Authors upload content constantly to YouTube. Occasionally, authors and media users may receive a copyright strike. Why might this occur? Copyright protection is provided by law for any work of original authorship fixed in any tangible medium. If one merely doodles at home while talking on the phone, then that work automatically has copyright protection under the U.S. Code. Copyright owners have exclusive rights in their work including: distributing copies, public performance, and public display of the work. Copyright infringement is the copying of a work protected under copyright law and claiming it as one’s own.
Copyright protection does not cover all works. Under the Idea/Expression dichotomy, facts and discoveries are excluded from protection. The expression of the work is protected, but the idea itself is not. If one uses the expression of another in a YouTube video, their main defense may be “Fair Use.” Fair Use covers the use of one’s work for criticism, comment, news reporting, teaching, scholarship, and research. In determining Fair Use, the courts examine four factors regarding the work in question:
- the purpose and character of the use, especially if the use is “transformative,” which means adding something extra to the original work;
- the nature of the copyrighted work, such as being factual as opposed to creative;
- the amount of the taking, which may be very small as long as the taking is from “the heart” of the work; and
- the effect upon the potential market or value of the original work.
YouTube is not liable for copyright infringement for works published on its platform due to the Safe Harbor Provision of the DMCA. In order to maintain its safe harbor status, YouTube acts on infringing videos whenever its designated agent is contacted by the copyright owner. To protect their work, copyright owners may block the video, mute the video, or block it on certain platforms, such as smartphones or other streaming devices. Alleged infringers have options to lift the block, such as dispute the claim, remove the music, swap the music, or share revenue with the copyright owner. In order to go more deeply into the actions of owners and disputes of copyright strikes, see YouTube’s Copyright page at https://www.youtube.com/yt/copyright/.
About the author: Ben Edison is currently a 2L at Georgia State University College of Law. He is interested in intellectual property law, specifically patents, copyright, and trademarks.