From vlogs to makeup tutorials, over 500 hours of footage is uploaded on YouTube every minute. The popular platform has enabled millions of creators and creatives to share their talents with an international audience. It can be easy to overlook the legals when focusing on editing your video or growing your subscriber count.
Earlier this year, LegalVision’s IP law team met with Australia’s leading YouTube creators and identified a number of recurring issues and questions that creatives faced growing their channel. We created this guide with creators in mind to ensure they are complying with the law in their creative pursuits.
What is Copyright and How Long Does it Last?
Copyright gives a creator the exclusive right to use and distribute their original work. So, if someone wants to use your video of a cat dressed as Shakespeare, they need to obtain your permission. Copyright protects the way you express ideas or information, not the ideas themselves. This means you can’t stop others creating a video featuring cats dressed as Shakespeare.
In Australia, copyright is automatic and attaches to any original work (registration is not required). How long copyright protection lasts depends on the type of work you have created.
|Type of Material||Examples||Duration|
|Artistic works||Paintings, sculpture, craft work, architectural plans, or photographs.||Life of creator + 70 years|
|Literary, dramatic and musical works||Novels, lyrics, screenplays, or songs.||Life of creator + 70 years|
|Films||Visual images on a video, or DVD.||Year first published + 70 years|
|Sound recordings||The recording of a pop song (separately from the music or lyrics).||Year first published + 70 years|
|Broadcasts||Broadcasting radio shows or TV programs.||Year of broadcast + 50 years|
When Does My Video Lose its Copyright Protection?
Once the duration of copyright has expired, your video loses copyright protection. After this period, your video is in the ‘public domain’, which means anyone can use it for any purpose without your permission.
What’s the Difference Between Fair Dealing and Fair Use?
Fair dealing is an exception in the Copyright Act 1968 (Cth) which explains when you can use copyright material without permission. Your use must be ‘fair’ to rely on this exception and fall into one of the following categories.
|Fair Dealing Exception||Fair Use Example|
|Criticism and Review||Reading excerpts from ‘Pride and Prejudice’ in your video commenting on Jane Austen’s writing style|
|Reporting News||Using excerpts from Rafael Nadal’s victory speech while reporting on the French Open Final|
|Parody and Satire||Uploading a new song you created based on the melody of ‘Crazy in Love’ to comment on the obsession with celebrity empires|
|Research and Study||Photocopying sheet music while researching styles of contemporary music for your upcoming video|
|Professional Advice||This exception applies only to lawyers giving professional advice. For example, a lawyer may reproduce a book extract when giving you legal advice.|
Fair use is a copyright defence used in other countries like the United States and is broader than fair dealing. Under this defence, use of someone else’s work must simply be ‘fair’ and does not have to fall into any specific category. If there are concerns about copyright infringements outside of Australia, it is important to get advice specific to that country.
Can I Use Copyrighted Music in Video?
If you don’t have permission to use music in a video, you may be able to use it in the following situations.
1. Copyright has expired
You can use music freely if the copyright has expired. Remember that copyright can protect multiple elements within a piece of music. For example, copyright may no longer attach to Beethoven’s Symphony No.3 that you feature as a background track for your weekly Yoga workout. But copyright can still attach to the particular recording you want to use, for example, the Sydney Symphony’s 2007 recording of the same song. Before using any song without permission, check whether copyright has expired in all parts of the music.
2. Using an insubstantial part
If you are using less than a substantial part of a piece of music, you can include it in your video without permission. ‘Substantial’ doesn’t necessarily mean a large part. It can also refer to an important, unique, or easily identifiable part of the music. So it’s probably not a good idea to use even four bars of ‘The Lord of the Rings’ theme for your video of New Zealand’s hiking trails.
3. Fair Dealing
You can also use music without permission if your use falls under a fair dealing exception. To qualify for this exception, your use of the music must be fair, and fall into one of the following categories:
- research or study,
- criticism or review,
- parody or satire,
- reporting news, or
- professional legal advice.
If these situations don’t apply, it’s important that you get permission from the copyright owner(s). This is because by agreeing to YouTube’s Terms and Conditions, you are implicitly stating that you have all the required copyright clearances.
Can I Play Music in the Background of my YouTube Video?
Yes, provided you have two copyright clearances.
You should obtain synchronisation rights whenever you want to create a video that includes music. You can request these rights by contacting the publisher of the song. If you can’t identify the publisher of a song or how their contact details, the Research Form available at APRA AMCOS can help.
You must also obtain permission (or ‘master rights’) to use that particular recording of music. Again, you should contact the record label or owner of the recording for permission.
APRA AMCOS currently licenses YouTube directly for the streaming of videos. This licensing relationship means you don’t need to clear any additional rights (such as the communication right to broadcast) to upload your video to YouTube.
Do I Need Permission from an Artist to Cover their Song for My Video?
If the copyright owner has licensed or precleared a song for YouTube’s platform, you don’t need permission to upload your cover. You can use YouTube’s Music Policies tool to search whether the song you intend to cover is available or blocked in certain countries.
If the song hasn’t been pre-cleared, you’ll need to obtain synchronisation clearance by contacting the publisher of the song. If you are unsure of the publisher of a song or how to get in touch with them, the Research Form available at APRA AMCOS can help.
Am I Liable if I Create a Cover and I Don’t Have a Copyright Licence?
Yes, you may potentially be liable. If a company requested you cover it, they may also be liable. It is important that a lawyer looks over such arrangements to ensure you are not responsible for the company’s mistakes and that you obtain your own licence for protection.
Do I Need Copyright Permission for Mashups?
If you use other people’s videos in your mashup, you don’t need their permission if your use falls under one of these four situations.
Copyright has expired
If copyright has expired in all the videos you want to use, you can use them freely. But keep in mind that a video is made up of different parts, and each part may attract copyright protection.
Your mashup video may also be accessible internationally once you publish it. So, even if copyright protection of the videos you want to use has expired under Australian law, they may still receive protection in other countries which may require you to obtain permission to use those videos.
If you are using less than a substantial part of a video, you can include it in your mashup without obtaining permission. ‘Substantial part’ doesn’t necessarily mean a large part. It can also refer to an important, unique, or easily identifiable part of the video. For example, you may not be using a substantial part if you mix very small parts of Nirvana’s songs in your mashup, and a listener couldn’t recognise the original material.
You can use videos released under open licences, such as a creative commons license. You can also use any YouTube videos in your mashup without permission if they have the following licences:
- CC-BY license: the creator of the video has permitted the YouTube community to reuse and edit their video as they like;
- CC-SA license: you have to license your mashup with the same Creative Commons license as the original video; and
- CC-NC license: you cannot use the video in your mashup if you use your mashup for commercial purposes.
Fair dealing exception
You can use a video without permission if your use falls under the fair dealing exception in the Act. To qualify for this exception, you must use the video for:
- research or study;
- criticism or review;
- parody or satire; or
- reporting news.
If you’re creating a mashup, the parody and satire exception will be most relevant. Ask yourself for each video whether you are making a genuine parody or satire of the material. Jonathan McIntosh’s Buffy vs Edward: Twilight Remixed video is a good example of a mashup parody, as it incorporates scenes from Buffy and the Twilight movies to critique gender representations in vampire stories.
Your use of a video in your mashup must also be fair. Think about whether you plan to distribute or sell your mashup commercially, and whether the copyright owner usually licenses their video material. The bigger the commercial element to your mashup, and the easier it is to obtain a license from the owner, the less likely that your use is fair.
How Can I Ensure My Original Songs are Protected?
Copyright automatically attaches to any original song that you create. But it’s not always easy to stop other people from using your songs or videos without permission. You can protect your work on YouTube by taking the following steps.
Use YouTube’s Content ID service
You can apply to use the Content ID service, which matches your video’s digital fingerprint against other uploaded videos to identify whether anyone has infringed your copyright. You can then decide whether you want the video removed, track its viewer statistics, or monetise the video by running ads against it. It’s not always easy to apply for the Content ID service successfully if you are an emerging artist. If you don’t have a considerable body of original material and frequently upload, you may not qualify. If you aren’t successful in applying to use the Content ID service and come across another creator copying your work, you can submit a copyright takedown notice directly to YouTube to remove the material.
Use a Watermark
YouTube now allows you to add a branding watermark to your work so that you can embed your channel logo on all your videos. If anyone copies your video, the watermark will provide a link back to your video’s original URL. You can decide where you want the watermark to go. The further away it is from the edges of the video, the harder for a potential infringer to crop it out.
Search YouTube content
Sometimes, users mistakenly believe that just acknowledging your name when they use your material in their video will protect them from copyright infringement. So it’s a good idea to search YouTube for your account name or real name regularly. The results will show instances where people have tagged your name or placed your name in the description of their videos. If their use doesn’t fall under an exception (such as fair dealing), you can then ask them to remove the video. Alternatively, you can submit a copyright takedown notice directly to YouTube to remove the material.
Use the © symbol
Marking your video with the © symbol and your name will indicate to viewers that you own the copyright in the work. Using the copyright symbol can also act as a deterrent to potential misuse, and also reminds viewers that they need your permission to reproduce your video.
How Do I Remove a Copy of my Video from Another Website?
If you are sure that the website’s use of your work doesn’t fall under a fair dealing exception, you should notify the site and ask them to remove your video. Your notification should include the following information:
- Contact information so that the website or the infringing website can contact you about the complaint;
- A detailed description of the copied work;
- The URL of the website(s) that copied your video (don’t just state the website name, link to a channel);
- A statement that you are the copyright owner and have supplied accurate information in your notice; and
- Your signature.
If you find an unauthorised copy of your video on one of the following websites, you can contact them by filling in their online form, or by emailing them.
|Platform||Online Copyright Form||Email address|
I Sing Covers on my YouTube Channel. Can I Make Money from My Videos through YouTube?
You can make money from your YouTube videos by allowing advertisements to play alongside or within your video. YouTube will share with you a percentage of any related advertising revenue. You must meet five requirements to monetise your videos:
- Your channel has at least 10,000-lifetime views;
- Your content is advertiser-friendly (for example, avoids sexually suggestive or hateful content);
- You have permission to monetise your cover song by either:
- seeking written permission from the rights holder of the song; or
- the publisher of the song has elected to monetise the song through the Content ID system;
- Permission to monetise your cover song, along with evidence that you own commercial rights to all audio and video content, is contained in a written document; and
- Your content complies with YouTube Partner Programme policies, YouTube’s Terms of Service and Community Guidelines.
How is My Video Monetised on YouTube?
The amount of money you make from your monetised videos depends on various factors, such as:
- The type and pricing of ads;
- How frequently an advertisement will be shown;
- How valuable your channel or video is to advertisers based on factors like the number of likes and shares, subscribers, or watch time; or
- Whether your video addresses a targeted demographic that is desirable to brands.
YouTube’s system algorithms determine these factors. There’s no guarantee about how much you will earn, but generally, the more views and subscribers you have, the more likely you are to earn money from your videos.
Can I Include a Paid Promotion in my Video and Do I Have to Disclose It?
You can include paid product placements or endorsements as part of your video, provided you:
- notify YouTube by selecting the ‘video contains paid promotion’ box in your Advanced Settings, and
- notify viewers, by either:
- including a self-made static title card with the sponsor’s brand name or product information, to be played with your video; or
- selecting the box that says ‘Help me inform viewers of paid promotion by adding a disclosure to this video’. This will add a 10-second text disclosure on your video that says ‘Includes paid promotion.’
It is best practice to disclose all paid promotions to ensure transparency and trust between you and your audiences. Also, if you don’t disclose a paid promotion, you may be reported to the Advertising Standards Board, who can then ask you to take down your ad, which may potentially escalate to prosecution by the ACCC.
If you have any questions about publishing your content on YouTube, get in touch with LegalVision’s media and entertainment law team on 1300 544 755.
Vaishnavi Suryaprakash contributed to this article. Vaish is a legal content writer at LegalVision with a particular interest in intellectual property, performer and industry obligations, and project management in the creative arts sphere. As a lawyer and current Acting student at the National Institute of Dramatic Art, she is uniquely positioned to offer practical, relevant solutions to issues that arise in the performing arts industry.
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