Copyright, Exceptions, and Fair Use: Crash Course Intellectual Property #3

Posted By on November 18, 2019

Hi I’m Stan Muller. This is Crash Course Intellectual
Property and today we’re continuing our discussion of copyright law. In his 2011 book, Infringement
Nation, Professor John Tehranian conducts a thought experiment where he tracks a guy’s
encounter with copyright law through the course of an unremarkable day. Well we’re going to
try this experiment and I don’t really think it will end up being a completely unremarkable
day. I mean, in our version I end up getting a tattoo, which for me would be memorable. Look, I don’t like to front-load the animation
sequences like this, but since we’re doing a thought experiment, we’re going to have
to do it in the Thought Bubble. As soon as I wake up, I check my Twitter feed.
I spend the next thirty-five minutes or so retweeting everything One Direction posted
while I was asleep and each retweet creates what might be an unauthorized reproduction
of 1D’s copyrighted text. The same thing happens with my email, and suddenly, I’m liable for millions
in damages before I even get out of the bed. Once I’m at work, I spend the morning procrastinating
and doodle pictures of Finn and Jake from Adventure Time TPing Frank Gehry’s Jay Pritzker
Pavilion, infringing on Time Warner’s copyrights on the characters and on Frank Gehry’s architectural
rendering. After eight hours of work, my doodles are
good enough to have them tattooed on my left shoulder. I commission this infringing work made
for hire and then I head off to my water aerobics class sporting my fresh ink. When I hit the pool and Esther and Betty and
Dorcus ooh and ahh over my fresh new tat, I’ve engaged in a public display of this infringing
work. Beyond another few hundred thousand dollars in statutory liability, “The copyright
act allows for the ‘impounding’ and ‘destruction or other reasonable disposition’ of any infringing
work.” That means Time Warner can either force me to have the tattoo removed or they can
opt to destroy me. Later, I post a bunch of my friend’s pictures
to my Facebook timeline, and by posting those I’m making an unauthorized copy, distribution,
and public display of her copyrighted photographs. I then head to another friend’s birthday party
where I use my phone to record everyone singing the Happy Birthday song, which still earns
an estimated two million dollars per year and is actively enforced despite the fact that
it likely isn’t even protected by copyright law. At the same time I accidentally capture and make
a copy of the artwork on the wall of the restaurant. So at the end of this hypothetical day, I
could be liable for millions of dollars and I might be destroyed. By the end of the year,
I’d be liable for more than 18 billion dollars, and if I hadn’t been destroyed, I would have a wicked
bunch of scars from all that tattoo removal. Thanks Thought Bubble.
So, this story makes a few key assumptions. Two, a court assessing the maximum statutory
damages per instance of infringement. And three, the absence of the mitigating
effects of copyright exceptions and limitations. To me, the worrying thing about this scenario
is that so much of our normal everyday behavior me, the worrying thing about this scenario
is that so much of our normal everyday behavior puts us at risk of infringing copyright, especially
when so much of our life is digital. To quote Professor Ian Hargreaves: “The copyright
regime cannot be considered fit for the digital age when millions of citizens are in daily
breach of copyright, simply for shifting a piece of music or video from one device to
another. People are confused about what is allowed and what is not, with the risk that
the law falls into disrepute.” In other words, when the law is so broad that pretty much
everyone is a copyright infringer, people stop paying attention to those laws. When
the laws fail to keep up with technology, it loses legitimacy, and we become a nation
of scofflaws. So to make copyright laws work in the digital
age, there have to be copyright exceptions and limitations. And there are. Fair use is
the most famous exception; we’ll get to that in a minute. But there are are also some more specific
exceptions and limitations we should look at. These exceptions cover a lot of different
uses, like reproduction of copyrighted works for blind and disabled persons. They allow
libraries and archives to preserve, copy, and distribute protected works. It also limits
libraries’ liability when a patron uses the copy machine to photocopy protected materials.
The first sale rule under Section 109 means that once a copyright owner sells you a legal
copy of a book or something, they no longer control the distribution rights of that particular
copy of the work. You, as the owner of a lawfully made copy may sell, rent, donate it, or whatever.
This is why libraries can loan you a book and what allows you to sell your books and
music to secondhand stores, if anyone does that anymore. It’s also what allows the three
remaining video stores in America to stay open. So this gives you the right to sell your books
and CDs, but you probably can’t sell the digital music and books that you buy from Apple or
Amazon. The courts say that the first sale right applies only to the distribution right
and not the reproduction right. Since selling your MP3 collection would require making a
copy of those files, that is a no-no. As the law stands now, there is no legal secondary
market for digital works of any type. When you click on that purchase or buy button
you’re really not “buying” a copy of the work, you’re entering into a type of licensing
arrangement. And that’s fine. I mean that licensing agreement is in the Terms of Use,
which I’m sure you read- No? Didn’t read it? Well, I’m sure you clicked ‘accept’ or even
‘I understand and accept’ when you created your Apple or Google or Amazon account, so,
you’re in the agreement. Some types of works like musical compositions
and sound recordings, for example, are subject to compulsory or statutory licenses for certain
uses. These licenses provide legal authorization to use a copyrighted work in certain ways
and for certain purposes, as long as the user pays the required fee and otherwise meets
the conditions in the law. The copyright owner can’t deny you permission as long as you pay
up. This is how artists get away with covering
other artist’s songs. They just pay the fee noticed that cover versions of popular songs
are kind of a big deal on YouTube. Searching “Frozen cover” turns up about
2.8 million results. How does this work? “Frozen cover” turns up about 2.8 million
results. How does this work? Well, in 2011 YouTube entered into an agreement
with several major music publishers to allow cover versions of songs to reside on the site,
with part of the advertising revenue going to the original rights holders. So those are
a few of the specialized exceptions and limitations to copyright enforcement. But by far, the
broadest, most flexible, most controversial, and most famous copyright exception is fair
use. Courts have said the fair use defense allows
them to quote, “Avoid rigid application of the copyright statute when, on occasion, it
would stifle the very creativity which that law is designed to foster.” Fair use acts
like a safety valve. It allows for certain socially beneficial uses that you might otherwise
get in trouble for. To paraphrase an 1841 court decision: “The
progress of learning advances when the law allows follow-on authors to bestow their intellectual
labor and judgment in reworking selections from a prior work, without prejudicing the
profits or prospects of that work.” What? Who would say this? Y’know, Mark, I would
love to advance the progress of learning by bestowing my intellectual labor and judgment
on the reworking of this prior work, but uh, I just worry about prejudicing the profits
of the prospects of that work. Anyway, fair use is an affirmative defense,
which means the defendant must show and prove that the use was fair and not an infringement.
The only way to definitively find out whether something is fair use is by having a judge
tell you it is. And this is a problem when taking a copyright case through trial costs
anywhere from $300,000 to a couple million dollars. Some courts have called the fair
use exception the most troublesome in the whole law of copyright. And they are not wrong.
I mean, the term fair use isn’t defined in the Copyright Act and courts have a lot of leeway
in how they decide if something is a fair use. Courts have to consider all the factual evidence
at hand for each particular case. And every case is different thanks to the huge variety
of copyrightable works and the many contexts in which these works can be used, like classroom
lessons, blog posts, YouTube videos, or in a project where the entire contents of a university
library are digitized. So how to decide. Courts use four factors
to determine whether a use is fair. The first factor is the purpose and character of the
use. Like whether the use is commercial or is for nonprofit educational purposes. Noncommercial
or educational uses weigh in favor of fair use. In the last twenty years courts have
expanded this factor to include consideration of whether the work is transformative. They
look at whether the use actually transforms the underlying purpose of the work by adding
a new meaning or message. Courts often hold that parody as a transformative fair use. Parody
functions as a critical commentary of the original work. Courts have also recently held
that a project to digitize large collections of works and the making available of small segments
of texts from those works are transformative uses. That makes the Google Books project
a fair use. That Google Books decision is currently in the appeals process though, so
it might not hold up. Publishers and authors will argue that merely
copying all these books without adding expression or value other than placing the work within
a highly commercialized digital ecosystem in a crass attempt to attract users, is not
transformative. Google tells a slightly different story. They’d say the project makes these
works searchable, discoverable, and universally accessible, and that that is a transformative
use with significant public benefit. The second factor has to do with the nature
of the copyrighted work. Courts have consistently held that the more original and creative a
work is, the more protection it’s given from copying and it’s less likely that a court
will find fair use. On the other hand, the more informational or functional the plaintiff’s
work, the broader the scope of the fair use defense. In practice, this means that fictional
works tend to have a stronger copyright protection as they’re works of imagination. They’re basically
pure expression. Nonfiction works like news, biographies, and encyclopedias are filled
with uncopyrightable facts. This means they require less creativity to make and they’re
granted less protection under copyright law. The third factor basically looks at how much
of the work you use, and there are two parts to this factor. The first is quantitative
substantiality. That looks at the amount of work you use, like how much of the video or
how many pages of the book. So wait a minute. How did we get so far into an episode about exceptions without rolling the Mongol-tage? Hit it! [Mongoltage Music] The Mongoltage, besides being awesome, is
an excellent example of this factor. We use three clips for a total of three seconds out
of a ninety minute film. I think we have a pretty good case that this use isn’t quantitatively
substantial. The other part of this is qualitative substantiality. This refers to a use that
borrows only the most valuable part of the source work. While I would argue that the
clips that comprise the Mongol-tage are the most important and valuable parts of 1963’s
Hercules vs. the Mongols, a court would probably find that these clips aren’t the heart of
the film. Spoiler Alert! The heart of the film is when Hercules kills Genghis Khan. The fourth factor addresses the effect of
the use on the potential market for, or value of the copyrighted work. What we’re looking
at here is whether the derivative work has harmed the copyright owner’s ability to make
money from the original. Courts try to weigh any public benefit derived from the new use
with the personal gain the original owner will receive if the use is prohibited. If
your use doesn’t damage the original copyright owner’s ability to make money, you don’t
have to show a whole lot of public benefit. It’s just hard to argue that you uploading Interstellar
to your YouTube channel has any public benefit. While these four factors are most often used
to determine fair use, courts can use any other factors that they deem relevant, including
broad considerations of whether the use will advance the public interest and the goals
of the Copyright Act. Unfortunately, this means that there is no clear formula for how
courts determine fair use. Fair use is designed to be a flexible tool, and any rule that’s
flexible is necessarily unpredictable. Yet many people have argued that fair use
has become predictable in recent years. A string of court decisions have expanded
the meaning of what is considered to be a transformative fair use. Courts are carving
out policy-specific areas, like education where uses are pretty likely to be allowed.
User groups have published Best Practices documents, many of which are available online;
we’ve got some links down below. Authors and publishers argue the courts have expanded
the breadth of fair use too far, and that these best practices guides are biased in favor of
expanding fair use. In the Supreme Court case Harper & Row v The Nation, the majority opinion
coined what I like to call the Copyright Golden Rule. Take not from others to such an extent and
in such a manner that you would be resentful if they so took from you. Thanks for watching.
I’ll see you next week. Crash Course: Intellectual Property is filmed
at the Chad and Stacy Emigholz Studio in Indianapolis, Indiana and it’s made by all of these nice
workers for hire. If you’d like to keep Crash Course freely available for everyone forever,
you can support the series at Patreon a crowdfunding platform that allows you to support the content
you love. Speaking of Patreon, we’d like to thank our Headmaster of Learning: Thomas Frank
and our vice principals Kathy and Tim Philip and Linnea Boyev. Thank you so much for supporting
Crash Course. You can get awesome rewards for your support but you don’t get
ownership of our Crash Course copyright. You do, however, get to help people learn.
Thanks for watching. We’ll see you next week.

Posted by Lewis Heart

This article has 100 comments

  1. One day I'm gonna be rich. Then I will finally support you guys on Patreon, to reward you for the much I've learned watching your videos (not only this serie, but History, Economics, etc.).

    Grateful for all of this.

    Keep up with the good work.

  2. "Fair Use" does not exist in Norway's Copyright law. Therefore I think it's VERY important that you specify that "Fair Use" use is a US law. ^_-

  3. QUESTION: He says that "fair use" isn't defined in the copyright statute, but… I thought it was?
    We've all seen the youtube videos that boldly declare that their work is protected "under fair use–" then they have some kind of text that they all quote. What is that, then?

  4. If I get 1 copyright strike does that apply to all of my accounts or do I have to get 3 strikes on 1 account to get banned?

  5. Hi sir, this is interesting topic to me
    i had question, just out of curiosity
    say, assuming if i have an idea ,same idea of creating a wood chair, just as a regular chair with 4 feet made of wood
    and i create a product , register new company
    does that considered as intellectual property?
    i mean, i dont use any of the actual inventor of chair intelligence critical thinking, and i'm not even using their blueprint of how to create the chair

    please enlighten me, anyone?
    thanks in advance

  6. I am creating an educational content and I want to use this video which is public. Am I violating the copyright even there is a reference but not paying any money to crash course

  7. so if i create a review video on my favorite anime a list of top 5 lets say, any use 1 minute clips from the anime and 1 minute of it opening song and make money out of it i am safe?

  8. I think here is the best way to post this question, is it ok for me to link videos of Crashcourse physics in a closed virtual learning enviroment? or am I violating any copyright law???

  9. This is helpful, insightful and entertaining – a rare combination for legal issues! Thank you. (I was looking for templates of wording the "Fair Use Credit" at the end of an educational animation.)

  10. Money and profit, c0ck block freedom of creativity…yet at the same time push to create more original content…

  11. Google's "universal access" and "discoverability" stance is admirable; however, the unlimited availability posit is and may always be arguable.

  12. This is so confusing for me. The way he talks sound like a college professor. I'm still in high school so it is hard for me to understand.
    I really wish schools teach students what is copyright though

  13. Only here because I didn't understand how H3H3's win in court strengthened "The Fair Use Act" – I had no idea what that was 🤷🏻‍♂️

  14. What about YouTube Channels like "Subtitled Trailers"? I am deaf and would like to start a organization that posts captioned versions of trailers and other short form video content onto YouTube to make these videos accessible to Deaf audiences (this is a serious problem by the way, despite the laws in place). To me, this appears to be in alignment with providing braille versions of books. What do you think?

  15. So, retweeting is infringement? How is that possible if, when someone signs up for a service, they give up some rights to anything they post when it's not in a private setting?

  16. Soooo does changing the lyrics of a song and then uploading it to youtube without monetization equal to fair use or not?

  17. Is it possible for you to make a video series for copyrights of specific works? I want to make a comic series but the copyright law is so vague that i dont understand it at all and i dont want to do my paperwork wrong

  18. Do videos like WatchMojo violate fair use? Do they have to get permission or pay a fee to use that much video in their content or does the commentary make it safe to use the video that way?

  19. ?What about tutorial videos and books. Most of them all have the same technics, they are just explained differently…. So can they be in trouble with copyright

  20. Hi Stan,
    First of all may thanks to your video.
    I have a question. If I’m doing a cultural program for a news agency where I report on a story am I allowed to use some part of video footage or video (less than 30 seconds) from another news agency pertaining to that story?
    For example, I want to make a short movie about Censer for some Radio Station and I want to use less than 30 seconds a video which is made by BBC. I also add new music and new story with my own voice and mix with many pictures which are allow to use and I have a copy rights for those picture, I want to know does it legal fair use and free copyright?

  21. Great video Stan. Thank you.
    I am writing a self help book. Am I allowed to take something written on a psychology website and reword the terms and descriptions for my own use? Sounds like it would fall under fair use. Thanks

  22. Sir my 5 years old personal facebook account has been disabled because of copyright content posted by mistake. So now you have any solution to get back my account?

  23. I've got a question… Is a fan fiction not covered under fair use?
    I would it be considered an transformative work if your making up a modified plot and adding characters that didn't exist before?
    Please, I'll been wondering about this for years.

  24. Quick question: If an album review makes it fair use to use a short clip and the album cover in my review and if it is, let's say a bad review, isn't it limiting the creator from making money? Making it not liable for fair use?

  25. For the Google case, for the most part, I've only used Google Books pdfs for school and it looks like that goes with a majority of people as well. If they really have an issue with the "educational purpose" of these Google Books, Google could fix that easily by making Google Books a .edu domain rather than a .com domain. At least, that's my view

  26. What if you choreograph a dance to a song? I've seen so many choreography videos..would this be protected under fair use?

  27. the entertainment lawyer YT channel says not being paid is almost inconsequential, so is the amount used of another's copyright – except as it impacts their income. & also that the education protection is not a protection at all. & playing short clips, or under 10secs of music – also not a protection.

    tho you do kind of say that. all under the "its complicated" clause & only a judge decides.

  28. Some other youtuber took down my video for copyright infringement, even though i only used a single frame of the video for criticism purposes

  29. Watched all 3 in a row today, thanks for making me laugh, and for all the info. I hope in the 3 years since you made this not much has changed in terms of the basics. I know USA copyright is about to change for the first time in decades, its about time for this new global service that will administer copyright law for the digital world

  30. Was just about to launch a new product on Amazon and the supplier informed me they changed the color of the product to avoid copyright. Is it that simple? Does that avoid copyright laws? I did check in advance for a copyright online and didn't see anything. Obviously, I needed to dig deeper.

  31. I have a question considering fair use.
    I make NBA commentary videos, about events or players in the NBA. I don't use any copyrighted music, but I do use NBA clips. And when I do, I'm always commentating over them. I've recently had 2 of my videos Content ID'd by Broadband TV for the first time, and I'm wondering if there is any legitimate claim for fair use here? If anyone needs a reference, my last 2 videos uploaded are the ones being content ID'ed.
    Any help would be appreciated!

  32. 4:15


    Someone could secondhand sell their mp3 player with any songs they had legally digitally purchased, couldn't they?

    Mp3players are a dime a dozen, so if you bought multiple mp3player songs per mp3 players and then utilized the extra storage space to fit a compilation of legal digital distributions of CD compilations (like kinds on itunes stores); and then did that per mp3 player, and then sold the physical mp3 player medium second hand to rural areas without an internet connection: hmm… 🤔 you know?

    Would that be legal?

    Just curious. Cos to me: it sounds pretty legal (and possibly like a way to financially profit (although I myself am not that desperate I just like explore out of bounds)). Cunning, emergent, but legal-sounding.

    Is it legal?

  33. i have a question , let's say i buy loops and create music with those loops (sounds + vocals ) does it fall into the fair use since i am changing it ?

  34. Any use of any copyrighted work where it is not done for profit should be considered fair use. This would save a TON of copyright issues that pop up. The only infringement lawsuits that should be valid are the ones where someone was trying to make money off someone's intellectual property. All that is needed is a simple redefinition of "fair use".

  35. Is the creation of an info-poster using verbatim text from a science book considered a transformative work? What if the text is paraphrased?

  36. What's the legality of incidental use of trademarked images? For example, shooting a film that takes place in a video store will obviously show posters and dvd covers. The lack of these elements makes it difficult to make the setting convincing. Where's the line between incidental use and trademark violation?

  37. Okay yes I agree cause I am like everyone is guilty of infringement. I feel like it is the author's responsibility when it comes to not wanting copy's of their work or ideas to come to light. If you walk into an exhibit and the exhibit says no cell phones cause this is original art and we don't want it displayed to the public and to do so you are fine with $$$ thousand dollars they have that absolute right but if you never bring that expectation out to the public you can't go around sueing all of sudden cause maybe photos from exhibit gets popular and people end up making hundreds to thousands of dollars than you cause at that point what the person does to make the artwork more appealing or changes made becomes an original artwork of another author. What's happening is that people in the world is creative and resourceful and that some people end up making alot more money with a masterpiece than supposedly the original author who end up making less from it. The supposed original author should have took extra precautions and if so then yeah chip in to some of that money but if didn't don't try to leech off someone else work or idea.

  38. If I don't want something to be seen by the public i never ever post it online or i keep it locked up cause once it's posted or you allow an opportunity where someone can just spring out their phones it spreads like wildfire. Infrigement and copyright laws to me from that point has expired especially if you didn't make any physical initiative of preventing it. That to me is the new rights in the digital age. There are some people who purposefully ignore certain rules that are set in companies and do illegal copies; I believe those people should be sued.

  39. I realize distribution and copy is separate. How a person distribute a work is out of the author's hand but copy it's work; in assuming the author assured some legal protection and has copyright rights has the right to fine if such a situation happens.

  40. Great Job. We are impressed. Greetings from mexico. We ourselves try to educate the audience about copyright and you’re a great inspiration.

  41. Let's say a video publisher has published a work to their website, and only made it viewable by those who have financially paid for access to that work. If someone were to copy that work, post it in full publicly while also providing their their own real-time commentary (a reaction video), I would argue that still violates that 4th point, where you are directly preventing the owner from making money on their own content.. agree or disagree?

  42. Just been rejected for monetization by YouTube even though all my videos are 'transformative', they easily 'add new expression or meaning to the original' but I guess YouTube doesn't care about that 🤔

  43. Gud day.. How about if I'm going to make videos of me making figures(clay) of movie characters, game characters and anime characters.. Is that considered as copyright??

  44. I own my computer. By this alone I declare that, whatever I put on it, is mine. Why would it be someone else's? It's an extra copy. What? Do they need to own every copy? If I were a wealthy old artist I'd be honoured if I'd inspired someone to the point of creating work like mine. I can't understand why anyone should feel any different. I am an amatuer musician. I really love doing it and I don't mind if someone downloads a copy for themselves. In fact I love that. Free the music and allow people to play what they want, where they want and how they want to play.

  45. You have inspired me. Fingers crossed that Youtube and Adsense approves me to move forward. Love your Buy CrashCourse merchandise. Serious high tech

  46. Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies. This has been happening to me on Facebook and YouTube for years now. Yes corporate hackers and thugs have messed me up good here.

  47. The real abuser is the legal system. A subset of professionalism. Hell, in the old days they would just knee-cap you, and take back their horse. No stress!


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