perfume. They smelled a sample of the perfume and held up a picture of which celebrity went with what scent. Can this be done without asking permission?

I know this was a lot and I thank you for finishing reading it! I look forward to your answers. Thanks!

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Mark SuszkoRe: Fair use/copyright questions and protecting my work?
by on May 4, 2015 at 4:19:54 pm

Start here:

My bottom line to you is: if you are monetizing your youtube vids, that is, YT is putting ads on before it plays back, you need to have permission in writing from the creators of any images or audio you reference in detail. Making money, no matter how small an amount, removes the thin veil of "fair use" protection.

As far as protecting your own vids from getting pirated, put a copyright statement up in a lower-third and also in the closed captioning periodically, keep a watermark in the frame in a spot that makes it too much trouble to crop out or cover. Even that won't stop the most blatant offenders. There's being right and being able to defend your right. If you have the time and money to mount a court defense of what you do, citing fair use as a defense, then do as you like. But. Understand fair use is not a pass to do what you want: it's the excuse you give a judge after going to court (with all that entails) and being found to have appropriated someone's work. Fair Use is not a "get out of jail free" card. It is a last resort, narrowly applied.

On the flipside, if your work is pirated, do you have the will and resources to pursue the violator all the way? They're counting on it that you can't afford to chase them hard or for long. Anti-piracy is not about "pirate-proofing", because that's impossible. Whatever can be seen can be copied. All you can do is discourage pirating enough so they don't find it profitable, and move on to another victim.

For people that create things like event videos, my advice has been not to try too hard to prevent piracy and fight human nature, rather, flip the model, and put the "sharing culture" to work for you, by giving the content away for as close to free as you can. You make your money up front, before release, perhaps thru adding advertising or getting a sponsorship, or thru pre-orders with a guaranteed minimum, then you release the content for free, so it carries that advertising as wide as possible. This makes it worthless to pirate, because they can't under-price "free". And the more people dub and share the content, the wider your distribution gets, for free. You can compare this strategy to modern music biz, where albums you put out just break even, and you make the money in touring and selling merch to support the album.

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Lindsay CarterRe: Fair use/copyright questions and protecting my work?
by on May 4, 2015 at 6:12:35 pm

Thank you for the response. I'm going to attempt again to get in touch with some of the bigger youtube channels to see if I can find who they went through to get permission to talk about celebrities and games and stuff like this. Problem is they never get back and neither do companies I've tried to contact like nickelodeon. I don't even get a response back about the subject even if I called and left a message. How do I even go about asking about celebritries or showing an image?

What gets me is I know that there is more leeway with what you can put in youtube monetized videos as opposed to like broadcast tv. I know someone who had a song on youtube that has a lot of views and makes money but when it was licensed for tv commercial he had to change some of the lyrics because it was ok for youtube but couldn't be on tv without a paid broadcast license for the brand he referenced. I find this subject so confusing because everyone you talk too will say something different most of the times when it comes too what do I have to ask permission for and what I don't

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Mark SuszkoRe: Fair use/copyright questions and protecting my work?
by on May 4, 2015 at 6:38:16 pm
Last Edited By Mark Suszko on May 4, 2015 at 6:44:58 pm

The best option may be to just invest some money into a consultation with a REAL entertainment lawyer. Consults could be done by phone or email chains or maybe even skype calls. Expect between 50 and 500 an hour, depending on how good/how big they are in the business. But one reason you don't hear back from places you've inquired is that none of those people want to give away anything for free, not even advice. You want the definitive word, you gotta call a lawyer experienced in this particular field. To find one of those, you can call the state bar association in your state ( or try their web site) and ask for references.

....Definitely ask for references!

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