Fair Use and Streaming

7 minute read

Fair Use is a defense to copyright infringement, and can legally allow you to use a copyrighted work in your own content without needing permission. However, the limits of Fair Use are narrower than most people think.

Who decides Fair Use?

If Twitch, YouTube, Facebook, or any other platform receives a DMCA takedown request, unless you have a special relationship with the site, your content will probably be removed without any consideration of Fair Use.

This is because platforms are not the ones to determine whether a use is fair or not; only a court can decide that. The platform is just an intermediary between the copyright holder, who is asserting infringement, and the creator, who is asserting Fair Use.

How to assert Fair Use

If you receive a DMCA takedown, you have the right to submit a counter-notification and assert Fair Use. You don’t need to make a case at this point, because the platform will most likely not make any determination; they will merely forward your information to the copyright holder. Then they may either release their copyright claim, or file a lawsuit against you.

If you are sued, you should consult an attorney to help prepare your defense, and determine if it is worth pursuing. Ideally you will have consulted with a lawyer in advance to make sure your project was in line with Fair Use requirements.

Elements of Fair Use

Whether a project is commercial is one element of Fair Use, but there are 4 total co-equal elements. A commercial project can still be Fair Use, and a revenue-free project can still be infringing; all 4 elements get considered and weighed against each other.

Purpose

A judge will consider the purpose of your creative work. Educational, scientific, nonprofit, and critical works are generally given more protections, but aren’t necessarily automatically Fair Use. This element can be thought of as having two sub-elements:

Commercial vs. Non-Profit

Obviously, a work is commercial if it is created to make a profit. But even with no profit, a work could still be commercial.

For instance, works that could make a profit even if they aren’t currently could be considered commercial. Additionally, any content that could be promotional — even if it’s just promoting your personal brand — is also commercial.

Most streams would probably be considered commercial works, even if you’re just doing it for fun and not making any money. However, this is a very fact-specific determination, so circumstances can vary.

Transformative

A work being transformative means that it gives the work a new expression or meaning, or provides new insights and understandings. Simply making it different or making it your own is usually not enough. Transformativeness is also a scale, with greater artistic transformations given greater protections.

The type of content that usually appears in YouTube, Facebook, and Twitch streams — like reaction or commentary content — has mixed success with being considered transformative. In these types of cases, the determination has usually hinged more heavily on the other factors, although there are some examples of highly transformative content, like in the H3H3 case, that strengthen a Fair Use defense.

Nature

It is generally easier to make a Fair Use claim if the copyrighted work you’re using is informational in nature, like published historical or scientific facts.

Uses of entertainment content, which is usually what is at issue in streaming contexts, are generally less likely to be found to be Fair Use. This factor will commonly count against streamers.

Amount

There is no set threshold for any amount of use that is automatically fair or unfair. A common myth is that Fair Use supports using 10 minutes of television or movie content for reactions. The misconception comes from some studios permitting up to 10 minutes of edited footage in certain content. But that’s not Fair Use, it’s permission.

This element is unfortunately very subjective. In general, using less of a copyrighted work is better than using more. More specifically, it is helpful to limit your use of the copyrighted work to just the parts necessary to make your transformative artistic point.

Effect

The impact your use could have on the market value of the copyrighted work is also considered. For instance, if your use could cause fewer sales of the copyrighted work, it’s less likely to be considered legal.

This is a bit broader than it appears at first glance, because copyright laws give owners exclusive rights to derivative works. Even if your work has no immediate market affect, if it could impact a copyright holder’s future market opportunities, this element may still weigh against you.

Fair Use examples

Here are some examples of uses of copyrighted material that may be fair or not. Answers follow. Try to test your understanding.

  1. Betty streams all of Harry Potter and the Sorcerer’s Stone with a face cam showing her reactions, while she gives commentary. Her content is funny and entertaining, and she also provides some interesting insights into how movies are made.

  2. Chris is playing Minecraft while his viewers submit song requests. The music he plays includes top hits from the labels’ official YouTube channels, which are available for listeners to play for free. He properly credits the artist with their name and song title.

  3. Weird Al hears a Michael Jackson song called Beat It, and writes a parody called Eat It. The music is near identical, but the lyrics are changed to be humorous instead.

  4. Daniel reads out-loud several chapters from a Russian fiction novel, which he translates to English so his viewers will understand. The book is not available in English.

Which of these examples do you think are Fair Use, and which are copyright infringement? Because the question is very situation-specific, there may be some additional facts that could push these examples one way or the other, but here is how a judge may examine the facts in these examples:

  1. Betty could claim that her content is educational or critical, both of which are transformative content under the first Purpose element. However, showing the entirety of the movie, even with her commentary, would probably not be Fair Use because of the Amount element. Betty should limit the parts of the movie she shows to only be the parts necessary to make her critical or educational point, or secure a license as the producers of Mystery Science Theater 3000 did.

  2. Even though the copyright holder makes the songs available to listen to for free, Chris is still not permitted to broadcast them without permission. This would not be Fair Use, even though the main focus of his stream is Minecraft and not the music. And although Chris is being respectful by crediting the artist, it does not help with a Fair Use defense.

  3. Weird Al seeks permission for his song parodies, and so it is unclear how a legal challenge would resolve. The example of Eat It is probably less likely to be Fair Use, because the song doesn’t provide a new artistic take on the song Beat It; it simply uses the same music while changing the lyrics to be comical. On the other hand, a song like Amish Paradise or White and Nerdy is more likely to be Fair Use, because they satirize the music and the culture associated with it in a way that provides a new meaning.

  4. Even though Daniel’s reading is unlikely to impact the market of an untranslated Russian novel, copyright law does still recognize that the author may, in the future, exercise his exclusive right to produce translations, and so this example may still be infringement. If Daniel is adding nothing except for a pure translation, this example would be copyright infringement.

The purpose of these examples is to highlight that Fair Use really is narrow, and that multiple factors supporting a Fair Use defense must be present in order to prevail. A careful consideration of all of the elements before creating your work will help make sure you are prepared to defend yourself.

Is video game streaming Fair Use?

Video game streams on Twitch, YouTube, or other platforms are relatively legally untested. On one hand, players often provide substantial commentary while playing, and the act of watching a game is fundamentally different from playing it, so it is possible that the work could be considered transformative and not having a substantial impact on the market.

On the other hand, streamers tend to show the entire game, and for narrative games, this could have a market impact. Additionally, this means the Amount element would factor against a streamer or let’s player.

Ultimately, video game developers and streamers have both seemed unwilling to challenge the tenuous legal standing. For now, most developers either willingly or begrudgingly allow streamers to broadcast their games, so the answer will be unresolved until one or more legal challenges emerge.

Updated: