Dateline NBC (aka “The Murder Show”) recently aired an episode about a California farm manager who was killed by an explosive device that used a spring-loaded rat trap as part of its triggering system. Thus, the show featured numerous YouTube clips of rat traps doing all sorts of awesome and violent things (no actual killing of rodents, thankfully) — some of which turned up in the browsing history on one of the suspect’s home computers — but Dateline didn’t identify the creator of those videos.
In the above video, YouTube user TAOFLEDERMAUS shows how a number of his popular YouTube clips were used on the NBC show, and how he received no on-screen credit. Additionally, in almost all instances, the video has been cropped in such a way that his identifiable mark is no longer visible in the corner of the screen.
He says that his videos have been used by numerous news outlets in the past but that they have generally sought permission and fully credited him.
We don’t know the ins and outs of this particular situation, but we did talk to a lawyer who knows an awful lot about fair use and copyright to shed some light on this complicated issue.
So can a news program just take my YouTube clip without asking?
There is no definite answer to that question, explains our legal expert.
“Copyright is not an absolute,” he explains. Section 107 of the Copyright Act permits “fair use” of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
For example, Harvard professor and Creative Commons co-founder Lawrence Lessig recently found himself in a protracted battle with YouTube because a lecture he’d posted on the site contained copyrighted songs and a clip of The Daily Show. Interestingly, The Daily Show regularly, and correctly, uses copyrighted content without permission under the umbrella of fair use.
The law doesn’t set out hard and fast rules about how much copyrighted material one can use without crossing the line between fair use and copyright infringement. If a news story quotes a sentence or two from a book that is relevant to the topic of the story, the author of the book would likely have a hard time saying this isn’t fair use. But if that excerpted text grows into multiple paragraphs, it becomes more and more difficult to claim fair use.
Perhaps the easiest way to talk about fair use isn’t in the abstract, but through examples.
Let’s start with the premise of a YouTube user who posted a video about how to build a dining room table.
A news program does a story on “How to Build a Table” and uses the YouTube clip in its entirety with no critical response or editorial addition to the content of the clip. This would be difficult to defend as fair use as there is nothing transformative about the way in which it was presented.
The news program shows the whole video without permission but then has an expert on to criticize or warn viewers that the information presented in the video might be misleading or incorrect. This would be a more defensible fair use claim, as the segment is about alerting consumers to potential hazards, not merely showing the video as standalone content.
Take the same situation as in Example 2, but the news program crops out or otherwise covers up a logo placed on the YouTube video by its original creator. According to our expert, if the news program has a justifiable fair use claim, it’s difficult to argue that cropping out a logo somehow negates that fair use claim. The real problem with cropping is when it’s done in furtherance of violating copyright, which we’ll get to in a few examples.
The news program does a table-building segment and does a montage of quick clips of how-to videos, talking briefly about how DIY videos are now all the rage, before then showing its own tips on making a table. This would likely hold up to a fair use claim because the clips are being used to demonstrate the trend and they are brief.
Additionally, it’s hard to argue that the copyright holder is harmed, as the short clip does not provide viewers with any significant amount of the information that could be learned from watching the whole table-making video.
The news program is doing a story on a class-action lawsuit against the manufacturers of the type of table saw used in the YouTube clip. The news shows a long segment of the YouTube clip to illustrate something relevant to the lawsuit; perhaps that it goes against claims made by the plaintiffs. This is another example in which it would hard for the copyright holder to fight a fair use claim.
The news program has a YouTube channel that it uses to upload things that didn’t make it on air, like extended interviews or behind-the-scenes footage. It decides to upload the table-making video wholesale and covers up the original author’s watermark with its own mark. This is hard to defend as fair use, as the news program is not only using the full-length clip, but is also arguably trying to pass it off as content that it created.