YouTube's Copyright System: The Question of Fair Use

BY CATHERINE CHOJNOWSKI

In recent months, a controversy has surfaced surrounding prominent YouTubers’ videos being flagged for copyrighted content by large music companies specifically in situations where the content in question is used minimally or simply referenced in the videos.

PHOTO: YouTube

PHOTO: YouTube

Universal Music Group (UMG), an American global music corporation -- which is considered one of the “Big Three” record labels along with Sony Music and Warner Music Group -- has been behind the issue, which has left many YouTube content creators frustrated.

One of the videos affected by the issue is YouTuber Gus Johnson’s video titled “Wipe It Like It’s Hot – Gus Johnson,” in which he mimics the beat of “Drop It Like It’s Hot” by Snoop Dogg ft. Pharrell, using a trash can and a paper towel dispenser in a public bathroom. While the song was not actually played in the video nor were any of the lyrics used, the video was flagged, and subsequently, all of the profits Johnson will make from the video will be forced to go to UMG.

Situations like these are frustrating for YouTube vloggers because much of their incomes come from the ad revenue that their videos generate. In such an incident, it might have seemed that simply re-creating a beat in a comedic manner with no actual reference or relation to the song itself wouldn’t face any copyright repercussions, but music groups have begun flagging videos that are only minimally referencing or related to copyrighted content more than ever.

According to Google’s YouTube Help Centre: “If you upload a video that contains copyright-protected material, you could end up with a Content ID claim. These claims are issued by companies that own music, movies, TV shows, video games or other copyright-protected material. Content owners can set Content ID to block material from YouTube when a claim is made. They can also allow the video to remain live on YouTube with ads. In those cases, the advertising revenue goes to the copyright owners of the claimed content.”

The other options companies that own the copyrighted content have are to either allow their content to be used in the videos in exchange for running advertisements during the video in question, blocking a video so that it cannot be viewed, muting a video so that it can still be viewed (but without the copyrighted material), or blocking the video on certain platforms.

YouTube creator Ryan Trahan’s video titled “I ask girls on TINDER for RELATIONSHIP ADVICE” was also flagged for the use of copyrighted content because a song under UMG’s label was playing in the background of his video for a few seconds. Although the use was minimal and only made up a small fraction of the video’s duration, the video was flagged and all profits made off the video will, again, go to the music company.

“As a creator, I know how much time goes into these videos, and I know how devastating it can be to just have that taken away from you,” says Trahan in a video titled “The Thieves of YouTube.”

“People like me don’t have a big enough platform to fight these huge corporations that are making billions in revenue a year. They have employees literally going through creators’ videos to manually claim their content and I feel like they just recently started doing this recently.”

The prominent vlogger, who describes himself as a “commentary YouTuber,” recalls a period of time in which he got multiple notifications of copyright claims consecutively, even for videos he had uploaded to YouTube months prior. While Trahan recognized that the claims were justified in some of his past videos, he feels as though a noticeable portion of the copyright claims made on his videos were unjustified and that music companies are, to an extent, taking advantage of YouTube content creators.

YouTubers who feel that they have been wrongly flagged for copyrighted content are able to dispute a claim, to which the companies filing the claim have 30 days to respond. Claims are usually disputed on the basis of “fair use” or “public domain,” which YouTube defines as a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner and content which has had its copyright protection term expire. While the specifics of the “pubic domain” are broader because there is no official list of works that are considered to be public domain, “fair use” in the United States is generally restricted to works of commentary, criticism, research, teaching, or news reporting.

“Copyright law is a law of strict liability. It is infringement to use another creator's work, whether the use is intentional, negligent, or willful. Minimal use as you describe may constitute fair use, but the fair use defense is applied on a case by case basis, and whether a use is infringing or fair use is not always easy to judge. A use that is "for profit" is less likely to constitute fair use, as seems to be the case here,” says Carolyn Schurr Levin, an attorney specializing in Media Law and the First Amendment, and Media Law and Ethics professor at Stony Brook University and CUNY Baruch College.

Levin explains that copyright laws are intended to give content creators an incentive to create new and unique works by allowing them to profit from those works and such laws protect creators from unauthorized users not only using, but profiting off their original works without permission.

To avoid future copyright claims, YouTubers should make sure that their videos abide by the “fair use” guidelines and, if in doubt, request permission from music companies when using their content in their videos, however minimal the use may be.

Universal Music Group has denied to comment on the matter.

Lead Image Credit: YouTube