Avoiding Youtube Parter program copyright headaches.
October 1, 2009 3:05 AM   Subscribe

How can I make sure that Youtube's copyright requirements are met in order to monetize videos via its Partner program?

Hello, I was recently offered the opportunity to monetize one of my videos (and perhaps more in the future) on Youtube via their Partner programs. The video is mostly a review of the Xbox 360 version of Magic: The Gathering, and includes screen shots from the game, though there are some funny parts such as me dancing to music.

Link to video here.

I am also planning on making a video where I take a popular song with changed (game-related) lyrics, and have enlisted the help of a musician to make slight adjustments to the arrangement of the song, though basically it is still a cover.

My questions have to do with the fact that it is impossible to get in touch with someone from Youtube directly - what exactly do I have to do to meet their copyright requirements? Youtube's site is convoluted and at times gives differing answers on the subject. An excerpt may be found below:

Youtube Partner criteria.

So the questions are part legal, part Youtube specific.

Is taking a publically-provided screenshot of a game and using it in a video (showing it minimally) considered "fair use?"

Is using the melody of a popular song, but creating a new performance of it and new lyrics, considered "fair use?" That is, do I hold the copyright to this if create the derivative work?

Are song parodies considered "fair use?"

Finally, since Youtube checks this for all monetized videos, can anyone help me understand the specific requirements they have for what is and is not acceptable, especially with regards to using game screenshots (do I have to have taken them myself?) and musical parodies I create.

Thank you!
posted by Nixie Pixel to Computers & Internet (4 answers total) 1 user marked this as a favorite
Since you are reviewing the game in the video, I think that the image of the game is a very clear cut case of "fair use".

I'm not sure about the song.
posted by Mr.Roundtree at 3:33 AM on October 1, 2009

My questions have to do with the fact that it is impossible to get in touch with someone from Youtube directly - what exactly do I have to do to meet their copyright requirements?

To be fair to youtube, they just want your video to be legal - it's not their fault the law is complicated and they are not lawyers.

You could check out Stanford's fair use page.

The use of screenshots in a review is pretty clear-cut as OK, as you'll be using a small portion of the original work for purposes of critical commentary. If you're able to take the screenshots yourself, why not do so?

If you look at the 'summaries of parody cases' section of that page you'll note things don't seem very clear when it comes to parodies. In particular, most of the examples of things that were legal used only a small portion of a song, and parodied the song being used itself - but there are cases where fair use claims were denied because they did not ridicule the work being copied. They also say "Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies."

Not your lawyer, not legal advice, etc.
posted by Mike1024 at 4:03 AM on October 1, 2009

Use of text, images or even short videos in a review is the textbook example of what "fair use" is for.

And parody is almost always considered protected under fair use, as well (parody by nature seldom gets signed off on by the original artist, after all) as long as it's obvious parody. Many people have done direct rip-offs, only to claim later that they were parodies when caught. That doesn't go over so well in court.

Here's a short blog post by the distinguished Some Guy on the Internet on this topic. An actual lawyer can correct it if it's way off, but that looks about right to me.
posted by rokusan at 4:32 AM on October 1, 2009

If you're trying to be your own lawyer here, keep in mind that Fair Use is a multi-factor test. Unless you have (at a bare minimum) a considerable experience with how American courts handle multi-factor or with fair use jurisprudence generally, the way those factors are weighted (and what matters to the courts) could very well not be what makes the most sense to you, which is why a lay-person making a Fair Use determination can be a very scary and hit-or-miss sort of thing.

Furthermore, Fair Use is an affirmative defense to a basic infringement claim. This typically means that once the plaintiff has made a prima facie infringement case at trial, the burden of proof shifts to you to prove that your use was acceptable fair use. It's a minor point, but recognize that the plaintiff will not be required to prove that your use wasn't "fair." Once the initial burden has been met, it will be presumed that there was no fair use until you prove otherwise.

In other words: "fair use" defenses can be litigious, contentious, and occasionally have bewildering outcomes that can cost people lots and lots of money.

If you intend this to be a business, or you think you would fight back against an infringement claim rather than just closing up shop the minute you got a cease and desist, hire a lawyer now to make sure you don't doom the endeavor from the very beginning.
posted by toomuchpete at 7:08 AM on October 1, 2009

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