Posting Videos on YouTube – Copyright Infringement or Not?
The “Mash-Up” Provision
By Anthony Pranata of Courtney Aarbo Fuldauer LLP
Have you ever watched a YouTube video where the creator of the video used a popular song as the background music? Have you ever wondered whether the creator got permission from the artist of the song to use the song in the YouTube video? Have you ever wondered what would happen if the song artist decided to sue that video creator for “stealing” his/her song without permission?
You may have come to the logical conclusion that it is not worth it for pop stars like Justin Bieber and Miley Cyrus to crack down on that artistic YouTube video creator who decided to use “Baby” and “Wrecking Ball” in his video, and you are probably right. However, from a legal perspective, even if those artists wanted to crack down on the video creator, the video creator would have many defences available to him against these superstars.
Generally speaking, you cannot use a substantial portion of copyrighted work in your own work without the permission of the owner of the copyrighted work. However, copyright law is full of exceptions, one of which being the exception of non-commercial user-generated content. This exception is enumerated in section 29.21 of the Copyright Act, RSC 1985, c. C-42 (a new piece of legislation that was introduced into the Copyright Act in 2012) – this provision is sometimes referred to as the “mash-up” provision. This provision states that it is not an infringement of copyright to use even a substantial amount of a copyrighted work in your own new work provided that:
- The copyrighted work has already been published (ie. made available to the public);
- Your new work was created for non-commercial purposes;
- The source of the copyrighted work is mentioned in the new work if it is reasonable in the circumstances to do so;
- The creator of the new work had no reason to believe that the copyrighted work was itself an infringement on another party’s copyright; and
- The use of, and dissemination of, the new work does not have a substantial adverse effect on the copyrighted work.
If the above conditions are met, the YouTube video creator would not have to worry about million dollar lawsuits from Hollywood pop stars. However, if the video were to become YouTube famous and the video creator started raking in royalties as a result, he might want to consider giving Justin Bieber’s and Miley Cyrus’ agent a call to see if he can get a license from them.
For more information, please contact the law office of Courtney Aarbo Fuldauer LLP at:
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Anthony Pranata, Barrister & Solicitor
Canadian Intellectual Property Office:
*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*