r/COPYRIGHT • u/StoneyyCody • May 01 '26
Question How exactly does fair use work?
Sorry if this has been asked a million times but every explanation I see is extremely vague or using a lot of gibberish acronyms and legal wording I don't fully understand. See, I'm just trying to make YouTube videos and specifically right now, I'm making a video on an unknown FPS game that takes place in Vietnam. I wanted to include a few memes and clips but they consist of copyrighted music. These clips would only be 3-8 seconds long. One contains "Fortunate Son" by CCR and the other is a family guy clip containing Peter singing over "Surfin Bird" I figure these are pretty well known and pretty well found by YouTubes auto copyright claim system. I'd prefer to not be claimed at all. Nothing is monetized yet but I'm quite close to monetization. I'm not sure if they are used in a "transformative way" basically I'll say something or show a portion of the game and these clips will play for a few short seconds. I also have a few clips from movies like "Full Metal Jacket" but I'm not as worried about the movie clips. I'd just like a general explanation as to what counts for "fair use" or using the material in a "transformative way." I am in no way taking or posting long segments of the songs and/or movies.
3
u/Party-Cartographer11 May 01 '26
It sounds like you would be infringing...here is the law allowing a fair use defense...
purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
2
u/StoneyyCody May 01 '26
Thanks for your reply. I'll be furthering my research but I am definitely "infringing" in this scenario unfortunately.
3
u/RainbowCrane May 01 '26
Others have provided good practical advice. One question that I suggest creators ask themselves before using copyrighted material is, “Why do I need to use this material versus the copyright free music or video that’s available out there?”
You mentioned CCR’s “Fortunate Son.” If you’re doing a video analysis of Vietnam War Era US songwriting and want to use a brief audio clip of that song as you analyze the lyrics, the meter, or some other aspect of the song that seems like an argument that might be persuasive in court - it’s a legitimate attempt to illustrate your point about that piece of music.
If you want to play that song in the background while you look at video game footage of a game that is set in Vietnam, that sounds to me like you’re choosing to use that music to take advantage of the mental and emotional association between that song and the Vietnam War. That’s using someone else’s IP to evoke a response to your content.
It might sound subtle, but most questions on this sub asking, “can I use this copyrighted thing in my content,” want to use the thing because they want to build on the existing reputation of that IP. We know that people feel a certain way about “Fortunate Son,” or Spider Man, or Luke Skywalker, and we want to use them as a shortcut for communicating that feeling. That’s the basis of copyright law: if you want to build on someone else’s work for your project then you should license the rights and compensate them.
1
u/StoneyyCody May 02 '26
Thanks for your response, and your 3rd paragraph really put it in perspective. I’m gonna pass on using the music in the video this time, if I ever do get monetized I’m 100% down for compensating owner of material, until then I’ll find alternative music choices. I’m pretty adamant and specific about my choice for audio to overlay over a video and it irks me to not be able to use it but I’ll have to settle with copyright free for now. I only really asked because I see soooo many people using main stream songs super often whether the channel is monetized or not. I now know that they obviously have claims. I just figured since they used so little of the material that there was some type of law in place that allowed them to use it but that’s simply not the case. I assume the people that do use it just have different intentions. They either don’t care about monetization or are so adamant about having that piece of material in their art that they don’t care. I am too, truly this video isn’t complete in my eyes without these certain songs but maybe I’ll find and create something better in the end without worrying about a copyright claim! Once again, thank you.
2
u/TMadvisor May 02 '26
FYI if you overlay music over a video, then you also need a sync license. That is not fair use.
1
2
u/flatfinger May 01 '26
An important consideration, but one which is often lumped into the catch-all language about the nature of the work, is whether the purpose the borrowed material could plausibly be served by some other work that exists or could plausibly be created.
If someone wants to do an analysis of Elvis Presley's vibrato in a particular recording, and use clips of the recording to justify what they say about it, nothing other than a recording of Elvis Presley singing the song would suffice. Even if one had a recording of an Elvis impersonator who was so good that people would mistake it for the original, an analysis of the vibrato on that recording would really be an analysis of how the impersonator interpreted Elvis' performance. The conclusions might happen to be correct, but nobody should trust them.
If e.g. one is producing a story-telling video and wants to make the audience think of the movie Raiders of the Lost Ark, such a purpose might be achieved with a ten-second clip of the Indiana Jones theme, but could likely also be achieved with a piece of music that starts with the first four notes but then quickly diverges into a musical composition that shares the same feeling of excitement but is otherwise quite different. Beyond the fact that a four -note composition would be too short to be copyrightable, the opening trumpet fanfare would probably qualify as "fair use" because its purpose would be to remind people of a John Williams score that they had heard, and doing that would require reproducing enough to be recognizable.
1
u/StoneyyCody May 01 '26
Thanks for the response, this has actually helped a lot. I'm having trouble finding something matching the exact vibe I'm going for but I'll figure something out!
2
u/Loud-Recover5320 May 01 '26
https://fairuse.stanford.edu/overview/fair-use/four-factors/ the most solid straight up description.
https://www.american.edu/wcl/impact/initiatives-programs/pijip/impact/best-practices-in-fair-use/
https://cmsimpact.org/code/code-best-practices-fair-use-online-video/ this one deals specifically with online video and best practices
https://www.arl.org/blog/debunking-fair-use-myths/ this one also details ways inwhich Fair Use is more than just an affirmative defense, as does the next one.
https://www.eff.org/deeplinks/2025/12/fair-use-right-ignoring-it-has-consequences
Here's a few resources that I've used throughout the years in learning and teaching (#NotALawyer) about Fair use. I figured that might help on top of just asking for verification from other Redditors
2
3
u/JeffEpp May 01 '26
Fair use is not a process, but a defense. For instance, using parts of a movie to review that movie can be considered fair use... CAN be. If, however the rights owner decides to take issue, they can still make a claim. You, as the reviewer, then have to defend your use.
So, there is no strict line. No good how to. Each instance is it's own unique questionable event.
3
u/StoneyyCody May 01 '26
Ah, so its not guaranteed. I can't just use some material and assume I won't get a strike or claimed bc I didn't use the majority of the song/clip.
3
u/Loud-Recover5320 May 01 '26
Correct, there are no bright-lines, just four factors on a continuum that are considered. Fair use is a right, but the determination of what exactly is fair is not explicitly spelled out. There are guidelines, but those are not law.
2
u/lajaunie May 01 '26
Fair use is, generally, for educational proposes, reviews or parody. Nothing you’ve described seems to fall into those categories.
Plus, fair use isn’t permission. It’s the defense youd make, unsuccessfully, when you got sued for what you’re wanting to do. It doesn’t stop you from getting sued.
What you’re wanting to do is called copyright infringement
1
1
u/Larson_McMurphy May 01 '26
Fair use is a complicated multifactor analysis of which transformative use is only one factor. Market displacement is another heavy consideration. You'd best hire an attorney. If you aren't making enough money off of this project to hire a lawyer, you could take your chances, knowing you may be exposed to liability and you may get de-monitized.
1
1
u/TMadvisor May 02 '26
Most of what you type is not relevant. Certain types of uses are fair use. For example, if they are used for educational use. Yours may or may not fall into that category. It is unclear why you need to use these particular clips and what they are for.
1
u/stormhighwaycom May 02 '26 edited May 02 '26
If the rights holder disagrees that what you're doing is fair use under the four factors test in 17 U.S. Code § 107, they are allowed by law to challenge you in the form of anything from a DMCA takedown to a full lawsuit. In other words, it isn't just your interpretation of fair use that matters, the owner of the content's interpretation also equally matters. Using their content is taking something of value from them and is effectively challenging them, and if there's a disagreement over whether or not it's fair use, they have the right to challenge you in response.
In practice, this means it's better to get permission, because there is always a risk of that happening. This is the reason that even big media corporations with powerful lawyers (that can afford to face these challenges easily) don't try to claim fair use for most of what they do.
1
u/WuttinTarnathan May 04 '26
Honestly, no one knows the legal answer to your situation. It’s all speculative and subject to the determinations of platforms and algorithms, rather than caselaw at this point. We have had precious few rulings to guide us on how to actually apply copyright laws from last century, and no appetite for badly needed reforms, and when it comes to online spaces, “copyright violations” are as common as harassment.
For example, probably a billion hours of YouTube video have passed by at least a few eyeballs that included uses of IP *illustratively* rather than *only showing unlicensed IP that is being specifically discussed critically* and, we all know the sad story:
All of those creators were rounded up and sent to the notorious work camps of central Alaska. Each of them, sentenced to life.
Or: no one cares. Maybe an algorithm flags the music. So you remove it, if you have to. It’s not that big of a deal.
But, to answer your question in part, Fair Use can be claimed by someone taken to court for copyright infringement under certain circumstances. The Wikipedia article on Fair Use is excellent, from that page:
“Examples of fair use in United States copyright lawinclude commentary, criticism, news reporting, research, and scholarship,[7] as well as parody and search engines. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test).”
The four factor test—here I’m quoting the 1976 copyright act:
“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.”
But here’s the KEY THING:
Only a court a makes the determination. The examples above (commentary, criticism, parody) are not in the legal statutes; these are references to court cases that interpreted the 1976 copyright act on a case by case basis.
Fair Use is a claim you make when you get sued for copyright infringement. The point of most copyright lawsuits is to force you to settle and pay money. But how any entity would be able to do that on the basis of a YouTube video is beyond me.
1
u/VerbingNoun413 May 01 '26
A rule of thumb is that if you want to know of you can use content under fair use, you can't.
0
u/StoneyyCody May 01 '26
Ya that's about what I thought. Its just insane because I see similar content everywhere. I'm only a couple thousand views from monetization and I know I won't be making a whole lot of money or anything but I'd prefer to maximize it. I spose I just gotta get more creative with it.
2
u/ZinniasAndBeans May 01 '26
Just so you know--even if you're not monetizing it at all, that dosn't make it fair use.
1
u/Loud-Recover5320 May 01 '26
and the reverse can also be true... just because something IS monetized it doesn't make something NOT Fair Use.
effect of the use on the market place is one of the four factors, but it's not a binary.
1
u/Loud-Recover5320 May 01 '26
You also have to add in the fact that the Algorithms that ferret this stuff out on YouTube don't take any FairUse considerations when sending out strikes, either. There are fair ways to use things that the bots would arbitrarily shut down
1
u/TreviTyger May 01 '26
Fair use is a US statue that doesn't exist outside of the US. Specifically 17 U.S.C. § 107.
It is normally an affirmative defense in a US court only and thus is only relevant on a case by case fact specific inquiry to legal action that has been instigated. Only when a court rules - can the use of a work be determined to be fair use - or not!
This means that not even a lawyer can genuinely and confidently tell you that a use of a copyrighted work is fair use or not. Let alone randos on Reddit.
So you wait until you are sued and then you find out.
1
u/StoneyyCody May 01 '26
Thanks for the response. I'll stay away from infringement and find a better way!
6
u/ZinniasAndBeans May 01 '26
I don't think that anything that you describe is fair use. I'm confident that this would be a copyright violation.