As creatives, we run into intellectual property questions all the time. I wanted to share some things I’ve learned- from experience, from my media law classes, from my workplace (we have a dedicated full-time IP lawyer), and from news stories. Hopefully these may help with any confusions, as this is a very confusing topic These guidelines are for the United States. To be honest, many countries (especially the UK) have even stricter IP laws, but I am not qualified or knowledgeable enough to discuss those.
The two important questions: Who does my creation stand to benefit? Is that benefit monetary?
If your video or art has intellectual property connected to your monetary gain- including ads around it on your personal page (given they would be connected to your personal Google Ad account, showing a deliberate attempt to profit) or ads on YouTube at the beginning of a video- you are breaking the law. You can opt in or out of monetization and ads on YouTube on your channel or on specific videos. If you’ve opted in, you cannot use any content other than your own. If you’ve opted out, you (in theory) have a lot more freedom on what you can put up.
It doesn’t matter if you make any money or any profit. Even if no one clicks on the ad on your site or on your video, you are breaking the law.
If your video has intellectual property and you cannot make money from it, you are much safer. You are not commercially distributing. You may still be compelled to take-down or desist, but you will usually not face fines or other punishments.
Fair use does not usually cover derivative work. Making an animated video using someone else’s song is not legal if you could stand to profit. Making money off that music video is a very serious legal problem that might get you punished.
Another example; making your own rendering of recognized Disney characters in a scene from their movie is NOT legal if you could stand to profit. You might be fine, but if there’s any way at all a profit can be connected to it (even if it’s just a donate link in the description of that specific video), you could get in trouble at some point.
Intellectual property is full of gray areas, but the safest and simplest guideline is that if you stand to profit off something that is not your intellectual property, you are breaking the law. Err on the side of caution.
Here are the guidelines from the US Copyright Office- note especially that there is a LOT of “maybe” and “possibly” in here, but those “maybes” are decided in court. If you can avoid going to court altogether, by steering on the safe side, it’s probably more fun and less worry
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes : Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
- Nature of the copyrighted work : This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole : Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
- Effect of the use upon the potential market for or value of the copyrighted work : Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.