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Free and Fair use commentary/review question/DMCA and revenue

Fairfax, VA |

If one shows clips of a film, TV show, Video game, or song for the use of commentary in order to review the work in question, can this fall under Free and Fair use? (i.e. video format obviously) What if one were to make money off of ads that would run on the video or the page the video is displayed on?

Are there caveats to this that I might need to know?

Since I have my first response - thank you by the way. From what I gather (as I have presumed) free and fair use can be arguable and costly in court. Suppose one takes a "vlog" of mine and intercuts their commentary on it. If this is my vlog and I make money off of it, I could get it removed if they violate the four sections. Here is the additional part, suppose a site like You Tube just asks for verification that one has permission from the copyright holder regardless if it violates Free and Fair use. They are, as I assume, under their rights to determine what they will allow to have ads run on the website. For example, one can post something and if he or she does not check "enable revenue sharing" then they will not remove it - if he or she checks to enable ads and they cannot verify he or she has have , then they will remove it.

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Filed under: Intellectual property
Attorney answers 1


In order for the use of a copyrighted work to be "fair use" it has to qualify under a 4 part test: (1) purpose and character of the use & whether it is commerical or nonprofit; (2) nature of the work; (3) amount of the portion of the work used in relation to the copyrighted work as a whole; and (4) effect of the use on the potential market for the vlue of the work. So, what you may think in your mind is fair use may not be so in the mind of the copyright owner, nor of the court.

Fair use is a defense to infringement. That means you usually get sued first and then raise it. It'll cost you $10,000 to get out of the lawsuit

If you are running ads that are showing the vids, etc. that would be de facto commercial use in my mind.

Go to talk to a lawyer and show him or her what you plan on doing. Be specific as that's going to impact on the ultimate answer. Good luck.

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