No Copyright Infringement Intended Disclaimer

6 minute read

Content creators, especially those who operate Reaction channels, will frequently rely on a “No Copyright Infringement Intended” disclaimer before their YouTube or Facebook videos, or in the video descriptions. These will occassionally cite Fair Use, and clarify that all rights belong to the original owner.

But are they effective?

Copyright Infringement Disclaimer Example

The following notice appears on hundreds of thousands of websites, YouTube videos, and Facebook pages:

Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, education and research. Fair use is a use permitted by copyright statute that might otherwise be infringing.

Non-profit, educational or personal use tips the balance in favor of fair use. No copyright infringement or commercial benefits intended. ALL RIGHTS BELONG TO THEIR RESPECTIVE OWNERS.

The ubiquity of the disclaimer comes from assuming that the practice of law relies on arranging arcane words in particular orders in the same way that the practice of wizardry does.

In other words, people see other videos with the disclaimer, assume there is something legally meaningful to the words, and copy them to their own videos hoping to replicate the disclaimer’s protection for their own content.

The actual value of the disclaimer can be explored by analyzing each sentence and its meaning and impact.

Under Section 107 of the Copyright Act 1976, allowance is made for “fair use”…

I note first that almost every disclaimer I saw cited the “Copyright Act 1976” as opposed to the “Copyright Act of 1976”, which is both more common and more correct. It seems that it was originally written by a non-expert, and then faithfully copy-and-pasted like a chain letter.

The Copyright Act of 1976 is a federal law that defines most of what modern copyright law is in the United States. Section 107 is indeed concerned with Fair Use, but the bar to reach it is much higher than most people think and higher than the disclaimer implies:

Fair Use requirements

…“fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, education and research…

Although this is part of what determines Fair Use, it is not sufficient to merely fall into one of those categories and automatically have Fair Use apply. There are many more elements courts will consider.

How the four elements of Fair Use apply to content creators is discussed in more depth in another article, but reaction channels are very likely losing on two of the four prongs.

Even if your video makes no money and is clearly criticism or commentary, it may still not be Fair Use if the other elements are against you.

Are you really non-commercial?

Non-profit, educational or personal use tips the balance in favor of fair use.

Commercial or non-profit use does not mean simply whether your video or stream makes money; courts will look at the totality of facts.

YouTube and Facebook are both platforms where people upload content to make money. Even if you, personally, make no or little money, or genuinely don’t intend to ever make money, the potential is there, and courts will consider that.

Consider this: if your content suddenly received millions of views and you were entitled to a five-figure monthly salary from ad revenue, would you honestly turn it down because your original intent was never to make money?

Commercial use can include promoting a personal brand. Even creators who are currently non-profit typically create content with the hopes of gaining more followers, which directly translates into sponsorships and ad views.

In many situations, online content creation is going to be seen legally as a commercial activity.

No infringement intended

No copyright infringement or commercial benefits intended.

Saying that you don’t intend copyright infringement before a video that commits copyright infringement is the same as saying you don’t intend battery before punching someone.

Courts determine your intentions by your actions. The intent element of copyright infringement is satisfied when you intentionally include material you did not create in your content.

In fact, including a disclaimer acknowledging that your work contains unauthorized copyrighted material makes it more likely that your actions will be seen as intentional. More on this in a few paragraphs.

All rights belong to their respective owners.

This is a bit of misapplied legalese. It is more properly used with trademarks rather than copyrights.

Copyrights and trademarks are similar, but protect different things. Trademark is concerned with consumer confusion, and so attributing marks to the proper owners is legally wise.

But copyright only cares about whether the use was unauthorized. Attributing the creator — especially with a notice as generic as “their respective owners” — has no effect on copyright infringement.

Do copyright infringement disclaimers help?

No.

Copyright infringement and fair use can only be determined from an examination of the source work and your content. Saying that you intend fair use or don’t intend infringement has no real legal impact. Whether you’re liable depends on the facts of your situation.

In fact, they might hurt

Including a copyright disclaimer is largely an admission that you know you’re using copyrighted content that you do not have permission to use. That probably wouldn’t be very difficult to prove anyway, but it does make your opposition’s job easier.

So why do so many creators use disclaimers?

Simply, the law is complicated, and knowing precisely how to navigate it can be difficult. Seeing creators use fair use language in their videos and descriptions leads to other creators assuming they had a good reason to do it, and copying it.

People search for boilerplate language to copy and paste, and the same general disclaimer gets circulated, perhaps with a few minor alterations — don’t want to infringe the copyright of the disclaimer of copyright infringement, of course.

And for the most part, people assume “eh, it couldn’t hurt” and simply include a disclaimer. Maybe it could be worth the effort if it dissuades even one copyright lawsuit or DMCA claim.

“For Entertainment Purposes Only”

A minority — but still a surprising amount — of copyright disclaimers included a line about their video being for entertainment purposes only. Much like with the trademark language discussed above, this is misapplied legalese.

Saying that content is “for entertainment purposes only” may be useful for videos dealing with medical, legal, or other expert topics where the creator wants to be clear that the information is for general knowledge.

However, it has no bearing on a copyright analysis. It seems to try to make an emotional plea that the creator’s use isn’t like real copyright infringement, but that is unfortunately not part of a court’s analysis.

But claimants legally must consider fair use!

A ruling from the 9th Circuit in 2015 — Lenz v. Universal Music Corp. — held that copyright owners must consider fair use before issuing a DMCA takedown notice.

There has not been a ruling about whether or not these fair use disclaimers have the effect of putting the copyright holder “on notice” about the requirement to consider fair use. It is likely that, if a court rules consistently with the 9th Circuit — which is certainly not a guarentee — the ruling will be reached regardless of any fair use disclaimer.

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