Fair Use and Copyright in YouTube Videos

I've been working with Jomatech on creating some Vox-style sponsored videos for his channel and one of the things that came up is how Vox is creating these types of videos, which are generally a mash of old footage, images, original footage, overlaid with a Voiceover, without violating all sorts of copyright laws.

The answer is this loophole called fair use. I won't get into the legalese of it here but basically:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

So now the question is whether your work fits under fair use. I went and talked to a Vox video producer and figured that what was good enough for them was probably good enough for us. These are some notes on what they had to say.

Hey! Appreciate you thinking of us here :D and happy to help. The sad reality about fair use is that the gray area and lack of clarity you found online about it is also kind of the reality. Beyond the obvious (if you're commenting on this very thing you're putting in the piece, and not using any more than you need to make the commentary, that is the essence of why fair use exist) While there are lots of helpful guides out there (EG this one gets referenced a lot about what the law provides for (and imho SHOULD be okay), those guidelines are subjective too and beyond them, the reality of fair use depends a ton on the context: lawsuits are insanely expensive even if you think you'd win – so what needs to be managed is more risk than whether the law allows leeway. So what you're using, and where it's being shown, all matter a lot. YouTube is a place where people obviously take a lot of liberties, beyond even what most lawyers will get behind, and can get away with it (as long as it's not music, or sports content, which are either automatically monitored or just very very closely monitored and protected). If you want to be super sure you are protected, get E&O insurance and then you'll also need a fair use lawyer that has to write an "opinion letter" that approves of your use. Generally, as an individual rather than a big company you're not a great lawsuit target anyways, but that insurance and lawyer letter would protect you if you did get sued. And then the lawyer can figure out how risky different things are rather than you just guessing. They will allow more on YouTube than if it needs to go on TV or something. But finally - really - if you are commenting on the thing, rather than just using it for its inherent value (EG - lots of people try to claim "fair use" when they're using a clip as b-roll, just for what it is, not commenting on it), and you would defend your right to comment on that material to the death, rather than just swap it out with something else equally good you can pay for, then you're on the right track. one other lower lift thing you could do is just reach out directly to fair use law professors, that's who could really help once you have a script or a draft.