Making use of fair use

A few days ago, I uploaded a video about the cult German sci-fi TV series Raumpatrouille (often incorrectly referred to as Raumpatrouille Orion). And I took what for me was the unusual step of including some clips from that series.

This is, of course, a risk; and since I didn’t ask Bavaria Film (or whoever currently owns the rights) for permission, what I did might be copyright infringement, i.e. illegal. Or not, as the case may be: actually, since nobody’s sued me, there’s no court ruling on my case, so I don’t actually know.

In this scene, Major van Dyke gives Major McLane a piece of her mind.

And it’s at this point that I must explain that I am not a lawyer. What follows is my personal opinion, but I am not offering it up as legal advice. If you need legal advice on one of your videos (or anything else), please ask a lawyer.

So, the default situation is that using somebody else’s intellectual property without their permission is illegal. But there are some exceptions to this; and in US law (which may apply here, since the service I uploaded the video to is owned by an American company), copyright law includes the concept of “fair use”.

Here’s how it works: if the copyright owner ever sues me in an American court, I can raise the “fair use” defence. The court will then have to consider whether my use of the disputed material was fair. If they think it was, the copyright owner loses their case.

There are a lot of myths about fair use, and I can’t address them all. But put quite bluntly, fair use is a lot less generous than most YouTubers seem to think: in fact, as a defence, it’s quite hard to prove. For example, one of the reasons for this concept is to allow teachers to, say, photocopy pages from a textbook for their students for the purposes of education: this does not, as a lot of people seem to think, mean that uploading an entire nature documentary to YouTube is “fair” simply because the content can be described as “educational”.

When the fair use defence is raised, a court has to consider various things, grouped together in four, broad criteria.

Purpose and character of the use — why am I using that particular content, and how am I using it? I’m using it to illustrate the points I am making: for example, when I say that the ship’s controls look like the result of a trip to a home improvement store, I show some shots of the bridge that feature bathtaps and electric irons, which the characters have to fiddle with to pretend they’re flying a futuristic spaceship. That likely counts in favour of fair use: I can hardly use scenes from anything else to comment on scenes from that show. As for how, I’m actually using the clips unchanged and not being creative with them at all: that counts against fair use. (You win some, you lose some.) On the other hand, they don’t actually make up the bulk of my video: most of the time, it’s just me talking.

Nature of the copyrighted work — is the work I’m extracting from just a series of ideas or facts, or does it have artistic or literary merit? Unfortunately for me, it’s the latter: facts and ideas can’t be protected by copyright, but TV dramas certainly can. A lot of people put a lot of work into that show (as I mention in my video, post-production took an entire year), and I can’t just take advantage of all that work so that I don’t have to make my own show.

Amount and substantiality — how much of the original did I use, and which parts did I use? Here, I feel I’m on much safer ground. I used only a few small portions of the original whole (just a couple of minutes or two taken from two episodes, each an hour long, out of a total of seven), and I didn’t include any spoilers. Those two facts definitely count in favour of fair use.

Effect upon the work’s value — might I be denying the copyright owners of the chance to make money? In this case, quite unlikely: nobody is going to watch my video and decide there’s now no point in buying the DVDs. This last criterion, incidentally, is a lot tougher than you might suppose: if I were to sell a Raumpatrouille T-shirt, featuring the faces of all the major characters, the copyright owner might argue that by doing that, I am making it harder for them to earn money from their own merchandise.

A court would have to weigh up all those things against each other and come to a decision. Personally, I am pretty confident an American court would accept a fair use defence. But unless the copyright owners take me to court in America, I’ll never actually know for certain.