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Does this YouTube video fall within Fair Use?

Los Angeles, CA |

I uploaded a video to YouTube containing video game footage and soundtrack music taken from the game. The video is edited, containing subtitles to make up a tutorial for the game. However, I received a Content ID claim for a music track in the video. I believe that the music soundtrack adds adequate qualitative merit to the walkthrough video and directly supports the educational content being shown. I am not sure whether this is breaching copyright law or not. For reference, the video is posted here: http://www.youtube.com/watch?v=O-_H9vryJYU

Attorney Answers 3

Posted

Obvioulsy we cannot offer conclusive and specific legal advice here, but that said I think your use of the video at large would be fair use. That is, a tutorial would be a direct comment in context on the subject material and should not pose an infringement issue.

But your use of the soundtrack most ceratinly is infringing and I think you know that. There are royalty free music websites out there where you can get what you want for something like this without any issues so that is a much better bet.

If you need further clarification most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
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Posted

I don't think any of the fair use factors fall in your favor. ALL art teaches something. That positive consequence does not make it lawful to use an existing work to create another.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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6 comments

Frank A. Natoli

Frank A. Natoli

Posted

Are saying because of the degree, or in your opinion a "how to" tutorial would never fall under a fair use scenario? I would consider this commentary, like all those Angry Bird tutorials online...

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

I think the nature of the underlying, copyrighted work [highly artistic], the amount and substantiality of the portion taken [a extraordinary, and likely unnecessarily excessive, amount] and the effect of the use upon the potential market [negative effect on sales of the underlying work and the copyright owner’s own potential how-to video] all strongly disfavor fair use. As for the purpose and character of the use made of the copyrighted work the how-to video is, I think, only minimally transformative. It adds no new meaning nor insight to the underlying work -- though it does add information. That FACTUAL information [how to progress through the game] is, however, already present in the underlying work. The how-to video only makes it express, that is, a shortcut to what someone who experiences the underlying game can, and will, figure out on his own. So the value added is minimal. And detrimental to the copyright owner because if the how-to cheats on how to progress through the game become widely distributed the game loses value.

Frank A. Natoli

Frank A. Natoli

Posted

I really disagree with that, respecfully of course. But hey you know, its law and there are always lawyers on either side making arguments. It does go to show why using another's IP for anything can be problmatic because if you were advising that copyright owner your client may be inclined to do something about it and this Asker would be left to make a defense.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

And we even get paid to play these intellectual games. What do you disagree with?

Frank A. Natoli

Frank A. Natoli

Posted

Well, factor 4 is the most important followed by factor 1 right? So, regards to factor 1 we don't really know if there is a "commercial" element to this but there could be. But even so, a tutorial on how to play a game would not have a negative effect on sales because you still need to buy the product from the copyright owner in order to benefit from it. That is, the instructional material does not replace the game. One could argue that it could serve to increase sales if it exposes people to the product and motivates them to become players. I know I don't need to state this for your benefit, but for anyone reading this, the context matters and I am not saying that this is indeed how a court will conclude but rather in my opinion why a fair use defense in such a case has a very good chance of surviving. You make a great point about how the cheating material can detract value, but that is not a sales issue frankly and I don't see that as a very pursausive agrument. I don't think it is realistic for the producers of such games to think they can create a very popular product and then use the legal system to stop people from commenting on it. I mean, if I made a video of me playing monoply to demonstrate my approach to the game and put it on YouTube I would not expect that a court would hold me accountable as a copyright infringer. Thinking about this was helpful as I can see the arguments for either side.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

You're right, of course, that factor four followed by one is [unfortunately] the hierarchy. The overriding question in any fair use analysis, however, is whether the public benefit of the use outweighs the parochial interest of the copyright owner. In short, is society best served by allowing the other's use or by applying the default rule that a copyright owner may enforce its copyright? The end result in this instance is a work that's visually comprised ENTIRELY of the underlying work and which instructs purchasers of the underlying work how to shortcircuit the challenges very creatively built into its game scenario -- challenges that are, in fact, the whole point of buying the game. I think society is best served by NOT permitting such excessive use of the underlying work in order to undermine the appeal of that work. Perhaps a powerpoint presentation showing screen shots from the game. But not more than 6 minutes of the video game itself.

Posted

i agree with Attorney Ballard and disagree with Attorney Natoli on this one. This is not likely fair use and is not likely commentary of the type intended by the statute. Instead, it's a commercial use and a derivative. The primary purpose is profit not comment. The amount taken is substantial, and the effect is to supplant guides and tutorials from the copyright owner.

Having said that, many if not most video game producers welcome tutorials as encouraging purchase of the game. So the practical situation is that tutorials are seldom stopped by game producers unless the game producer makes major revenue off its own tutorialsand sees that revenue being affected by an unauthorized tutorial.

Since this is risky, see a copyright attorney for confidential detailed review and opinion,.recognizing that the real lawyer you need to convince is the lawyer protecting the video game company, as otherwise you risk getting involved in an expensive suit and having a judge decide, with the potential for you paying major damages and the video game producer having no risk of paying damages. S once the risks are much less for plaintiff copyright owner, such suits nearly always settle in favor of the copyright owner, so keep that in mind.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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3 comments

Bruce E. Burdick

Bruce E. Burdick

Posted

S once --> Since

Frank A. Natoli

Frank A. Natoli

Posted

I think that is alarmist, but I do agree that you correct the copyright owner does not have to like it and they are always free to take action. from University of Penn Law Review Article survey of cases from '78 to '05: the outcome of factor four coincided with the outcome of the overall test in 83.8% of the 297 dispositive opinions; while the outcome of factor one coincided with the outcome of the overall test in 81.5% of opinions. in cases where both the first and fourth factor favored fair use, fair use was found in 296 cases out of the 297 cases. the study's conclusion is that factor 4 is number one in importance, followed by factor 1. the other factors are very far followers. In context, I highly doubt that this would be worth while battle for them to invest in especially when they may actually stand to beneift financially as you aptly noted.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Those statistics are really interesting and useful.

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