Have you ever come across a video on YouTube that’s using someone else’s copyrighted content? If so, you might have noticed a copyright disclaimer in the description.
This type of disclaimer is commonly known as a “fair use” disclaimer, and it’s included to help protect against copyright infringement claims. Section 107 of the Copyright Act sets out four factors to be considered when determining whether or not a use of copyrighted material is fair:
(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for, or value of, the copyrighted work.
Including a copyright disclaimer does not change the fair use analysis. Fair use is decided on a case-by-case basis, so even if you include a copyright disclaimer, there’s no guarantee that your use of someone else’s copyrighted material will be considered fair.
What Happens in The Event of a Lawsuit?
Whether or not a disclaimer will help your position if you are sued for copyright infringement depends on the particulars of your case. If you consider these factors beforehand and follow how copyrighted material has been used in prior cases that have been deemed fair use it might help your case.
However, generally, a disclaimer by itself will not help. That is, if the fair use factors weigh against you, the disclaimer won’t make any difference.
A commonly known case that argued fair use involves a , where the publisher included a disclaimer that the book “has not been approved by anyone connected with Seinfeld” and that “the publishers and authors disclaim any liability from any damages resulting from its reliance or use.” In the end, the court still found that the book was not a fair use.
So, while a disclaimer can sometimes be helpful, it is not a guarantee that you will avoid liability for copyright infringement.
Still Have Questions?
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DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.