Copyright laws have been around since the eighteenth century, but as the digital world evolves the enforcement of copyright is becoming excessive and is preventing many creative reconstructions and interpretations of copyrighted material.
There is only one saviour if you want to create something of your own while still using someone else’s ‘intellectual property‘, and that is the doctrine of fair use (as codified in the United States Copyright Act 1976, section 107)
Anthony Falzone (retired executive director of the Fair Use Project) describes fair use:
“If you think about copyright as a series of restrictions, fair use is a set of exceptions. It protects your right to use copyrighted material in certain ways… we preserve a whole variety of uses and things that people get to do with copyrighted content without permission. And fair use is really, above all else, a set of factors and considerations that help us figure out which things we carve out of the copyright monopoly, and which things we let people do without permission.”
Youtube itself has many examples of fair use, although it has many examples of copyright infringement as well. It’s hard to draw the line, especially on Youtube. This is explained in great detail in The Complete Guide to Fair Use & Youtube.
The following clip shows a song called “4 chords” by The Axis of Awesome.
This song contains around 40 excerpts of copyrighted music by other artists. That would mean that the band either requested copyright permissions for every single excerpt, or their creative representation of those songs is part of fair use… fair use probably won that battle.
They have taken the same 4 chords and the same familiar lines from countless songs but used them with an original idea. Originality is a strong argument when claiming fair use.
While copyrighted music is a big issue on Youtube, gaming videos can also be a breach of copyright.
The difference here is that most gaming videos actually increase sales of that game or console. There are gaming videos posted that add comedy aspects to the game, and at the same time make it look social and fun. This is why gaming videos on Youtube might be seen as a bit of a grey area and although copyright might be breached, the owners will not make a claim.
Here is one example (I apologise for the message at the start, if you are offended by rude language, skip to 8 seconds before you start watching. If you don’t mind a bit of crude immaturity, feel free to watch his other posts on his channel KYR SP33DY).
KYR SP33DY ‘s channel has 1 million subscribers. His channel is one of the most popular for people who like Xbox Live as well as Call of Duty, Grand Theft Auto and some other games.
“We do not claim ownership of the content you provide on the Services. Your content remains your content. We do not control, verify, or endorse the content that you and others make available on the Services”
“You shall not:
Reverse engineer, derive source code, modify, decompile, disassemble, or create derivative works of this Program, in whole or in part“
So Xbox Live claims the content you create (such as name, gamertag, motto, avatar, or other information) strictly on Xbox Live, to play online, is your own.
However when recording games of Call of Duty, Activision would be the one to make copyright claims on that content posted on Youtube. Currently though, while it’s making them money, it’s doubtful they will make any claims. This is why gaming videos on Youtube are not yet really known to be part of the doctrine of fair use or not.
Without fair use we would not be able to experience the creativity inspired by copyrighted works, and we would not be able to communicate, discuss and enjoy the way people interpret copyrighted works.