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What constitutes a violation of “fair use”?

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Last Updated: Nov 25, 2020

Something vital to every company and creative person is the idea that whatever someone creates belongs to them. This idea could be as simple as a video a student makes for a class or a blockbuster movie that breaks all ticket records. Because of how readily available media is online, legal or not, many people are turning to question at what point does something stop being fair use? If you read a paragraph from a book, does that set you up for a lawsuit? What about playing ten seconds from a song?

If you’re unsure and nervous about sampling while you create things, here’s a simple guide for anyone.

First, it’s essential to know what fair use is and who it protects. This law means that you can use nearly any work as long as it’s transformative or informational. The most common ways people transform pieces are through commentary and criticism or parody.

Another important note to make is whether the hosting of this intellectual property is for profit or not. If you’re showing movies at a makeshift theater for free, there usually isn’t much trouble. The problem arises when you try to charge people to view.

Film

In the film, fair use can be somewhat limited. If you’re working off the guise of transformation, you need to clarify how you’re transforming the piece. For instance, if you’re showing clips of a movie on YouTube, you need to explain why those clips are relevant to what you’re discussing. Otherwise, it would help if you worked to parody it and transform the work for humor’s sake.

If you upload a youtube video that’s ten minutes of Goodfellas uncut and unedited, you’re more than likely going to get a DMCA strike and have your video taken down or demonetized.

Music

Fair use in music has been a topic of hot debate lately. Youtube worked to allow large media conglomerates to remove or demonetize any piece of theirs in any video. This plan enraged a lot of YouTubers, who used the music as a background sound while they worked on their skills. Some videos were even stricken down because of the background music that could be heard while the user was in a mall.

A general rule of thumb is that any song longer than five seconds long isn’t a parody subject to getting reported. Twitch recently made the news for this and even allowed streams that had a video game background music playing to get stricken down or removed.

Literature

Thankfully this area of fair use is a little lax and a lot more easily parodied. Reading a couple of paragraphs of a book won’t get your video or review taken down, despite how some people may try to remove them.

Many try to use DMCA takedowns and audio removals as a fear tactic. Still, by using an economic expert witness, you can rest accessible, knowing professionals agree with your perspective. Don’t let scary half baked lawsuits scare you into taking down a video, or you could lose the income that’s rightfully yours.

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