The Expert's Guide to Fair Use & Copyright on YouTube: TubeTalk 195 with Rian Bosak

So you've created some videos, and they all live happily on your YouTube channel. Then you notice that somebody else has taken your work and used it on their own channel, claiming fair use. Are they actually allowed to do that?

Can you take somebody else's music and use it in the background of your videos as long as you credit them in the description? Do you really know your rights when it comes to your content and what you can and cannot do?

On today's episode of TubeTalk, we talk to one of the online video industry’s leading expert on digital rights management, Rian Bosak from SuperBam. Rian really understands content creators, really understands copyright issues and knows how to get those rights back to the rightful owner so the rightful owner can actually make money off the hard work they’ve poured into their content. In this podcast you will learn:

• What is considered fair use and why
• How creators can protect their ownership of video content
• Why many creators are missing out on revenue due to copyright violations

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The Expert's Guide to Fair Use on YouTube: Full Transcript

Liron Segev: Rian, welcome to TubeTalk.

Rian Bosak: Thank you for having me. I'm super excited to be here.

Liron Segev: Okay, so Rian, let's start at the top. I upload my video onto YouTube. I own that video. I own that information. It's my intellectual property. Is that where we start?

Rian Bosak: Yeah, I think that's right. I mean, I think one of the most basic things that the content creators need to understand is just what their rights are, when they own rights, what they have to do to own those rights, and kind of where that starting point is.

So, look, anytime you create something and put it into a fixed transferable format, you own a copyright. You don't have to register that copyright so there is no requirement to go to the US copyright registry office and register your content there. Once you put it into a fixed format you have created a copyright and you can do what you want with that copyright. You can sell it to someone else, you can upload it to a digital platform and put it out to the world for everyone to see. But it's really important to understand that that is a thing for you as soon as you have created something unique that you own.

Liron Segev: Okay. So it's effectively like owning a physical thing that I could lease it out if I want to. I could give it to you to destroy. It's my choice to do with it as I please, since it belongs to me.

Rian Bosak: Exactly.

Liron Segev: Okay. So now that we understand that, so I have a piece of content, I've shot my YouTube video, I uploaded it, I gave it a beautiful title and a thumbnail and all that good stuff. And then I put it out into the world. Now I still own it and if other people go ahead and share that on my behalf, I'm totally okay with it and they're not infringing on any right. In fact, we encourage them to do that. That's correct?

Rian Bosak: Yeah, absolutely. I mean, if you want to allow people to repurpose your content, that is completely within your jurisdiction to do so.

Liron Segev: But now we have a situation where people are maybe reacting to my content or maybe they take a piece of my content and they add commentary to that. What happens in that case?

Rian Bosak: So this really gets into a lot of what fair use is meant to address, right? And let me give the caveat before I start down that path. Look, fair use is really up to a judge to decide. It's a defense that someone can use against a claim of copyright infringement. And if you're going to argue a fair use defense, you should always consult your lawyer prior to doing that.

That's a really important piece. It's extremely complex. There's four points to it and there's kind of a certain type of content that really fair use was meant to allow for, which is news, nonprofit, education, those sorts of things that it's harder for those type of companies to come up with the money to be licensing content, whereas if you're doing it for commercial purposes, that's a very different use of content.

So, look, when it comes to a lot of react channels, I mean, they're all over YouTube, right? Like you've seen thousands of these things. In large part they don't really fall under the exclusions for fair use. They're not really transformative. They're not really adding anything. I mean, most of the react channels that are out there kind of have an intro of somebody saying, "What's up, guys? You've been asking me forever to react to this video. So today I've got creator X, Y and Z's video up for you, and let's just hop into it."

And then they play the entirety of the video, which gets into one of the four points of fair use, which is, amounts to substantiality of the work taken. And over the course of the video they'll just be like, "Oh, wow. Oh, that's crazy. Oh man, I love that thing."

And then they come to the tail end of the video and they wrap it up with, "Well, guys, well, that video was great. Make sure that you leave a comment below about what you thought about my reaction or what you thought about the video. Smash that like button and subscribe. Let me know what you want me to react to next and I'll see you guys next time." Right?

Liron Segev: Right. Right.

Rian Bosak: So, this gets into, again, the four points of fair use. What's the purpose and character of the use? Oftentimes these are people that are trying to create new content off of existing content and create a commercial base for themselves, which kind of puts everything into a little bit of a wonky balance, the nature of the copyrighted work. So was the work that you originally took out for commercial purposes? If that was out for commercial purposes and your content is out for commercial purposes, that puts them really opposed to each other.

The big question, like I said earlier, is what is the amount of substantiality of the content that has been used? If you've used the entire video and reacted to the whole video, it provides the question, "Okay, if someone were to consume your piece of content, would they need to go back and consume the other piece of content?" Which the answer, if you've used all of it, is probably no.

Which gets to the fourth point of fair use, which is effective use upon the potential market. So, basically by creating this piece of content, you've removed the need for someone else to go consume that content. So, in large part, react videos don't really fit under what fair use was meant to address kind of for all of those purposes.

Now there are ways in which react content can lean more towards fair use if you really are adding to the conversation about it, if you're using limited portions of the piece of content to illustrate the point you're trying to make. If you're talking about how that piece of content reflects on public affairs that are going on or that sort of thing, that can lean you more towards it being fair use.

But again, as I said when we first started this was, keep in mind this is a defense, right? So if somebody thinks that you've infringed on their copyrights, you can say that this is fair use and talk about that in a discussion with them that ultimately is really on a judge to decide if it were to get to that level of being litigated.

Liron Segev: So the onus is on who to prove that it's fair use. Is it on me, as the person using that content reacting, or is it on the original content creator to say, "This person has used my content."

Rian Bosak: Yeah. So, in a fair use defense, the onus is really on you to take whatever you have created. So if it's a react video, take your react video, hold it against these four points of fair use, and try to articulate why it would fit that legal exclusion under the copyright law.

Liron Segev: Okay. So, let's just go through those four points one more time. What are the four points?

Rian Bosak: Yeah, so the four factors of fair use are:

• The purpose and character of the use
• The nature of the copyrighted work
• The amount and substantiality of the portion taken
• The effect upon the potential market for the original content

All of those things really have to be balanced and factored together. There's no one smoking gun that creates it as a strong case for fair use. You really have to measure it against all four things and take that into consideration when you're trying to assess if your content could fit the legal exclusion for fair use. These are super complicated.

I mean, if you were to start to unpack some of the cases that have been litigated, it gets muddy really quick and even different judges have fallen on different sides on the same points of this.

So it really depends again, how much did you use? Was it really transformative? Did you really take this thing and talk about it and use it to illustrate an original idea or point that you have that you're trying to make?

Liron Segev: Okay. Okay. So, it's not as simple as one, two, three and four, when I've got three out of the four, therefore I'm perfectly fine. What tools do we have at our disposal for this?

Rian Bosak: For the standard content creator most people have is some ability inside of Video Manager to locate copies of their content. That's the very base level service that YouTube offers. And if you can do that from your Video Manager, it's what's called Content ID Light. It is a version of Content ID, which Content ID is a product that YouTube created back and launched in 2007 that allows you to deliver reference files to YouTube or copies of your videos that help you scale this intellectual property management.

Liron Segev: Is that almost like a fingerprint of your particular copy that you know that that's your original content that you uploaded?

Rian Bosak: Yeah, exactly. It's an exact copy into a separate server at YouTube that basically you can define to YouTube how you want copies of that content to behave. And that can be to monetize the content, track the content, block the content, or take down the content.

Now to be clear on takedowns, I think there's a big misperception that YouTube is issuing these takedowns, and this is done by "copyright parts" which is not the case in particular with takedowns. Takedowns actually require you, even when you have access to more product functionality, to fill out a form and actually issue that copyright strike. So that process can't be automated. But discovery under different policy types actually can be automated and then content is reviewed and a decision is made as to whether it matches your reference file or not, but at a manual level.

Liron Segev: I don't have to do anything extra. In other words, if I upload my video onto YouTube, do they kind of get that fingerprint Content ID? Do they create that at that point, or do I have to go into another system and tell them, "Hey, this belongs to me."

Rian Bosak: There's really two systems, right? One is, if you're an individual creator, there is this... you may or may not have access to it. Not everybody has access to this so it's something that you can apply for and YouTube decides, but this ability to kind of find some content.

Or, there are companies like SuperBam that can actually help you deliver full reference files into the system and have access to even more functionality that YouTube provides called manual claiming where we can help manage our copyrights on the YouTube platform.

Liron Segev: So if I'm just using the default set of tools, I may or may not have the system in my Video Manager in the New Studios, no longer Studio Beta, luckily. In the new Studio I am going to the copyright option and see if somebody else has used my content and then give them an option to either email them and ask them to remove it or issue them the notice to get off the system. However, that's not going to get everything, right?

Rian Bosak: Yeah, no. So, Content ID definitely has some restrictions mostly based around time code. So if the match isn't long enough, Content ID won't find it. And that's why in really a robust rights management strategy, you also need to have human beings that are looking for more of your content trying to find it out there.

Liron Segev: Okay, so now we're moving towards the SuperBam arena where, if I am maybe not an individual creator, maybe I'm part of a bigger corporate or maybe I'm in the music industry and everything is royalties and I need to be able to be paid out and pay my artist out, I'm not going to just rely on the default tools. SuperBam really is going to come in and help me in this particular case, right?

Rian Bosak: Yeah, exactly. That's exactly what we do. So we do both sides of it where we both deliver your reference files into the system and then we have a team of people who search for more of the content and where we find that content we're able to place claims on it.

And usually you need to use manual claiming for instances where people are doing compilation videos or maybe short form clips that really don't fit the exclusion for fair use or any of the other legal exclusions that we wouldn't claim a video for. There's quite a bit of that. So it's really important that you do have both sides of it to be properly managing your copyrights.

Liron Segev: Okay. So this is getting more in depth. With all your years of doing that and with your customer base, have you found content landing up in weird and wonderful places that we definitely would have missed if we just did our own search?

Rian Bosak: Yeah, all the time. Again, talking about compilation videos, you see so many compilation videos out there, whether it's stuff like FailArmy where it's just a bunch of Fail videos or People Are Awesome. Those are properties that are owned by Jukin, so those are all licensed videos.

But so many other people take that type of content and repurpose it in their own version of something like that, and then blast it all over the internet, not just on YouTube, but onto Facebook and Instagram and Twitter, literally any platform they can get their hands on trying to build an audience off of that stuff.

Liron Segev: Well, and monetize, I suppose, as well.

Rian Bosak: Yeah. I mean most frequently these people are doing this to monetize, whether it's native on the YouTube channel that they're trying to build or they're using that as leverage to push to a website or something else, that's how people tend to repurpose content.

Liron Segev: If I'm your client, would you come to me and say, "Look, we discovered your content here, here and here. What do you want to do?" What are my options?

Rian Bosak: For our clients today, we help them manage their intellectual property rights on YouTube. Every time we onboard a client we have a conversation about what policies they want, what things they do want to allow, so it's very custom here, and then go ahead and implement those policies out there.

The other platforms, they actually haven't really built out a product functionality to do this kind of stuff yet. Facebook sort of has it with Rights Manager. It is takedown only, so that is something that we're really hoping that they build out better and make more available to more of their clients. But right now, today, off of YouTube, it's very difficult to manage these rights short of sending cease and desist letters and/or trying to contact the platform directly to get the content removed.

Liron Segev: Okay. So if we go back to then focus onto YouTube, once you do find content that's out there and that content maybe now has got 500,000 views and all that revenue should have technically come to me, what can I do about this at this stage?

Rian Bosak: In working with a rights management provider like SuperBam, whenever we make a claim, any monetization from it is go forward from there. Right? So if 500,000 views have already occurred, you can't go back and "recapture" that revenue.

But you can monetize any future views going forward from there. I mean, the option is always there if you want to reach out to the channel and try and go chase down whatever money they made, you can totally do that and you'd have the rights to it. But that can be very expensive to do and the dollars that they've made may not be significant enough to actually get to do that in all the cases.

So typically what most people do is they'll just monetize going forward and ignore what's already occurred. But part of working with somebody like SuperBam would be to mitigate those things at all. Right? If you have the content in the system, the likelihood that we're going to be able to find it before it gets to 500,000 or even 500 million views.

I mean, we have several videos that we've issued claims against SuperBam that are in the hundreds of millions of views of repurposed content. It's better to have all that stuff in the system and start from the beginning, than try to go chase down things that have already occurred.

Liron Segev: Okay. So, essentially, if I sign up with you and you have now my reference files, the odds of somebody being able to use it elsewhere without you knowing are significantly less than if I just uploaded then react to it later on.

Rian Bosak: Absolutely.

Liron Segev: Okay. Now speaking of clients of yours, do you only work with large corporates, with millions of subscribers for this to make sense, or is this a platform that perhaps is open to people with smaller channels?

Rian Bosak: Right now, today, we're mostly working with larger clients. Our average subscriber count of our client is about 3.5 million subscribers, so we're working with pretty big channels. And then we are working with some enterprise clients as well, like Group Nine and Nitro Circus.

We'd love to make it more democratic so we're working to see if there are options that have it make sense for both sides because obviously it is a business and we have bills to pay and people to pay. But it is really important I think for everyone to be able to manage their IP rights as soon as they start creating content because the reality is once you create content and put it somewhere very likely it's going to go everywhere. And that could happen in very short order.

And in some cases it's only a small percentage of what you get on your own and operated. But there's also a ton of use cases where we see that what I call user generated content or UGC views far exceed what we got on the owned and operated side of the business.

One client of mine, ScottDW, his most popular video (below) has about a hundred million views on his YouTube channel, but there has been so much third party uploads of his content that in total, just on YouTube, his content has closer to 1.3 billion views. And when we look at the internet in total, it's more like 2 billion, 2.5 billion views, and that's not really a fringe use case either. It may sound like it, but you see that quite a bit with popular content.

Liron Segev: Yeah, I mean, I can see it even with my own personal content. I mean I don't have a big channel, but I see it time and time again where people literally take the entire video and then they'll reupload it knowing that it's me in the video. They're not even pretending that it's them, but they are looking for that affiliate links at the bottom in that description or they're looking to monetize it. And I have to manually go one by one and make sure that I take down those videos. So if I'm a small channel doing this, I can absolutely imagine a huge channel, very popular, it's easy pickings.*

Rian Bosak: Well, more times than not, people come to us because they found one video or they found maybe five videos of people repurposing their content that do have a lot of views. But oftentimes when we add the reference files into Content ID, we end up with thousands of matches in a very short period of time, usually within days. So oftentimes, there's kind of an onion and you may have just gotten the first layer, but there's quite a bit more to the whole entire story.

Liron Segev: Wow, okay. So, in which case, is there a point in somebody's YouTube career where they have to say, "Okay, I'm going to stop uploading natively. I've got to phone SuperBam, get onto that system, and this is now a good time for us to engage."

Rian Bosak: Yeah. I mean the more you start seeing your content repurposed, it's time to give us a call. Look, I mean, if you're trying to make a business out of creating content, which is what most people listening to this podcast are very likely trying to do, it's not a good use of your time to be chasing down people that are trying to take advantage of you. The best use of your time is to be focused on creating new content. That's where we're really a partner for you.

If you're seeing that kind of thing, there's no reason to deal with it yourself. There are companies out there that want to help you manage that and can do it in a way that's beneficial on both sides.

Liron Segev: Yeah, it makes sense. I mean, it's almost like a type of insurance. Like, it's my work, I've put in the time, sweat and tears into this. I want to make sure that all revenue occurs back to me. It's a simple business case from our side as well.

Rian Bosak: Yeah, I mean, totally. And I think it's really important to note to creators too that you should respect these rights quite a bit, right? Oftentimes people will ask you if it's okay to use their video or your video in something they're creating and you may say, "Okay," and they don't pay you anything, but then they end up creating something that gets a tremendous amount more views somewhat.

But you've not been compensated at all because you told this person, "Okay, go ahead and use it." It's fair for you to be able to share in that revenue or at least get a license fee for somebody using their content if they're going to go make hundreds or thousands of dollars off of something that you created.

Liron Segev: Cool. But it's a fine line. And because, on the one hand you maybe want that exposure out there and exposure to their audience and maybe the price you pay isn't sharing in the upside of the revenue, but at least you're getting that exposure. But it's a decision that you're making being the content owner. You're allowed to make that decision to say yes or no. And if you say no and they use it anyway, well, now you have some ability to say, "Hey, here is proof. I told you not to use it." Now we're having a very, very different discussion.

Rian Bosak: Yeah, absolutely.

Liron Segev: And just other platforms since we would ask, we did mention it a little bit earlier. You mentioned Facebook, you've mentioned Twitter. Are you looking at things like TikTok?

Rian Bosak: Yeah, I mean we're looking at every platform that exists really, TikTok, DK, which is kind of a Russian Facebook, Okay?, We.com, Youku, GIPHY, Dailymotion. I mean, you name it, our goal is to be able to help you manage your rights on those platforms. As I said earlier, we're not quite there yet as far as getting all the infrastructure built out at SuperBam, but the goal over time is to be able to be a holistic rights management service provider.

Liron Segev: Yep. It's the service you need but don't know you need it yet.

Rian Bosak: Yeah, yeah, absolutely. I mean, I talk a lot to creators about creating your team these days because a lot of creators are starting to move out of just this being a hobby into it really being a business. And so many of us started this, started creating content where it was just us doing the content in our bedroom, in the kitchen and the living room, whatever, and being the beginning, middle, and end of the whole entire thing.

As your business becomes bigger, it's really important to keep in mind that there are things that you're going to need that you're not going to be able to do yourself. It's important to have a lawyer. It's important to have an accountant. It's important to have, if you're big enough, a manager or an agent who can actually represent you and knows how to negotiate deals in a way where you end up making more money. It's important to have a rights management provider. All of these things become really crucial as you're building out a sustainable business long-term.

Liron Segev: It is a business at the end of the day. A lot of people start off by maybe as a hobby and as it grows and they see a little bit of income coming in, at a point it will turn into a business. And just like every business, you go through a growth spurt and a growth phase, and then you start hiring. So I agree. Part of your hiring team or part of your hiring strategy should be someone looking after your wallet, your money, which is going to be your rights of the intellectual property that you created. So it is one of those things that, as I said, is service you didn't know you needed it, but you absolutely do.

Rian Bosak: Totally. Yeah. It's something that a lot of people don't think about until they realize that it's a problem.

Liron Segev: Until they realize they've lost X thousands of dollars because somebody else just ripped their video.

Rian Bosak: Yeah, exactly.

Liron Segev: Okay. So, Rian, people listening to this, and maybe they're an enterprise person who's got a lot of intellectual property, now they're hearing this and are going, "Oh, dear, I haven't done anything about this." Or maybe they know that their content is already out there and they're a pretty big channel and they're losing on dollars as we chat. How can they find you to get more information?

Rian Bosak: Yeah, totally. So you can find us at superbam.com and fill out our form. We'll get back to you quickly.

You can also follow us on Instagram, Facebook, and Twitter. You can also send us an email to wefightforyourrights@superbam.com.

Liron Segev: Oh, dig that email address. That's pretty cool. And again, everything will be in the show notes. Rian, thank you for unpacking this topic a little bit for us.

Rian Bosak: Totally. Well, thank you so much for having me on the podcast today.

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