Understanding fair use as a video creator

May 15, 2023

Anyone creating video with clips from copyrighted material needs to think about the legality of using content without permission from the original creator. Video creators making reaction or commentary videos to TV, film, and sports clips need to think carefully about how they are using content that they don’t own to ensure that their videos are not taken down or that a copyright infringement claim is not made against them.

What's fair use?

Creators using video clips from other copyright holders without permission rely on a legal doctrine called fair use. Fair use is a legal doctrine that allows limited use of copyrighted material without the permission of the copyright holder. The purpose of fair use is to allow for commentary, criticism, news reporting, teaching, scholarship, research, and other similar purposes that benefit the public.

However, it can get complicated to determine what is allowed or not - and rules vary across international countries and regions. Fair use is not a right, but rather a defense against a claim of copyright infringement. Ultimately, only a judge or jury can determine whether something counts as fair use or not.

Best practices

To prevent yourself from getting a copyright claim against you, there are a few things you can do:

  1. Create your own content: The best way to avoid copyright issues is to create your own original content. This could be in the form of writing, photography, music or any other form of creative expression.

  2. Obtain permission: If you want to use someone else’s copyrighted material, you can obtain permission from the copyright owner. This can often be done by contacting the copyright owner directly or through a licensing agency.

  3. Use public domain or Creative Commons licensed material: If you use material that is not your own, make sure it is either in the public domain or licensed under a Creative Commons license that allows for the type of use you intend to make.

  4. Use copyrighted material under fair use. If you do use copyrighted material, make sure your use falls within the guidelines of fair use. This typically involves using a small portion of the material for commentary, criticism, news reporting, teaching, scholarship research, or other similar purposes that benefit the public. When using a small portion of copyrighted material for commentary or criticism, it is important to consider the purpose and character of the use, nature of the copyrighted work, and the amount and substantiality of the portion used.

Questions to ask yourself

If you’re creating video that uses content from other copyrighted sources, we recommend that you ask yourself two questions before you post:

  • Did you display a majority of the copyrighted content? Could someone use your video in place of the copyrighted material? If the answer is yes, your use of copyrighted video might not qualify as fair use.

  • Did you transform the content by adding new meaning or commentary to the original material? If your answer is no, your use of copyrighted video may not qualify as fair use.

Tips for reaction videos

  • Do not assume that just because you’re adding reactions or commentary that you can display as much of the original content as you want in your video. Using smaller/shorter clips is generally a better practice than providing longer clips of copyrighted material in your videos.

  • The rules apply to all your videos that you create and share with an audience. Video in private communities like Patreon are subject to the same copyright laws.

  • If you want people to “watch along with you,” consider providing time stamps in your video so that your audience can ‘sync’ their viewing with you rather than including the copyrighted video in your content.

Here are some resources to help you think about fair use as a creator that wants to use copyrighted clips in your video.