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Using Copyrighted Music in Videos: When is it Legal?

Carla Marshall
May 31, 2022
Using Copyrighted Music in Videos: When is it Legal?

Copyright law is one of the grayest areas on the Internet, and violations happen more often than a troll comment posted to YouTube. Well, maybe not, but potential copyright violations can be confusing to navigate if you don’t know how the laws apply to your particular situation, especially around the issue of copyrighted music and audio.

Often YouTube creators are unaware they are violating copyright laws. But we’re here to help. This post discusses the legal implications of using copyrighted music in your videos. We also highlight some of the biggest myths about copyright and music.

We should mention upfront that this is not legal advice and cannot be a substitute for a good copyright attorney.

The easiest way to avoid copyright violations is to create 100% original content. But what about using sound effects or a soundtrack in your video? The most important question is, “Am I inhibiting the original creator’s ability to earn money from this work?”. Whether or not the creator is making money from their work, you cannot inhibit their ability to do so.

Examples would include having an entire track from a Taylor Swift album playing in the background of your latest video. That’s just not going to fly in terms of copyright. Somebody could potentially rip her audio directly from your video, removing their need to buy her record to listen to her music. That’s a major no-no.

If you’re new to creating videos and want to know the basics of copyright concerning music, YouTube has an excellent overview that is definitely worth watching to bring you up to speed:

So When is it OK to Use Another Creator’s Music in Your Video?

It’s a complicated topic, but if you want to use music that someone else has created, you’ll need to know its legal implications. Obtaining permission depends on the specific piece itself and whether it needs a license or not. Let’s break it down:

Works in the public domain: the only time that you don’t need to secure special permission to use a work is when that work is in the public domain

If what you are using isn’t in the public domain, you WILL need to obtain a license to use it. The more formal the license, the more protected you are when using it. Also, keep in mind that many recordings have copyright for the song and the recording of the song itself. In that case, you will actually need to obtain two licenses.

Royalty-free music is still free to use, but it is NOT in the public domain:  there is a distinct difference between them. Permission must still be granted for royalty-free recordings. Generally, these permissions are usually blanket permissions that apply to anyone though and are very easy to obtain.

Music: The Difference Between Sharing and Stealing

There is a genuine difference between sharing someone’s musical composition and taking the same track and using it solely for your benefit. Let’s take a look at both approaches:

  • Sharing is posting the link to your favorite artist’s latest song on your social platform of choice. In this case, the owner retains the digital copy of the piece in question, and you are simply sharing the way to find it.
  • Stealing is taking a copy of the music and using it in your YouTube video. When you upload somebody else’s music or content to your own channel, it removes the artist’s ability to monetize it and likely violates the copyright.

Simply put, chances are yes. Of course, it’s a lot more complicated than that in the long run, but realize that a cover is your artistic interpretation of somebody else’s work by its very nature. Some ways to avoid a copyright violation here include:

  • Create a cover that is transformative. That is to say, you’ve put such an original, creative spin on the piece of work that it is unrecognizable from the original.
  • Use the YouTube search feature before covering a song to check the music rights. Doing the research will save you real problems later.
  • Use royalty-free tracks that are licensed to you.
  • Explore the options available to you via YouTube’s own Audio Library.

What Will Happen if I Use Copyrighted Work in My YouTube Video?

Well, if you are very, very lucky, at best, nothing will happen. But you had better hope you aren’t making money from that piece of work. One major determining factor is whether or not money is being made from the use of the copyrighted work. Make enough money, and you are bound to catch the attention of somebody who wants a slice of your earnings. Some other things that could occur:

  • Your YouTube channel may receive a strike (3, and you’re OUT!)
  • Your audio may be muted.
  • Ads may be placed on your videos, with the benefits going straight to the original artist/publisher.
  • You could be sued by the owner of the work you are using.

Luckily, YouTube has a feature within its Audio Library that will give any creator a glimpse of the site’s action against a video that uses copyrighted music as part of its soundtrack.

YouTube has a sophisticated copyright tracking system called ContentID. It is an automated system that matches your content against a database of copyrighted material. If the system flags your video, you will receive a notice and an opportunity to dispute the flag, but your content may be monetized or blocked if you do not win that appeal. Here’s more from ContentID from YouTube itself:

You may think you just created the most unique, original video and that there is no way for it to trip up on the Content ID system. Wrong. 

Did you use stock audio from your editing program? The chances are that this music may only be approved for personal use, and uploading it to YouTube and monetizing it could have just violated that license. Always check the usage rights before you post content that includes something from a third-party source.

What is “Fair Use?” and How Can a Creator Benefit From It?

‘Fair Use’ is a set of exceptions that limit the power behind copyright when another person’s use of a piece of work is considered “fair.” Many of the guidelines surrounding fair use are governed by the Digital Millennium Copyright Act (DMCA), and we encourage you to look at their policies. 

Fair use is really the ultimate gray area when it comes to potential copyright violations, but a few rules from section 107 of the DMCA can help you determine if what you are doing is fair use:

(1) the purpose and character of the use, including whether such use is commercial 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.

So, now that we’ve looked at some of the biggest concerns regarding copyright, music, and video, let’s look at some of the biggest myths surrounding the topic. This should clear up any questions you may have or give you the extra knowledge you need as a video creator:

#1 Nobody has contacted me, so I must not be violating their copyright.

The fact of the matter is the internet is a vast place. Copyright can be difficult to detect, but that doesn’t mean it isn’t being violated. The longer you benefit from somebody else’s copyright, the harsher the penalty could be when you are discovered.

#2 My work is just a fan video, so I’m covered.

This one is a little complicated – so possibly. The type of use is critical but not the only way to determine if copyright has been violated. This type of use would fall under fair use, and the four points we mentioned earlier should be considered.

The only time you have a nearly full-proof chance to monetize these works is if it’s a parody. Comedy, and specifically criticism, is heavily protected by US laws.

#3 I didn’t enable ads on/monetize my video, so it’s automatically fair use.

That’s not going to work. The original copyright holder may still be able to force a takedown of your material, even when it is entirely used within that law. There are many more factors at play in fair use than whether or not something is monetized. Not monetizing a work is a significant first step to covering your behind, but it’s not the only thing to worry about. The nice thing is that you’ll generally be safe from a major lawsuit when using something properly within fair use guidelines.

#4 I didn’t see a copyright notice, so it must not have one.

Think again. Everything created in the US and other major countries is copyrighted and protected immediately, with no action required by the creator. A notice may increase the strength of that copyright and the damages received in the case of a violation, but it is not required.

#5 I found it on the Internet, so it must be in the public domain.

Not at all. Chances are more likely it is copyrighted material. Postings to the Internet are not automatically in the public domain and do not grant any permissions for use just by being there.

#6 I wrote a little disclaimer in my description box crediting the artist and claiming I had no intention to violate copyright laws, so I’m safe.

Nope. Someone started the idea that this would absolve you of your copyright sins. Still, if you violate copyright laws, saying you didn’t intend to infringe them doesn’t forgive you, and you may still be punished to the full extent of the law. When in doubt, leave it out!

Copyright is a complex area to navigate, especially if you’re unfamiliar with all the nuances. Always check with an attorney if you’re in any doubt.

Carla Marshall Author

Carla Marshall

Carla Marshall is the Content Marketing Manager at TubeBuddy. She has 10+ years of experience in video marketing, social media management, content marketing, DRM, & SEO

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