Does this YouTube video fall within Fair Use?

Asked over 1 year ago - 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)

  1. Daniel Nathan Ballard

    Contributor Level 20

    3

    Lawyers agree

    Answered . 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... more
  2. Frank Anthony Natoli

    Contributor Level 20

    2

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . 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
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  3. Bruce E. Burdick

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . 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... more

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