Sunday, March 16, 2014

Can I use that song in my video? Third party content, permission and copyright.

This useful article is by YouTube forum Rising Star Top Contributor+Leo Wattenberg and was originally posted in the YouTube Creators help forum.  He kindly granted me permission to re-post it here. If you have questions or  comments for the author, you can comment on the original article.

TOC

preamble and disclaimer


Sometimes it is useful to use third party content such as music, images, other videos or sometimes even text in your videos. However, you usually may not use them just like that. In this article I’ll describe a guideline about how to stay safe while using third party content.

Nothing contained here is legal advice of any kind. This article is for informational purposes only and does not guarantee the accuracy of the information provided. If you have questions, ask a lawyer. Also, this isn't an official help article by YouTube.

the most important rule


The most important rule if you want to use third party material is:

always get permission

It doesn’t matter that you write no copyright intended”, "I do not own the music/image/movie/whatever" or "I don't take credit for this video". It also doesn’t matter that you bought it legally in a store. And it doesn’t matter that you aren’t making money off the video. Unless you don’t have a written permission or licence for it, you may not use it.

While the above statement is true for basically anything that you would use in your videos, there are some exceptions. Copyright expires after some time, usually if the creator is dead for 70 years. So you don’t have to ask Beethoven and Mozart about using their works.¹

There are also other “Limitations and exceptions to copyright”. For example the “Threshold of originality” – simple shapes or other uncreative works aren’t copyrighted. There’s also – more famous – the fair use doctrine. Which leads us to a nearly as important rule:


if in doubt, don’t use it
or
if in doubt, get permission


Why? Because copyright exceptions are determined in court. Even if you would win, it would still be a huge waste of your time and energy.

Also, fair use/dealing is an anglo american (US/UK) thing. There may or may not be similar laws in your country. For example, in Germany (and also in other mainland Europe countries) there is not really a law similar to fair use. If you end up in court in Germany, you can’t defend yourself with fair use.²

How to get permission? Simple answer: Ask the copyright holder. The copyright holder is usually the creator of the work, unless he gave exclusive rights away. In that case the guy/company who bought the rights is the copyright holder.

Giving exclusive rights is common in places where you need a publisher – books, movies, games, music.

about creative commons licences


There are many Creative Commons (short: CC) licences around, usually build up out of the following parts:

Legend: Materials licensed with parts marked red cannot be used at YouTube, those marked yellow cannot be used for monetization and other commercial use, those marked green can also be used for monetization.

  • NoDerivatives (nd): If you remix, transform, or build upon the material, you may not distribute the modified material. This basically forbids any use in videos.
  • Share Alike (sa): you must distribute your contributions under the same license as the original. This is currently not possible at YouTube.
  • NonCommercial (nc): You may not use the material for commercial purposes. This especially forbids monetization, but you can also use it commercially without monetizing, for example to promote your business. Ask a lawyer for further explanation.
  • Attribution (by): You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. You can do that at YouTube both in the description or in a credit section in your video.

This basically leaves us with these for use at YouTube: (click them for more detailed information and actual licence text)

  • PD: Material is in the public domain (usually because copyright has expired)
  • CC-0: Material has been released into the public domain by the creator.
  • CC-by: Material can be used in any way, proper Attribution is required
  • CC-by-nc: Material can be used for non-commercial purposes, proper Attribution is required
  • CC-nc (retired): Material can be used for non-commercial purposes
  • CC-sampling+ (retired): Material can be used for for your videos and other works and for non-commercial standalone redistribution, may not be used for advertisement; proper Attribution is required.
  • CC-nc-sampling+ (retired): Material can be used for non-commercial purposes, proper Attribution is required.

There are also many other free licences, but they are mostly used for software or aren’t as common.

licence laundering


Sometimes, you’ll see a file on a website that claims that the file is released under a free licence but in fact the website is using the image without permission. This is called licence laundering. It is particularly common with photo sharing websites such as Flickr or Picasa Web Albums, or video platforms like YouTube that allow their users to specify a free license for their files. If license laundering is suspected, the file should be not used.

But how does one detect licence laundering? Well, there are a few ways:
  • If you see that e.g. Michael Jackson's music suddenly is CC, it's probably a copyright violation.
  • Look at the source. Is it the real, official site? Does it link to other stuff (facebook/twitter/youtube etc.)? Do these sites link back to the official site?
  • Look at the style. Is there a style, a handwriting visible throughout all works? Is the quality of the works consistent/improving over time?
  • Check the meta content, e.g. EXIF data or descriptions of the file. Do they look legitimate?
  • If you see something like “no copyright intended”, it’s not legit.
  • For music, if the title says something like “cover”, “remix”, “bootleg” or “mashup”, you should check whether you may use the original works as well.
  • Ask the uploader if and how he created the works. They are usually quite happy to disclosure where they got the file from or how they created it.
  • search for duplicates in the web. For images it is rather easy, just use tools like TinEye or Google Search by Image. For other content it might be harder.

links to materials



see also


youtube.com/yt/copyright – information about copyright at YouTube
COM:CB – information about copyright by subject matter. Basically answers “can I upload pictures of…?”-questions. It’s mostly about images though.
COM:CRT – Copyright rules by territory (country).
fairusetube.org – a site promoting fair use in videos. Has lots of information about fair use if you want to use it in your videos.

footnotes


¹ You may have to ask the orchestra which recorded Mozart’s compositions though.
² in Germany, you may quote what other people made though, but it is much stricter than fair use.

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Only minor formatting changes were made to the original article. The title is mine.

Image: Club holds radio dance wearing earphones 1920, Wikimedia Commons, public domain. Text added.

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