What is fair use? If you produce YouTube content or do any work with intellectual property or copyrighted material, then a thorough understanding of fair use copyright law may be absolutely vital. In this post, we’ll break down what fair use is, dig into the criteria that determine fair use, and discuss the various applications of fair use copyright law.

What is Fair Use

First, let’s define fair use

Fair use is a branch of copyright law relating to the reuse and reproduction of copyrighted material. Like all matters related to copyright law, fair use is a complex topic with lots of ins and outs. Let’s get started with an overview definition, then we’ll dig into the specifics in more detail.

And, if you come across any other unfamiliar terms, our ultimate guide to filmmaking terminology is a great resource for looking up definitions.


What is fair use?

Fair use is a type of copyright law that allows and protects the reuse of copyrighted material within a different piece of work under specific circumstances. For a work to be considered fair use, it must meet a number of conditions. The four main determining factors are below. There are other requirements, exceptions, and allowances. But they are the primary criteria that determine whether a particular work is protected under fair use copyright law. Contrary to popular belief, the ability to use copyrighted material has nothing to do with whether or not the content is monetized. It also has little to do with the length of the included clips.

Fair Use Policy (Determining Factors):

  • Purpose and character of use
  • Nature of the copyrighted work
  • Amount and substantiality of the portion reused
  • Effect of the use upon the potential market

What is Copyright Fair Use

The purpose and character of use

Now, let’s dig into each of these key determining factors, starting out with the purpose and character of use, which is arguably the most important of the bunch. For example, the video essays that we make on the StudioBinder YouTube channel are protected by fair use copyright law. For example, our exploration of the Wes Anderson style.

Directing Style of Wes Anderson is protected by Fair Use  •  Subscribe on YouTube

You will notice that in the above video essay — and indeed all of our video essays — we use clips from films, which are copyrighted works. So, why are we and other content creators allowed to use copyrighted material within our content? The answer is, you guessed it, fair use.

Generally speaking, the type of content we make is protected under two branches of fair use copyright law. The first is commentary/criticism — as we are discussing and analyzing the work in our essays. And the second is education — as our videos provide an educational benefit for our viewers. These elements determine the purpose and character of use of the copyrighted material within our videos.

For a piece of content to be protected by fair use, it must be “transformative in nature.” This means that a video which alters, edits, and comments upon a copyrighted work is protected by fair use because it transforms the copyrighted work into something new. Whereas simply uploading a movie or an unedited clip from a movie would not be protected by fair use because it is not transformative in nature to simply reproduce a copyrighted work verbatim.

In the example above, we are transforming the material from Wes Anderson’s films by using the footage for a different purpose. And we are adding value to the repurposing of the copyrighted material by offering insights and analysis to the original work. Be sure to check out our rundown of the best Wes Anderson movies and our analysis of his color palettes.

Fair Use Copyright Rules

The nature of the copyrighted work

This determining factor is the most straightforward of the core four. And the one that is the least likely to directly influence whether or not a work is or isn’t protected by fair use.

Nevertheless, the nature of the copyrighted work is necessary to take into account, legally speaking, if the fair use case were to be taken to court.

In the case of our 2001: A Space Odyssey video essay, the nature of the copyrighted work would be described as “a publicly released feature film.” Movies, television shows, books, music, plays, video games, and more are all acceptable forms of copyrighted work that can be transformed into a piece of content protected by fair use copyright law. 

Our 2001: A Space Odyssey is protected by fair use  •  Subscribe on YouTube

For example, one nature of the copyrighted work instance that might not be acceptable for fair use could be portions of an incomplete feature film that has yet to be publicly released. Another example could be extracted passages from a copyrighted screenplay that has yet to be shot or announced.

Other exceptions may center around works that are not copyrighted or are attributed to the creative commons. Public domain movies are not protected by the same overarching laws as traditionally copyrighted works, neither are royalty-free songs.

The YouTube audio library contains a number of songs that are free to use within YouTube content and are free from copyright entanglements.

Examples of Fair Use

Amount and substantiality of the work

This factor is key in determining whether or not a piece of content will or won’t be protected by fair use copyright law. But it is often misinterpreted, so allow us to dispel the confusion. Fair use status specifies that the new work may only use the amount of the copyrighted work necessary to support the purpose or character of the use and nothing more.

Put simply, this means that a piece of content cannot use more copyrighted material than is absolutely necessary to support your arguments or other intents. In the example essay below, notice how we only use footage that directly supports the goal of the video.

If we were to include unrelated footage or whole scenes from films that did not support the overall intent of the video, then our ultimate guide to camera angles would no longer be protected by fair use copyright law.

Our essays use the appropriate amount and substantiality of copyright material  •  Subscribe on YouTube

Some misinterpret the amount and substantiality determining factor to mean that only short snippets of copyrighted material may be used in a fair use work, but this isn’t accurate. By the letter of the law, one could include the entirety of a copyrighted work within their own material if each and every aspect of the copyrighted work is integral to the new work and commented upon/repurposed. Look no further than Red Letter Media’s Mr. Plinkett reviews for prime examples of copyrighted works critiqued in full.

A one-hour-41-minute-long review  •  Fair use policy

It is crucial to only use portions of a copyrighted work that are directly commented upon or transformed. Otherwise your content may not be covered by fair use copyright law. We have one last determining factor to explore, so let’s jump into it.

Fair Use Law

The effect upon the potential market

To put it in simple terms, this determining factor looks at whether or not the fair use project has a substantial negative effect on the success or audience of the original copyrighted material. To figure out if your own content poses an effect on the potential market that could keep it from being classified as fair use, ask yourself two questions.

One: does your content serve as a substitute for the copyrighted work? Two: Does your content render the original work obsolete? As an example, let’s look at our Parasite breakdown.

Our Parasite video doesn't pose a negative effect to the film’s potential market  •  Subscribe on YouTube

If our Parasite video essay served as a substitute for the film or rendered it obsolete, then it would not be protected by fair use copyright law. Luckily, this isn’t the case. Our video offers insights on the movie and analyzes the filmmaking techniques employed; discussing the film, not replacing it.

Check out our breakdowns of Parasite’s script and set dressing for more, plus take a look at our rundown of the best South Korean movies to find more films worth watching.

What is Covered Under Fair Use

Fair Use on YouTube

Fair use copyright law protects things like reviews, reactions, parodies, and commentary videos that meet all of the previously discussed criteria. But that doesn’t necessarily mean that you won’t run into trouble with your own fair use content when posted to YouTube, unfortunately.

YouTube empowers copyright holders to claim content that uses their copyrighted material, whether or not the content in question is protected by fair use. YouTube’s Content ID system also does this automatically.

If you know that your content is 100% protected by fair use copyright law, you have the right to dispute and appeal the claims against your content. But this can be a long process and a successful outcome is not guaranteed. YouTube’s fair use policies are not ideal, extremely far from it in fact.

The following video from the Stanford Center for Internet and Society digs into every facet of fair use in extreme detail, including how it applies in the context of YouTube content.

The Stanford Center for Internet and Society define fair use

Fair use and copyright law have been hot-button issues on YouTube for years, with many creators being consistently infuriated by YouTube’s copyright practices and policies.

A landmark fair use legal case played out directly on YouTube and set an important precedent for other fair use cases moving forward. If you run your own channel, check out our tips for making a YouTube channel stand out.

The H3H3 fair use court case  •  Fair use definition

Fair use is a relatively new type of copyright law in the grand scheme of the entire legal system. As time goes on, we may very well see more changes to the current copyright laws and how YouTube chooses to implement them.


What is Music Licensing?

Now that you know what fair use is, you may be wondering what the best way to go about legally securing music for your film is. The answer is: music licensing. But, what exactly does that mean? And how does one go about it? We’ll answer both questions and more, up next.

Up Next: Music Licensing →
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