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Sunday, November 10, 2013

Protecting Your Children When Posting Videos on Social Media Sites Including Facebook and YouTube

By Steven Shape, IP Attorney

Your children post videos to YouTube every day.  Did you ever think they could be exposed to significant damages by these postings?  They certainly can…..

You Tube and Facebook can be problematic for the unsuspecting youth when simply using the sites to stay connected with friends.  When publishing a video on YouTube, Facebook or other social media sites, as a parent you must consider three important points to be sure your posting is safe from legal ramifications and potential damages:
  1. Is the video original?  Has the source content been changed to transform it or give it a different meaning?
  2. Is the video commercial or not?  Is the creator making money from the publication?
  3. Does the published video compete with the market for the original work?  Would a viewer obtain the same benefit from the publication that they would from the purchased video?

The Center for Social Media of the School of Communication of American University has recently published the Code of Best Practices in Fair Use for Online Video.  According to the Code (, fair use likely exists if the video is:
  • commenting on or critiquing copyrighted material;
  • using copyrighted material for illustration or example;
  • capturing copyrighted material incidentally or accidentally;
  • reproducing, reposting or quoting in order to memorialize, preserve or rescue an experience, an event, or a cultural phenomenon;
  • copying, reposting or re-circulating a work or part of a work for purposes of launching a discussion;
  • quoting by recombining elements to make a new work that depends on the meaning of relationships between the elements (often unlikely).

While other uses can be considered fair use, it would depend on a court’s interpretation of the facts in determining the ultimate outcome.  Fair use has been found by courts in many situations, such as:
  • news reporting including clips and commentary;
  • mash-ups and fan-made music videos including anime music videos;
  • filming yourself singing a copyrighted song;
  • movie reviews containing clips of copyrighted films;
  • video game tutorials with commentary or a walk through;
  • video logs (V-logs), video documentaries and pod-casts;
  • parody videos including political parody (which comments on the original work) and satire (which comments on an unrelated subject);
  • documentary or home videos which incidentally include or capture copyrighted material.

Courts have found the following use not to be fair use in the circumstances and facts presented:
  • clips from movies and TV shows that are not modified or edited
  • music videos produced professionally;
  • music included in a soundtrack to a commercial or other performance for financial gain (found to infringe the artists synchronization rights); and
  • lyrics videos playing the copyrighted song with a posting of the lyrics and pictures on the screen is (usually not changed enough from the original to be considered fair use).

These examples are not comprehensive, but the factors typically reviewed by the courts include whether the work is non-commercial, changes the original work, uses no more of the copyrighted work than is necessary, harms the market, and is a substitute for the original work.  The commercial aspects of publishing a video are not solely determinative of its status as a fair use.  However, such commercial benefits, when found, will reduce the chances that work will be considered a fair use.

YouTube typically requires proof of license for the posted material, so simply claiming fair use may not be enough to satisfy YouTube and avoid a takedown notice.  To properly protect your children when posting such video, you are best advised to discuss the matter with an attorney versed in copyright law and intellectual property matters.  As you can tell, posting on YouTube and Facebook seems innocent, but it’s an area that is fraught with land mines for the unwary, especially for kids and young adults who are just trying to have a good time.

Disclaimer: Please note that this article does not constitute legal advice, and should not be relied on, since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive  consultation and review of all the facts and documents at issue. This post does not create an attorney-client relationship.

© 2013 Steven M. Shape  All Rights Reserved.

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