Speaker 1: Welcome back to another episode of The Lawyer You Know and today we're going to be talking about using copyrighted songs or videos on your social media, in your YouTube videos, how you can do it and if you get popped what happens. So to start out there's really two ways to use this copyrighted information on your YouTube channel. We'll focus on that but it kind of goes the same across all social media. The first way is to get permission and there are two ways you can get permission. Asking for it and them allowing you to out of the goodness of their heart if they actually are the ones that own the copyrighted information. Or number two, the obvious way, paying them for it. Either buying the rights to it or sharing the profits of the YouTube video or whatever it is that you're using it for. And when we say buying the rights to copyrighted information we don't mean buying a song on iTunes. That is not buying the rights to use that copyrighted song in some of your videos. You have to actually find the owner of the copyrighted information which can be the lyrics, it can be the music, it can be the musician, it can be the producer and you have to actually buy the rights from them. Not just buy the song off YouTube or go buy the video off Amazon and now you think you can use it in your videos. That's not how permissive use works through buying the rights to copyrighted information. So outside of permissive use of copyrighted information, the other way you can try to get it done is by the fair use doctrine. And there are four major points that we're going to go through. So the fair use doctrine is a balancing act. They take it under the totality of the circumstances and we're going to go through four factors that they consider when seeing if some copyrighted information was able to be used under this doctrine. First, it comes down to the type of information or copyrighted material that you want to use. Is it highly creative? And that comes down to music and movies and TV shows. Those are always going to be highly creative and those are always going to be something that are held to a higher scrutiny under the fair use doctrine. The second is the type of use. So are you going to use it for commercial reasons or non-commercial reasons? Mostly it's commercial reasons. If you make money off your YouTube page or social media where you're using these videos or songs, that's going to be considered commercial use. Again, scrutiny bumps up. And the third factor is the amount of use. Are you using just a short clip or using the entirety of a song or a movie? Now you can't just go to your YouTube page, play an entire movie and get paid off of the clicks and off of the views of somebody else's movie. That doesn't make any sense. You're stealing their content. You're making money off of a creative copyrighted material that somebody else made and you did nothing to add to. So that's obviously not cool and not going to fly. If you use short clips, you're more likely to be okay under the fair use doctrine. The fourth factor is the most important factor of all of them and that's are you creating something new? So you can use those short clips. You can respond to them. You can react to them. You can answer a question in that clip. We get asked to kind of go through legal movies or TV shows sometimes and talk about whether it's real or fake. So I can play a 30 second clip and say that would never happen in real life. A lawyer would never act like that or he'd get disbarred or held in contempt or thrown in jail or that judge would be off the bench or that client would be in jail and I can respond to those movie clips and I'm creating new art. I'm creating something in addition to what that copyrighted material is. I'm not making money just off of that movie. So that's the really important factor. So as you go through the fair use doctrine, you can weigh these factors and see if you think you're going to come out ahead. You might not always be right and what happens when you're wrong? Number one, the owner of the copyrighted material finds your video. They're going to contact YouTube. That video is going to be taken down. YouTube has a three strikes rule right now but that could change and YouTube could change the rules whenever they want to. Number two, you're going to get sued for the profits that you made on that video using copyrighted material inappropriately. The person that owns that material is going to come after you for either all of the profits or a chunk of those profits that they think they're entitled to because you used their material. It's not a battle you want to get into. The third thing that can happen is YouTube can arbitrarily take down your video because it doesn't pass their scrutiny. They've got their own algorithms and their own processes in order that you have to put your video through to make sure it doesn't get bumped for copyrighted material. It doesn't always meet the same standards as the fair use doctrine. YouTube reserves that right. If they don't allow your video to go, you can dispute it but their decision is usually the final decision maker because it's their website. So hopefully now you understand the balancing act of determining whether or not you want to put a video or a song in your YouTube video or anywhere on your social media that may be for commercial use. There are only two real ways you can do it. Permissive use and the fair use doctrine. So if you don't fit one of those, don't use the video. And if you can, make sure you're documenting the way that you came down to the determination to use this music or video in your YouTube video or on your social media. That's another question answered by the lawyer you know.