Fair Use for Content Creators

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Written By Brian T. Edmondson, Esq.

Hi, I'm Brian. I'm an internet entrepreneur & lawyer. I write about all things internet business & law.

Hey, it’s Brian. This article is for informational purposes and is NOT legal advice, cool? Onto the article…

Weird Al Yankovic is a one-of-a-kind artist in the music world. He sells out shows. Records best-selling albums. Even got played a lot on MTV – back when they played music videos, that is.

But what sets him apart from, say, other artists who rose to fame in the 1980s like Madonna, is that Weird Al does it without creating original music

He records songs – and puts them out there – without financially compensating the original songwriter, AND he doesn’t even have to get their permission either (although he often does anyway).

These are songs where Weird Al has taken the music from the original track note for note and placed his own lyrics over, which are always humorous, poking fun at either the song, the artist, or some other pop culture phenomenon – or all of those at once.

In other words, a parody. And that is exactly why Weird Al can use a copyrighted work in this way. 

As a content creator, you know that violating copyright is serious business. You don’t violate it at any cost. The financial and legal ramifications are severe.

But that doesn’t mean you can never use the copyrighted work of other creators, including the most famous ones out there, without permission or payment.

If you already know about Weird Al, apologies for the long-winded explanation. If you didn’t, now you have an education. And now together we can move forward. 

I mention Weird Al because he is a master creator of parody. And parody is a key part of the Fair Use Doctrine.

As defined by the U.S. Copyright Office:

“Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”

United States Copyright Office

Parody falls under criticism and comment. And thus, Mr. Yankovic has become a beloved – and wealthy – hitmaker. 

I mention this case because the Fair Use Doctrine applies to any created works, from video games to movies to books to artwork and much more. Any “tangible form of expression” is covered.

As a content creator, you can use the creations of others in your own creations… if you follow the guidelines as laid by the U.S. Copyright Office.

For example, is it fair use to basically rebroadcast a television show on TikTok a few minutes at a time in little clips? Probably not. That’s why those folks speed up the voices or use other tricks to bypass copyright violations.

But… is it fair use to broadcast that same TV show clip on YouTube while a content creator comments on the action in the scene in a humorous way? 

Can an instructor – and product creator – teaching a TV script writing class to their online students use that clip as a teaching tool? 

Could a celebrity blogger use that clip to illustrate a gossip news article about an actor featured in the TV show?

In all three cases, it’s most likely a YES. No need to secure permission from the copyright holder. That’s even as all three cases involve someone making money.

Why am I saying “probably” and “most likely.” Because fair use only provides guidelines for what is considered fair use, but every case is fact-specific. To be clear, fair use is a defense to copyright infringement – and you would have to prove your use is fair use if you got sued for copyright infringement.

Fair use allows creators to describe, discuss, or comment on a copyrighted work so long as it is done in a so-called transformative way. While transformative is not strictly defined, it is clear that critiques, commentary, and parodies are good to go. 

And, as I said, you are allowed to monetize as well… without permission from the original creator. You don’t even have to pay them a cut of the profits.

Fair Use Outside the U.S.

All the rules and regulations I have described so far are from the U.S. government. However, as you well know, the Internet is worldwide. And that means that as a content creator, you may be subject to laws in other countries. 

And not all countries agree with the concept of fair use. 

There is a case out of Japan that bears a close look. 

A YouTuber named Totally Not Mark found fame for his reviews of manga and anime (comics and cartoons from Japan). He had 695,000 subscribers. Huge numbers. However, one day 150 of his YouTube videos, which he calls nearly three years of work, are taken down for copyright violations.

It turns out that they featured copyrighted material for animation company Toei Animation, which is, of course, from Japan. And in Japan, fair use is restricted to private use or use in schools and libraries. So commentary being monetized on YouTube by a Youtuber was certainly not covered in this strict policy.  

YouTube, as well as many other social media and online platforms based in the U.S., do operate under U.S. copyright law but also respect the laws of other countries where they operate.

Although the application of laws like this is still being debated and fine-tuned, it does pay for you, as a content creator or influencer, to pay attention to this issue.

Where to Go From Here

The Fair Use Doctrine is a boon to influencers, content creators, bloggers, YouTubers, online business owners of all types…

But beware that fair use is not cut and dried. It is not set down what percentage of an original work is covered under this doctrine.  

By design it is ambiguous. But do keep in mind in cases where you impact the original author’s ability to make money… that might not fit fair use. Or if you “copy” the entire original work, that might not be fair use either. 

However, for the most part, the protections the Fair Use Doctrine provides allow the use of copyrighted material in your own works – and may allow you to make money too.