6/25/16- At the 7th Annual VidCon in Anaheim, CA , Weintraub Tobin Shareholder Scott M. Hervey and Rian Bosak, Head of Network Operations Full Screen, presented “Fair Use and Youtube- A Creator’s Take” to a standing room only audience of digital media creators and industry professionals. Check out their presentation below.

1. Fair Use and
YouTube - A
Creator’s Take
Scott Hervey, Weintraub Tobin
Rian Bosak, Fullscreen

2. What is a Copyright?
• Protection granted to original work of authorship fixed
in a tangible medium
• Articles, programs, web pages, multi-media, music
• No protection of functional aspects
• Exclusive right to reproduce, derivative works, copy,
perform, display, transmit
• Generally lasts for life of author plus 70 years
• Timely registration allows attorney’s fee recovery, statutory
damages, etc.

3. Fair Use in 5 Minutes
▪ Fair Use is a defense to an infringement claim;
▪ Fair Use is not automatic; it is determined based on the facts at hand
▪ Fair Use is a balancing test of the following four factors:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.

4. 1)Purpose and Character of the Use
A. Does the new work add something new, with a further purpose or
different character.
B. Does the new work alter the first with a new expression, new
meaning, or new message.
C. Is the new work merely a replacement of the original work.
If a work is like the first two points and not like the third, the work is
“transformative.” The transformative nature of a work has become the
most important element in determining fair use. If the work is not
transformative, it’s likely not fair use.

5. Works Whose Purpose & Character Favor
Fair Use
• A parody is transformative. It provides social benefit, by
shedding light on an earlier work, and, in the process,
creating a new one.
• News reporting favors fair use. New reporting can be
transformative (although the reporter does not need to
transform the original work to rely on the news reporting
privilege).
• Teaching material favors fair use. This applies to
persons or entities when they engage in instructional,
research, or scholarly activities for educational purposes.

6. So What is a Parody?
● A work that imitates a work for comic effect or ridicule.
● For the purposes of copyright law, a claim of parody relies on the
new work commenting in some way on the original work.
● If, on the contrary, the commentary has no critical bearing on the
original work, there is no parody. A court may find that the
alleged infringer merely used the original work to get attention or
to avoid the drudgery in working up something fresh.

7. 2) Nature of the Work
• Some works are closer to the core of copyright protection than
others, with the consequence that fair use is more difficult to
establish when the former works are copied.
• In the digital media space, any third party work used - video clips,
images, music - would be of the type that is closer to the core of
copyright protection.

8. 3) The Amount/Substance of Work Taken
• How much of the original work is used?
• Is the quantity and value of the materials used reasonable in relation to
the purpose of the copying.?
• Still, a parody must be able to “conjure up” at least enough of that
original to make the object of its critical wit recognizable.
• This is not, of course, to say that anyone who calls himself a parodist
can use all or the best parts of a work and get away with it. In parody,
context is everything and the question of fairness asks what else the
parodist did besides go to the heart of the original.

9. 4) Market Effect / Value Diminution
• When the second use is transformative, the new work does not act as a
substitute for the original work. This is so because the transformative
work and the original usually serve different market functions.
• A lethal transformative use, like a scathing theater review, may kill
demand for the original work but it does not produce a harm cognizable
under the Copyright Act

10. Equals Three, LLC v. Jukin Media
Determining fair use still isn’t easy:
● The episodes (except Sheep to Balls) are highly transformative and use of
Jukin’s videos only what is reasonably necessary to achieve their
transformative purpose. The first and third factors thus strongly favor fair
use. There is no proof of cognizable harm to any actual or potential
market, and thus the fourth factor favors neither party. Moreover, though
the second factor weighs against fair use, it is of little weight in light of
Equals Three’s episodes transformativeness. Thus, on balance, the factors
weigh in favor of fair use for all episodes except Sheep to Balls.
● However the jury came back with a unanimous 'no' on each count, no fair
use. A juror told the Hollywood Reporter “We just didn’t feel that the videos
were transformative enough to count for fair use.”

11. Top Fair Use Misconceptions
1. But I only used 5 seconds of music/video (may not be
fair use by could be de minimis);
2. It was on the Internet/YouTube and everything on it is in
the public domain;
3. It didn’t have ©
4. I can’t get sued because it’s fair use;
5. Fair use is too difficult and confusing; and
6. Adding “no copyright/infringement intended” in
description field will protect you.

12. Fair Use or Not? – Her Trailer Parody

13. Fair Use or Not? – Goat Edition

14. Fair Use or Not? – Dunkin’ Love
I been craving I been craving
I been hungry
I been thinking why can’t I have you on the west coast
Baby I want you right now
Coffee on ice feel like an animal when I smell it on the grill
Can’t take my eyes off that sausage patty
Dunkin love
I walked into the kitchen, saying hell no I’m not cooking this shit
I want dunkin love, open all night
Best thing I remember about the east coast was waking up
Open all night, love
Everything all right
No complaints because I heard dunkin
I’m running in for that bacon egg cheese
Drinkin eatin drive through in my accord
Cooler on my tongue
Servin all those old fashioneds
Last thing
I been sipping on this coffee
I been sipping coolata
Can’t take my eyes off that sausage patty I want you

15. Fair Use or Not? - Buffy vs. Edward

16. The Special Challenges With Music
Music has many special challenges due to special nature of
ownership rights in music. Some uses that may likely not fit
into fair use are:
● “Parody” videos
● Cover videos
● Dance videos
● Live performances

17. What Can Happen if I Use Unlicensed Content?
Even unintended infringement can cause havoc
on your YouTube account.
● Content ID Claims = Monetization Loss.
● Global Blocks = Monetization Suspension.
● Strikes (DMCA Takedowns) = Channel Loss.

18. When Should I Care?
While copyright infringement is never ok, not all YouTube
claims are created equal:
● Address WW Block Claims.
● Address Copyright Strikes (DMCA Takedowns).
● TOS/TOU/Thumbnail strikes can also cause
monetization suspension. Deal with these.
● DO NOT DELETE YOUR VIDEOS BEFORE
RESOLVING CLAIMS.

19. What is the Claim Process on YT?
1. Dispute a claim (creator at any time);
2. Review and decide (rights holder within 21 days);
3. Appeal reinstated claim (creator at any time);
4. Review and decide (rights holder within 21 days);
5. Counter-notify DMCA takedown (creator within 21
days);
6. File Complaint in Federal Court to uphold DMCA;
takedown (rights holder within 21 days).

20. Closing Points to Remember
● Fair use is a defense only to a copyright claim;
● Always consider the 4 fair use factors;
● If in doubt, seek legal advice;
● If still in doubt, get a license prior to upload;
● CID/FB Rights Manager doesn’t discriminate;
● Don’t risk your channel/earnings potential.

21. Thank You!!!

22. When Can Fair Use Help Me?
● News – Use of a work in the form of reporting can be fair use.
● Commentary – Use of a work as display of proof in social commentary
can be fair use.
● Transformative – Use of a work to create a new work that is different
in purpose and meaning than the original can be fair use.
● Educational – Use of a work for educational purposes can be fair use.