Music, Copyright & Youtube: Fair Use, Public Domain & DMCA

The aim of this article is to help you better understand the copyright principles, such as fair use, public domain and creative commons licensing, that you need to be aware of when including music in your YouTube videos. At the end of the page, there are also a few links regarding where to find music that you can legally use as background music in your video.

Music copyright laws were not set up to accommodate today’s social media landscape, in which hundreds of thousands of amateur and semi-professional videos makers are creating works that can be viewed almost anywhere in the world. The relevant laws and music licensing processes tend to be complex, restrictive and ambiguous, best to be dealt with by a media company’s legal team, yet here we all are making videos, so until the laws change, we better learn more about our rights and responsibilities. This page is long (sorry), but only represents a summary of the main issues. A lot of people on the Internet seem to be basing their advice on what they would like copyright laws to be rather than on what the laws really are, so there is a lot of bad advice out there. My approach is to err on the side of caution.

If you have a specific question, you can check the list of questions below or send your question via the comments sections.

1. Music Copyright Basics
1.1 What parts of the song are copyrighted?
1.2 Which country’s copyright laws would I be following?
1.3 If I wanted to use copyrighted music legally, what kind of license would I need?
1.4. What is copyright free-music?

2. Public Domain
2.1 What is public domain?
2.2 How old is old enough?
2.3 Why is a music publisher saying they own the copyright to my recording of a work by Beethoven?
2.4 What is copyfraud?
2.5 Is their any danger if I use pre-recorded audio loops in my music?

3. Creative Commons
3.1 What is Creative Commons?
3.2 Am I safe if use Creative Commons licensed songs?

4. Fair Use
4.1 What is fair use?
4.2 What are the criteria for determining fair use?
4.3 What about parody?
4.4 What about mashups and anime music videos (AMVs)?
4.5 What about cover versions?
4.6 If I use a karaoke track of a cover song, add my own words and upload to YouTube, is that allowed?

5. YouTube Policies
5.1 What is YouTube’s policy concerning copyrighted music?
5.2. What can you do if you receive a copyright claim against your video?
5.3 My video has been deleted: DMCA and the counter-notification process
5.4 So, if I post something and don’t get a notice then I am safe, right?
5.5 I got a notice about my video saying that someone is claiming copyright, but that I don’t have to do anything. I’m safe, right?
5.6 I got a YouTube copyright strike! Will it ever go away?
5.7 Can I cheat YouTube’s content match system?
5.8 Is it OK if I use copyright-protected music without permission as long as I post a statement saying I do not own the music and I properly credit the artist?

6. Licensing
6. Can I license music from a pop star?

7. Free Music Resources
7. Where can I get music to use as background music?

1.1 What parts of the song are copyrighted?

The composition (including the music and any lyrics) and recording are protected by copyright. The purpose of copyright is to try to ensure people responsible for making the music can earn a living from their work. It is important to note that the composition and recording are covered by separate copyrights, so even if you were to change the words to the song and record all the instruments yourself, the music (melody, harmony and basic arrangement) is still protected by copyright.

Things that might break copyright laws would include:

  • Playing a song from your favorite band as background music in your video
  • Uploading your own cover version of that song
  • Uploading an instrumental version of the song
  • Posting the entire lyrics on your website
  • Uploading a video that contains a song playing in the background on a radio

Of course, this kind of stuff can be seen all over YouTube. That, however, does not mean that those videos are not in breach of copyright law. You may do the exact same thing as a hundred other videos on YouTube and find that your video has been banned and your account is in danger of termination. With YouTube’s current system, any time you upload anything that is copyrighted, there is a risk that you will earn a copyright strike. If you accumulate three strikes, your account is terminated.

The last item on the above list of copyright infringing practices—uploading a video that contains a song playing in the background on a radio—catches many people by surprise. The audio is often of low quality, so it is not like anyone would download it, and in many such cases, the music was recorded by accident. There is no way your use of the music would affect the earning of the artist; however, this does not give you the right have the song playing in your video. One of the purposes of copyright (besides trying to protect artists financially) is to give artists control over how their work is used, and not every artist wants his/her music playing in an advertisement, in a movie or in your home video of a baby dancing.

1.2 Which country’s copyright laws would I be following?

Good question. As far as I know, the answer to this has not yet been determined. Is it the country in which you live, the country in which the work was first published, all the countries your video is being seen in, the country where YouTube’s head office is located or even the countries in which the YouTube servers reside? There does not appear to be a definitive answer at the moment (More information: Copyright: Choice of Law and Jurisdiction in the Digital Age).

In many ways, current copyright laws are unsuitable for how people are using the Internet. If you are uploading to YouTube, allowing your videos to be accessed around the world, it would be a good idea to make sure your work is at least in line with American copyright laws, which are already quite strict. If you want to be especially safe, can also try to make sure that your work is in line with the laws in other jurisdictions (e.g., the European Union).

1.3 If I wanted to use copyrighted music legally, what kind of license would I need?

The different kinds of music licenses and royalties are introduced here: www.publicdomainsherpa.com/public-domain-sheet-music.html). Basically, there are three kinds:

  • Mechanical license (giving you the right to publish, distribute and/or sell your own audio recording of a copyrighted song—an audio-only cover version)
  • Synchronization license (giving you the right to set your cover version to video and publish the video). That is, you have the right to use in your video the musical composition, but not the recording.
  • Master Use license AND Synchronization license (giving you the right to use an existing copyrighted recording—Master Use—of a copyrighted song—Synchronization—in your video). If the same person(s) holds the copyright to both the composition and recording, these licenses can be combined into a single ‘Synchronization and Master Use’ license. If you want to use a recording of a song that is no longer protected by copyright (e.g., a Mozart piano sonata), you would just need the Master Use license.

To legally sell your cover version of a song on iTunes or post your audio-only cover on Bandcamp, you would need the first. To legally upload a video of your cover version, you would need the second (though almost no one will actually obtain this). To legally upload a video that contains an existing audio recording by your favorite artist, you would need the third. These licenses are discussed in more detail towards the end of this page. Getting a Mechanical license is straightforward, but Synchronization licenses and Master Use licenses are not always easy to obtain (if there are a few different songwriters, you would need to negotiate a fee with each one!) and Master Use licenses are typically very expensive.

Of course, if an up-and-coming performer or composer is looking for free publicity, it never hurts to ask him/her to just give you written permission to use the song.

1.4 What is copyright-free music?

I think people who use this term really mean “music that is in the public domain”.

2.1 What is public domain?

Once a work is old enough, it enters the public domain and can be freely distributed, performed and recorded without you having to obtain a license or pay royalties.

Some people have the misconception that if something is posted on YouTube, it becomes a public domain work. This is a completely wrong idea.

Composers and musicians may release their work into the public domain at any time, meaning they give up all control over the work. This, however, is extremely rare.

Also, people tend to forget that the composition as well as performance enjoys copyright protection; therefore, while a Beethoven composition will be in the public domain, a recorded performance of this work would most likely NOT be in the public domain.

2.2 How old is old enough?

The laws that govern exactly how old a musical work must be before it enters the public domain differ from country to country and also tend to become more restrictive over time. As new laws are passed, copyright terms tend to be longer and longer as evidenced in this video that is amusing and disturbing in equal measure: Copyright: One Day Less than Forever.

A work may be in the public domain in one country while still being under copyright protection in another country. For example, musical works published in America before 1923 are in the public domain. For works published between 1923 and 1977, they enter the public domain 95 years after their initial publication. And for works published from 1978 on, they are protected for 70 years after the death of the composer (if there is more than one composer, you start counting after the death of the last one). To make matters worse, a legal technicality means that most recordings of music in the US will not enter the public domain until 2067! (www.publicdomainsherpa.com/public-domain-sound-recordings.html). The exact details for when a work enters the public domain in the USA are here: copyright.cornell.edu/resources/publicdomain.cfm

In other jurisdictions, the copyright term may be different. For example, in Canada and Hong Kong, works enter the public domain 50 years after the death of the composer; while in European Union countries and Russia, the figure is 70 years. It is possible that your video might include music that is in the public domain in Canada, but not in European Union counties, so YouTube would be within it’s rights to block your video in those countries.

At the moment, I am recording one of Sergei Rachmaninoff’s preludes (Op. 23 No. 6) and posting it to YouTube. The piece was published in 1903, so it is in the public domain in America. Rachmaninoff died on 28 March 1943, so that makes it in the public domain in Canada, but not in the EU (Note: At the time the article was first posted, it was not, but now it is).

2.3 Why is a music publisher saying they own the copyright to my recording of a work by Beethoven?

To complicate matters, most classical musicians play from sheet music, which is itself copyrighted by publishing companies. Though a composition may be in the public domain, a new arrangement of the composition (e.g., a saxophone quartet version of Pachebel’s Canon) would be considered a derivative work and would be protected by copyright law. It is not clear how substantial the changes must be in order for the new version to be considered a derivative work. Would adding more detailed articulation and dynamics make it a new work? Probably not, though sheet music publishers may disagree (this issue is explained in more detail in the second part of the Public Domain Sherpa link:  www.publicdomainsherpa.com/public-domain-music.html). If you are in a school symphonic band or orchestra, it is very likely that whatever you are playing has been heavily adapted and therefore is NOT in the public domain.

This is why when you post your own performance of a classical piece or an old folk song, you will sometimes get Content ID matches or copyright claims even though your work is definitely in the public domain. In most cases, the claim will come from a legitimate publishing rights collection agency that is making the claim on behalf of a music publisher. They are basically claiming that they own the performance rights and reproduction rights to their ‘new’ version of the work. It is up to you whether you want to challenge their interpretation of copyright law.

In some cases, however, when you get a copyright claim notice for a public domain work, you might be the victim of something known as copyfraud.

2.4 What is copyfraud?

Copyfraud is a kind of abuse of copyright. In some cases, copyright claims on public domain music are completely spurious—simply the work of con artists trying to monetize as many videos as possible. A company which is now causing a lot of grief on YouTube is GoDigital MG (Media Group), which seems to be combining two roles: legitimately collecting advertising revenue for copyrighted works while also making fraudulent claims on public domain works and songs that include licensed loops from software like GarageBand. This problem is discussed in detail here: YouTube Copyfraud & Abuse of the Content ID System

Why does YouTube allow this practice? Well, if advertisements are put beside and over your video, part of the money collected will go to the copyright holder and part will go to YouTube. YouTube benefits financially from false (and therefore illegal) copyright claims, so there is not much incentive for them to stop.

2.5 In my songs or videos, I sometimes use audio samples from purchased collections or that come with video editing or music recording software. Is there any danger if I post these songs/videos to YouTube?

Yes. There are a lot of people making music almost entirely from pre-recorded audio loops or who use some loops in their songs (not everyone has a drummer on hand!). These loops can come with software like GarageBand, Cakewalk, Final Cut or iMovie or they can be purchased in collections (e.g., SoundPool Sony, Cyclicks).

The most common problem occurs when someone else uses the same loop in his/her song and then has that song entered into YouTube’s Content ID Match system. The other person can basically end up claiming copyright over all songs containing that loop, including yours. Of course you can dispute this claim, but if the other person insists his/her work is entirely original, your dispute may fail. At the moment, I am disputing such a claim by Believe a music publishing organization that is becoming notorious for their false Content ID matches (view the YouTube Forum Discussion). As so many problems with copyfraud and false Content ID Matches can be traced to a handful of companies (e.g., GoDigital MG, Believe), it would be easy for YouTube to crack down on common frequent abusers, yet it is rare that action is ever taken.

If you are planning on monetizing your videos or selling your music, you better carefully read the terms of use of the loop packages. For example, the loops that come pre-packaged with Magix Music Maker (Soundpool Collection 17 or above) are not intended for commercial use and you would need to buy an additional commercial licence for such use. In contrast, loops from earlier collections from the same company (e.g., Soundpool Collection 16) are royalty-free and can be used commercially in original compositions.

If you are a composer/musician that uses loops extensively, it would be irresponsible to have collection agencies like CD Baby or Believe administer the copyright for your work and enter it into YouTube’s Content ID Match system. Just don’t do it.

Similarly, some video makers make use of the background music sample provided in video editing software programs. These songs may also get incorrectly entered into the Content ID system.

3.1.What is Creative Commons

Some musicians are now releasing work under Creative Commons (CC) Licenses (creativecommons.org). This is a new scheme meant to allow artists to share their work more freely, while not giving up complete control. There is no formal registration process, so musicians and composers can just write in a video description that they are using a Creative Commons licence. There are six main kinds of licences:

  • Attribution (CC BY) (The user needs to credit the creator)
  • Attribution Share Alike (CC BY-SA) (The user needs to credit the creator and the the new work, whatever it is, should have the same Creative Commons license.
  • Attribution No Derivatives (CC BY-ND) (The user needs to credit the creator; the user may use, but may not adapt or remix the original work).
  • Attribution Non-Commercial (CC BY-NC)(The user needs to credit the creator; the work may only be used for free for non-commercial purposes; however, the creator, is free to make other arrangements for people who want to use the work commercially)
  • Attribution Non-Commercial Share Alike (CC BY-NC-SA)
  • Attribution Non-Commercial No Derivatives (CC BY-NC-ND)

There are some things you need to watch out for. If the license includes a non-commercial (NC) restriction, you would not be able to monetize your video unless the copyright owner gives you permission. Once you start monetizing videos, you can no longer claim that they are non-commercial.

If the license includes a no-derivatives (ND) restriction, then you do NOT have the right to use the music in a video as you are creating a new work—’an adaptation’ according to the wording of the CC license (mollykleinman.com/2008/10/20/cc-howto-no-derivatives). If you want to use a piece of music that is licensed with the ND attribute, simply ask for permission and you will likely get a favorable reply (I don’t think many people know about how the ND restriction works and probably never intended to prevent you from using their music in a video).

3.2 So I am safe if I use music published under a Creative Commons license, right?

Um…no.

What if a musician with poor knowledge of copyright does something like upload an instrumental version of a copyrighted song and then upload this recorded version under a Creative Commons license. The music composition is copyrighted, so you could still find yourself in trouble with the music publisher if you use the recording.

Creative Commons licenses are irrevocable, but people often remove them anyways. Media companies like YouTube, Flickr, Vimeo and Soundcloud all allow uploaders to ‘cancel’ their Creative Commons licenses. What happens if the composer of the Creative Commons licensed song you are using in your video suddenly removes the license information and asks you to pay for its use? You would legally be in the right to refuse (Hey, the licence is irrevocable!), but do you have proof the song was published under a CC license? If you ever use CC licensed work, I would recommend that you record the download date and the URL and get a screen capture of the licence information.

Here is a tough luck case in which a YouTuber used YouTube’s own video editor, which allows you to mix videos that have been published with a CC license to create new videos. Two of his videos were later deleted and he received two copyright strikes because someone else published something under a CC licence and either didn’t have the necessary rights to do that and/or ‘cancelled’ the licence: productforums.google.com/forum/#!msg/youtube/HEMd4WQcTlk/Z4xEqVXDHvgJ

4.1 What is fair use?

To allow copyrighted works to be used for educational purposes or to be parodied, commented upon or criticized, copyright laws usually include a fair use provision—the right to use a portion of a copyrighted work without requiring permission or having to pay licensing fees. Again, the details differ from country to country (for example, in many countries, parody does not fall within fair use provisions). Fair use is known as fair dealing in some jurisdictions.

Before going through the criteria that are used to determine what is considered fair use, it is important to note four things:

First, exactly what constitutes fair use is subjective and depends on four criteria (these are described below). You can say your use of copyrighted work constitutes fair use; however, the copyright owner might disagree. In such a case, who would decide? It would basically require a court case. The courts would decide whether your use falls under fair use provisions. Thus, fair use can be considered as a legal defense against claims of copyright infringement. YouTube, of course, is not a court. Therefore, it has no right to determine whether something constitutes fair use.

Second, YouTube gives copyright owners the benefit of the doubt in almost all cases. In an article entitled Content ID and and Fair Use in the Google Public Policy Blog, Shenaz Zack (Product Manager) states that “rights holders are the only ones in a position to know what is and is not an authorized use of their content, and we require them to enforce their policies in a manner that complies with the law” (googlepublicpolicy.blogspot.hk/2010/04/content-id-and-fair-use.html). I would argue that YouTube’s interpretation is wrong here; not all copyright owners are infallible and impartial arbiters when it comes to something like fair use. Many copyright owners routinely reject fair use claims (perhaps because so many people make bogus claims). If you are looking for information about what to do if your claim is rejected, you can go to Section 5.3 to find out about submitting appeals and counter-notifications.

Third, the criteria that are used to determine fair use are purposefully left ambiguous. For example, if you are doing a commentary of a famous rock album. How much of any one song can you use before you are using too-much-to-be-fair-use? Is 10% OK? What about 25%? There are no exact guidelines because copyright laws are left ambiguous to allow decisions to be adapted to a wide variety of circumstances and to new forms of media and technology.

Fourth, there is no way to apply for anything like a ‘fair use license’ before using a copyrighted work. Such a thing does not exist. Of course, you can still ask for permission to use a work, but there is no formal mechanism for applying for fair use exemptions or permissions.

These four points mean that fair use is something of a gamble; you can really only prove it in court.

4.2 What are the criteria for determining fair use?

There is no exact formula for determining fair use, but in a court case, four aspects would be considered:

4.2.1 The nature of the original work
If the original work is factual in nature (rather than a creative work), then using it would more likely fall under the category of fair use. Unfortunately, music is basically creative in nature (an exception might be a performance by a musician demonstrating various music styles).

4.2.2 The amount of the original work used
There is no exact figure, but in the education field, using 10% of an original work would probably be considered the limit. However, if you re-publish something that is considered a very crucial element to the work, such as a YouTube video clip showing the entire incinerator scene in Toy Story 3, that might be considered too much. One exception where using a longer excerpt might be considered fair use would be in a music tutorial video—you can argue that it is necessary to play the whole song, or at least most of the song, in order to teach people how to play it.

4.2.3 The size of the potential audience and the ability of the new work to affect the potential market value of an existing work
Showing something in class to 30 people is not the same as posting it on YouTube, with a potential audience of millions. This criterion is related to the potential of your use of the work to affect the market value, and potential future market value, for the work. Of course, the smaller the actual and potential audience, the better your chance of your use of the work being considered fair use. Putting something on YouTube, however, makes it very difficult to meet this criteria unless you have really transformed the nature of the music (see the next point) or have used a very small proportion of the music (see the previous point). You need to be aware that anything you can upload can be downloaded using online video-downloading sites, so if you put a whole song online, you are basically offering it free for the entire world. And yes, there are people who build up their mp3 collections by downloading the soundtracks of YouTube videos.

4.2.4. The purpose of the use and the extent to which you have transformed the purpose of the original work
If the purpose is for non-commercial use, especially for education, criticism and commentary, or for strictly personal use, this would increase the chances of the use of the work being considered fair use. Also important, however, is the extent to which your new work transforms the purpose of the original work. One example of a commercial use that could be considered fair use would be a commercial movie review webcast using short clips of movies to demonstrate the points made by the film reviewers. The purpose of the original movie may be entertainment, but your use of the clips can be considered as a form of criticism or commentary.

With regard to music, if you just do a cover of a song, there is no transformation of the melody, harmony and lyrics, and there is no transformation of the purpose, so a straightforward cover version would not be considered fair use. However, if you do song tutorials in which you teach people how to play the song on the guitar, you have transformed the purpose of the song (it is now serving an educational purpose), so you would be in a much stronger position to claim fair use.

Even if the purpose of your new work is educational, however, you would also need to look at if your use of the original work is necessary for that purpose. If you are teaching people how to play a song, obviously the use of that song is necessary. In contrast, if you are creating an educational video about physics and want to liven it up with a pop song in the background, the use of music would not be considered relevant to the educational purpose of the video and its use would not be considered fair use.

To sum up, almost all uses of copyrighted music that you normally see in YouTube videos uploaded by non-copyright holders would not meet most of the four criteria and would not fall under the category of fair use.

Here is a video with legal experts discussing the possibility of applying fair use arguments to a number of different situations involving YouTube videos. Their favorite words seem to be: “that depends”, “that’s tricky”, “that’s hard to say” and, of course, “that’s ambiguous”. In reality, the answer for a lot of questions concerning ‘Can I use legally use music in this way?’, is simply ‘No’, but I got impression the experts were trying to be as open-minded (and non-discouraging) as possible. It’s a long video, but worth watching if you are interested in things like cover versions, video-game commentaries and parody as the speakers discuss the legal issues surrounding these cases.

4.3 What about parody?

This is a controversial topic. Parody involves the deliberate imitation of a work, usually in order to make fun of it or comment on it in some way. It is considered a form of derivative work—meaning something based on an existing work. In some jurisdictions, parody can be considered a form of fair use if certain conditions are met and is thus protected from copyright claims from the owner of the original work. In the United States and Britain, for example, a parody can be considered to be fall under fair use if the new work can be interpreted as a comment or criticism of the existing work. In Canada, however, there is no such protection.

Parody becomes an even more troublesome concept when music is concerned. Most music parodies make fun of the performance style of the performer and the lyrics of the song; however, the actual music (the melody and harmony) remains unchanged. Thus, although the performance and lyrics are imitations, the music—which is also protected by copyright—is not. One key factor would be the extent to which the purpose of the original performance has been changed (e.g., from Lady Gaga entertaining you with her music to you criticizing Lady Gaga’s music, lyrics and performance style through your parody of her song).

The most famous music parodist, Weird Al Yankovic, does get permission from the performers and copyright holders before recording his parodies of their songs.

4.4 What about mashups and Anime Music Videos (AMVs)?

Regarding AMVs, no, sorry, these are not protected from copyright claims (though you may find opinions to the contrary). In an interesting article on copyright law, AMVs and the new culture of re-mix creation, Stanford Law professor Lawrence Lessig calls for a new way of considering intellectual property, but admits that the existing laws do not really allow for uses such as AMVs:

“Yet the law of intellectual property will not easily accommodate this remix creativity. As the rules are written today, even for purely noncommercial purposes, there is no clear right on the side of the remixers….the law today speaks firmly: there is no freedom for this sort of creativity. There is no way to even license the right.” www.ft.com/intl/cms/s/2/d55dfe52-77d2-11da-9670-0000779e2340.html)

The main problems are that:

  • The original work is creative in nature (failing to meet the first criteria).
  • Large amounts if not all of the original song is used (failing to meet the second criteria).
  • People can now download the song using YouTube downloading software instead of buying the music. Because people do download mp3 audio-only files from videos posted on YouTube, you are making the music available to a huge potential market (failing to meet the third criteria).
  • And finally, while possibly adding a layer of meaning to the song through visual imagery and probably using the music on a non-commercial basis, you are not transforming the purpose. It is still mainly entertainment (thus, only partially meeting the fourth criteria).

As anime music videos really do not meet any of the four criteria, it would be wishful thinking to claim fair use when uploading them.

For mashups, there is some legal ambiguity. Depending on how much of an original work is used and how much a piece is transformed, one could argue that a mash-up might be protected under the fair-use doctrine. Could DJ Earworm’s annual mashups, which definitely transform the original music to a large extent, also be considered as a form of commentary on or criticism of the year in American music?

Maybe.

4.5 What about cover versions?

As mentioned before, the music (combination of melody and harmony) and lyrics are protected by copyright, so even if you are changing the arrangement, the song is basically still the same. If you upload cover versions, you are technically breaking copyright law. However, even if your cover version is detected via YouTube’s Content-ID match system, in almost all cases, music publishers, composer collection agencies and artists are content with earning money through advertising and will not pull things like cover versions of songs (Update: There is now a new feature in which copyright owners can elect to share advertising revenue with cover artists who are YouTube partners).

The key word in the above paragraph is ‘almost’. If that is your thing—doing cover versions—and you are posting a few hundred of them, there is a good chance you will come across an ornery individual or company. Here is David Choi’s experience:

Here is a musician, Ely Jaffe, with a lot of common sense advice about doing cover versions for uploading to YouTube. he rightly recommends using your own performance for the background music rather than relying on things like karaoke tracks.

One interesting thing mentioned in the video is that although there are copyright issues with uploading cover versions to YouTube, you are able to sell cover versions on iTunes legally and quite easily. This is because to make and sell audio recordings of cover songs, you only need to get a mechanical licence, which is quite easy. Though you would need to pay royalties to the songwriters, this is handled by a performance rights organisation.

If you want upload a video completely legally, however, you also need to get permission from the copyright holders and negotiate a synchronization license (if you also wanted to sell MP3s of your version, you would need a mechanical licence as well), which can cost a lot of money and is not always easy to obtain. Have you ever wondered why you rarely hear the song Happy Birthday in a movie? Mainly, it’s because it’s expensive to obtain the rights to use it. For lesser known songs, however, it might even be possible to get such a license for free, as shown in this video:

4.6 If I use a karaoke track of a cover song, add my own words and upload to YouTube, is that allowed?

You would be infringing copyright in two areas: (1) the actual recording of the karaoke track would almost certainly be protected by copyright and (2) the music part of the composition is still protected by copyright.

5.1 What is YouTube’s policy concerning copyrighted music?

YouTube is caught in a difficult situation. Much of the content and traffic on the website (and therefore much of the revenue) comes from the illegal use of copyrighted music and visual elements. To solve this problem, YouTube gives copyright holders the power to take down videos containing their work, monetize them or simply do nothing. To do this, YouTube makes use of an amazingly powerful music content matching system that can identify copyrighted music within seconds.

One problem with YouTube’s approach is that it creates a lot of misunderstandings. Some users are punished by having their accounts terminated (becoming something like sacrificial lambs slaughtered to appease powerful media companies), while other users with exactly the same copyright issues have their videos promoted as suggested videos. The following video, featuring a representative of the company, does a great job of explaining  how their copyright policy works, though you might not like to hear what she says.

Another criticism is that YouTube doesn’t seem to be checking very carefully to see if the people and organisations claiming copyright under the content ID match system actually own the copyright to the content they are claiming (leading to the copyfraud problem).

Apparently, YouTube has privately reached an agreement with some media companies. Basically, the media companies allow their copyrighted work to be uploaded and then they monetize the videos; however, it has never been made public exactly which companies are involved. If you are using copyrighted music in your work, the least you can do is talk to people doing similar things (e.g., making AMVs) and find out which companies are aggressive in protecting their work and avoid using anything from these companies.

5.2. What can you do if you receive a copyright claim against your video?

There are two kinds of procedures. One is for disputing challenging ID matches while the other is for challenging the decision to take down videos. This second type—a DMCA counter-notification is covered in the next section.

When you receive a content ID match or copyright infringement notice, you will also be asked if you want to appeal the claim. If you are confident that the work is in the public domain worldwide or that your work is really fair use, you can take this option. The challenge would be passed on to the person or entity claiming copyright, who would then have 30 days to review your case and decide whether to uphold their claim or release it (or take a third option, which is to order your video to be taken down). If they uphold their claim, you can continue the process by disputing the appeal. The company then has 30 days to respond, either by dropping the claim or by taking legal action in the form of a takedown notice. In the latter case, your video is deleted and a copyright strike is issued to your account (support.google.com/youtube/answer/2770411?p=dispute_appeal&rd=1).

Quite often, however, publishing rights collection agencies will only want to earn money from your videos (by putting ads next to them) or block them in certain countries. In such cases, you may not feel that it is worth the trouble to contest the claim, though you should be aware that the copyright holders can change their policy—block, take down or monetize—at any time.

DMCA takedown notices are more troublesome, and if you get three of these, your YouTube account is terminated. If you want to challenge a takedown notice, you have to file a counter-DMCA notification (www.youtube.com/t/copyright_counter). You can view this video showing the counter-notification process in detail:’

5.3 My video’has been deleted: DMCA and the counter-notification process

OK, so your video had been deleted for copyright infringement. What do you do? You need to issue a DMCA counter-notification (www.youtube.com/yt/copyright/counter-notification.html). If you have had repeated copyright infringements, however, you may not be allowed to issue a counter-notification.

Under the terms of the Digital Millenium Copyright Act (DMCA), content hosting sites like YouTube are protected from liability against copyright claims as long as they abide by certain guidelines. Thus, the DMCA serves as a kind of Safe Harbor (www.chillingeffects.org/dmca512/). One thing YouTube must do to protect itself form liability is to remove content upon the request of a copyright holder (thus, the dreaded DMCA takedown notice). However, YouTube is also required to give content creators the opportunity to challenge such removals.

To have your video reinstated, you would need to complete the online counter-notification form (if your account has been deleted, you might need to send in a hard copy). Your personal details and contact information (including your address as well as other personal information) as well as your explanation as to why you you believe there is no copyright infringement would then be forwarded to the party claiming ownership of the content you have alledgely used inappropriately. That party would then have ten business days in which to notify YouTube that it is taking legal action against you. You therefore need to take the counter-notification process seriously. You are basically saying, “Oh yeah, so sue me then.” Ideally, you should get proper legal advice before submitting a counter-notification. Also, do be on the lookout for fraudsters. Because your personal information is forwarded to the supposed copyright holder, a new kind of fraud has come to light. Apparently, false copyright claims are being made for the sole purpose of harvesting the personal information, which can then be sold on.

What should happen after submitting the counter-notification is that either a) you get sued (congratulations!) or b) the copyright claim is dropped and your video goes back online (congratulations!). This is how the process is supposed to work.

However, sometimes, something strange happens. Instead, you can get c) you don’t get sued, but the claim against your video is upheld by YouTube and your video remains deleted. What? Can YouTube legally do this? It seems they can. In a comment on his own blog post YouTube Refuses to Honor DMCA Counter-Notices, Patrick McKay explains:

Sadly there is no actual affirmative requirement in the DMCA to follow either the takedown procedure or the counter-notice procedure. The DMCA is a safe harbor, which means if you follow it you are safe from civil liability on other grounds. If you take down a video, you are safe from liability for copyright infringement, which entails statutory damages of up to $150,000. If you follow the counter-notice procedure, the only liability you are safe from is breach of contract, since baring some contractual relationship, a private website like YouTube has no legal obligation to host your content. YouTube’s terms of service, which are the only government contract here, expressly insulate them from an liability for refusing to host a video, even if it is not infringing. They only say they “may” restore the video, not that they will.

YouTube could be doing a lot more to shut down false copyright claims, preserve the privacy of its users and protect the concept of fair use. If YouTube uploaders get three copyright strikes, their accounts are terminated, why can’t a similar principle being applied to people making spurious claims?

5.4 So, if I post something and don’t get a notice then I am safe, right?

Um…no. As YouTube refines its content matching system to make it even more powerful, your video might get taken down later. It is a common experience.

5.5 I got a notice about my video saying that someone is claiming copyright, but that I don’t have to do anything. I’m safe, right?

Sorry, that’s another no. The copyright holders can change their minds at any time and issue a DMCA takedown notice on a video they had previously approved for monetization. Personally, I prefer not having any of my videos having copyright claims on them because it means someone a third party has power over whether my videos will continue to be seen or be deleted.

5.6 I got a YouTube copyright strike! Will it ever go away?

These used to be permanent. Now, after six months have passed without any copyright issues popping up on your channel, you may find that the strike has disappeared. No notification will be given.

5.7 Can I cheat YouTube’s content match system?

It is definitely possible, but this usually involves changing the speed and/or pitch of the song and generally messing up the song in the process.

5.8 Is it OK if I use copyright-protected music without permission as long as I post a statement saying I do not own the music and I properly credit the artist?

No. You can do this as a form of courtesy to the original artist, but unless you are using public domain music or your use is really consistent with fair use, your use of music would still be in breach of copyright law. On the one hand, at least you are giving credit. On the other hand, with such a statement, you are openly admitting to breaking copyright law as well as YouTube’s own terms of service. In any case, using will not be useful in persuading a copyright holder not to have your video removed.

6. Can I license music from a pop star?

It is extremely difficult unless you are dealing with an unsigned (i.e., they don’t have a contract with a record company) songwriter/musician. In this case, you can send an e-mail requesting use of the song. Maybe they would appreciate some exposure.

If it is a song by a well known performer, however, things become incredibly difficult. You would need to get permission from the music composer(s,) the lyricist(s), the publisher, the performer(s) and/or the record company (whoever owns the copyright for the music, lyrics and performance). If any of the people are dead, you would need to seek out their family members. You would need to get a Synchronization License (giving you the right to include the song in a video) from the owners of the musical composition (music and lyrics) and a Master Use license (giving you the right to use a specific artist’s version of the song in the video) from the owner of the copyrighted recording of the song. These licenses are typically very expensive. Small indie filmmakers can expect to spend several thousand dollars (US) to get the licenses for a single song for a limited release. For studio produced movies, the fees are often in the hundreds of thousands of dollars. The whole process take a long time and there is little chance of getting a positive response from everyone involved (the whole process is outlined here: http://www.clearance.com/get_yourself.htm).

There are copyright clearance agencies that can be hired to perform this task (for a fee).

7. Where can I get music to use as background music?

Luckily there are composers and musicians who are willing to give you free songs to play with. These are issued under Creative Commons licenses (http://creativecommons.org/) or under the musician’s own terms (e.g., ‘not for commercial use’).

Archive Org: http://archive.org/index.php
Video, music and text in the public domain or issued under Creative Commons Licences.

Freesound: http://www.freesound.org/
Music recordings issued with Creative Commons Licences

Soundcloud: http://soundcloud.com/
An audio uploader that features many Creative Commons licensed music tracks. Try searching for a style of music (e.g. dub step) and then select one of the Creative Commons attribution qualities on the right. Not all music uploaded here is under Creative Commons.

Longzijun: http://longzijun.wordpress.com/2011/04/13/free-background-music-and-scores-from-a-variety-of-composers-in-a-variety-of-styles/
This is my page of links to composers and musicians who provide free music. You can also simply click the ‘music’ tab this website to see my own work

CMixter: http://ccmixter.org/
A site of Creative Commons licensed music tracks

Related Articles

The Illegal Downloading Debate: Is it OK to Download Songs without Paying?
Creative Commons Licenses: Advantages and Drawbacks

 


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15 thoughts on “Music, Copyright & Youtube: Fair Use, Public Domain & DMCA

  1. I want to make a video for youtube and use audio from Tupac in the 1980′s, its not music just audio of him talking. Where do I stand on copyright ? can I claim the copyright when the video is finished and monetise the video ?

  2. Hi Lee,

    The issue isn’t very clear.

    The original audio recording would be protected by copyright. You could make an argument that your use constitutes fair use (e.g., maybe you are making a video that educates people on the history of rap and the Tupac clip is just one example), but publishing it on YouTube and monetizing it would weaken those claims. Strictly speaking, you would be breaking copyright.

    Of course, what about all those songs that use sampled vocals from movies, new broadcasts, ethnic music recordings or old documentaries? A common practice seems to be sample it, release it and then worry about copyright later (and only if challenged).

    Almost all of rap music is based on this approach. The justification used is that the artist is creating something entirely new.

    To sum up, you can ‘claim’ copyright, but the person who recorded the original recording could challenge that claim and sue.

  3. Pingback: Creative Commons Licenses: Advantages and Drawbacks | Longzijun

  4. An outstanding share! I have just forwarded this onto a coworker who has been doing a little homework on
    this. And he actually ordered me lunch due to the fact that I found it for him…

    lol. So let me reword this…. Thank YOU for the meal!!
    But yeah, thanks for spending the time to discuss this issue here on your site.

  5. Please pardon this potentially dumb question: say I purchased music that is copyright-free everywhere but the EU. Does that mean YouTube won’t allow a video using that music to play on domains from the EU, or does it mean that YouTube will take down the video entirely? Thanks!

  6. Hi, what a strange restriction (what do the terms of use say exactly?).

    In copyright cases, YouTube doesn’t decide anything. If there is a Content ID match, they either pass the information onto the copyright owners for them to decide or (more commonly) just follow the instructions already given to them by the copyright owners.

    Therefore, one can never predict what will happen. It’s unlikely that your video would be taken down. And if it is, you should be able to successfully appeal it (so hang on to any evidence like the receipt and the terms of use). I don’t think the video would get taken down, but if you’ve been with YouTube for a while, you should know that there are no guarantees.

    There is a chance that the video will be blocked in certain countries, especially if the music is in YouTube’s Content ID match system.

    There is a good chance that nothing at all will happen.

    I don’t know if the copyright holder would be able to monetize your video (they would have the right to do this for views coming from EU, but I doubt YouTube gives copyright owners this option), and I don’t know if having content that is ‘mostly’ copyright-free would affect your own monetization abilities.
    .

  7. Hi, I am an online music teacher who would like to post on YouTube music tutorials demonstrating how to play pop songs. Is this considered fair use? Thanks for your great article!

  8. Hi Justin, That is a grey area. And there are different shades of grey.

    Light grey (stronger claim to fair use)
    The videos are not monetized, you don’t play the song all the way through and you give lots of explanations regarding things like fingering, phrasing and strumming techniques. The argument against fair use here would be that by teaching the song like this to a worldwide audience, you are depriving the composer of earnings from sheet music sales. However, I don’t think this is a strong counter-argument.

    Dark grey (weaker claim to fair use)
    The videos are monetized and you mainly just play the song all the way through while the camera focuses on the fingers on the keyboard. This would be more like a cover version (and cover versions do not not fall under fair use).
    ————————
    It’s a good idea for a channel, but you will get Content ID matches and you will have to choose whether or not to dispute them. Your case for fair use will not be ironclad, and even if you are in the light grey area, many copyright owners will automatically reject your initial appeal.

    To conclude, I think it’s worth starting such a channel, but you will have to be prepared for some frustrations and annoyances.

  9. That would be a nice courtesy to the composer, but does not really do a lot to strengthen fair use claims (there’s no criteria related to promotion). The best thing would be to beef up the teaching aspect.

  10. I like the helpful info you supply in your articles.

    I will bookmark your blog and take a look at again right
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  11. What’s the rule on posting existing YouTube videos on a blog, if the purpose is solely to demo the artist’s work and each posting prominently features an Amazon affiliate Buy link, please? I’d love to do each posting like a music show, with an hour’s worth of tracks per week and each track accompanied by strong encouragement to buy the song or album. I won’t be uploading any videos myself, and I don’t mind at all if they’re monetized by the company. Does this sound as if it would be legal and acceptable? Thank you :-)

  12. It seems to be ‘unacceptable,’
    The problem is with the use of affiliate links on the website, which would go against YouTube’s Terms of Service section 4D:

    “You agree not to use the Service for any of the following commercial uses unless you obtain YouTube’s prior written approval:..the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales.” (https://www.youtube.com/static?template=terms)

    If you are looking for a way around this restriction, one idea would be to focus on that last part. If you did a review of each song or album, that might be enough to meet the condition of ‘other material of sufficient value’.

    Or you can just drop the ‘affiliate’ part. Of course, that means you won’t make money, but you didn’t say that making money was one of your purposes. If you just want to promote the artist, you can.just use a normal link.

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