Dan Robinson
EF5
A big component of copyright cases today involves infringers using photos and videos without permission or a license, then asserting that what they are doing is fair use. Pushing back on this abuse is very simple: just know what the law actually says. What will reveal if someone truly knows fair use is to just ask them to state one of the four factors.
The principle of fair use is codified in Federal law under 17 U.S. Code § 107. (direct link to the law)
Most people asserting fair use stop reading at the first sentence in the law, thinking that if what they are doing is "criticism, comment, news reporting, teaching or scholarship", then it always qualifies. But read the next few lines: those are simply things that might, not will qualify as fair use - everything is judged on the four factors test.
The US Copyright Office's Fair Use site is the first or second result in Google when you search for "fair use". Their site has a repository of actual court decisions on fair use that you can read. Every one of those cases was put through the four factors test - none were decided on whether or not something had enough commentary, criticism, editing, "transformativeness", gave "credit" or any of the things you routinely see asserted by people on Youtube and social media.
So what are the four factors, and how do they apply to storm chaser video and pictures? Here is a breakdown:
1.) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
This is pretty straightforward. "Commercial" is a very broad category that includes anything that does or can result in financial gain, either directly or indirectly, now or in the future. That means someone building a social media following, even if they aren't making money at the time, qualifies as commercial. That is because large social media followings have commercial value and can be monetized (including via tips/donations) or even sold at any time.
2.) The nature of the copyrighted work.
This refers, in practice, to whether the copyrighted work is published or unpublished and nonfictional or fictional (having more creative expression in its creation). Using fictional works weighs against fair use, while use of something depicting actual events weighs more in favor of it. This is the only one of the four factors that lean in favor of using chaser footage/photos without permission or a license. However, courts have given this factor much less weight in actual decisions than the other three (Ref. 3).
3.) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
This is another fairly straightforward factor. If someone uses a large part of a work, or all of it, it weighs against fair use. But also if the heart of the work is used (meaning one of the best/most compelling parts of it), then it also weighs against fair use. In my own cases, this has involved things like an infringer using a split-second lightning strike out of one of my videos. It was less than a fourth of a second of video, but it was the best part of that video and therefore failed this factor of the fair use test. Many believe in the mythical "5 seconds or less rule" that is said to always make something qualify as fair use. But if that 5 seconds is one of the best parts of a tornado or storm video, then it will still fail this factor of the test.
4.) The effect of the use upon the potential market for or value of the copyrighted work.
This is another fairly straightforward factor. On the internet, "affecting the market for the work" includes impacts like diverting viewers/growth from monetized channels and/or competing for algorithmic featured/recommended video slots. It has also covered impacts like lost license fees or merch sales. A subset of this factor that is also evaluated by courts is the effect on the market for the work if the use in question became widespread. This is relevant to the many tornado documentaries we are starting to see on Youtube: if those unlicensed uses became the norm, large production companies would never have to license tornado video for television documentaries, which have traditionally been a major source of revenue for chasers.
All of these four factors are considered in a case. That means a case might fail one of the factors, but strongly pass the others and be ruled by a court to be fair use.
The bottom line
You will see it said that fair use determination is highly subjective, and each case can only be ultimately adjudicated in Federal court. And it is true that most cases don't make it to court due to the massive costs required to file a case, litigate and defend one. But that doesn't mean that a small-time rights holder can't or won't pursue a case. Those four factors are straightforward enough to have a lawyer engage in most cases that clearly fail that test, and those cases are mostly settled out of court before the more expensive lawsuit becomes necessary.
A person or company using footage (that is, someone else's financial asset) without permission or a license has the right to attempt to assert fair use on what they are doing. But the law also gives the owner of that content the right to challenge that person or company if they disagree. When that happens, the person asserting fair use could be responsible for not only that owner's lost license fees, but all legal fees and potentially even their monetized online accounts. And none of that is "extortion" or "copyright trolling", it is the law.
The bottom line for anyone using chaser footage and photos is to, at minimum, know the four factors of fair use and how their use will stand up to that test. Reddit, Discord, AI and what others are doing/getting away with are misleading on what fair use actually is and the corresponding risk to one's own channels and finances.
Regarding all of the new tornado documentaries on Youtube: I really like them and I'm a fan. It takes talent & hard work to do that, which I respect. I'm looking out for those creators by educating on Fair Use and copyright, as those things can really cost them & hurt their success if they ignore them.
References and further reading
1. US Code § 107
2. US Copyright Office's Fair Use Index
3. Copyright and Fair Use by Harvard University
The principle of fair use is codified in Federal law under 17 U.S. Code § 107. (direct link to the law)
Most people asserting fair use stop reading at the first sentence in the law, thinking that if what they are doing is "criticism, comment, news reporting, teaching or scholarship", then it always qualifies. But read the next few lines: those are simply things that might, not will qualify as fair use - everything is judged on the four factors test.
The US Copyright Office's Fair Use site is the first or second result in Google when you search for "fair use". Their site has a repository of actual court decisions on fair use that you can read. Every one of those cases was put through the four factors test - none were decided on whether or not something had enough commentary, criticism, editing, "transformativeness", gave "credit" or any of the things you routinely see asserted by people on Youtube and social media.
So what are the four factors, and how do they apply to storm chaser video and pictures? Here is a breakdown:
1.) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
This is pretty straightforward. "Commercial" is a very broad category that includes anything that does or can result in financial gain, either directly or indirectly, now or in the future. That means someone building a social media following, even if they aren't making money at the time, qualifies as commercial. That is because large social media followings have commercial value and can be monetized (including via tips/donations) or even sold at any time.
2.) The nature of the copyrighted work.
This refers, in practice, to whether the copyrighted work is published or unpublished and nonfictional or fictional (having more creative expression in its creation). Using fictional works weighs against fair use, while use of something depicting actual events weighs more in favor of it. This is the only one of the four factors that lean in favor of using chaser footage/photos without permission or a license. However, courts have given this factor much less weight in actual decisions than the other three (Ref. 3).
3.) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
This is another fairly straightforward factor. If someone uses a large part of a work, or all of it, it weighs against fair use. But also if the heart of the work is used (meaning one of the best/most compelling parts of it), then it also weighs against fair use. In my own cases, this has involved things like an infringer using a split-second lightning strike out of one of my videos. It was less than a fourth of a second of video, but it was the best part of that video and therefore failed this factor of the fair use test. Many believe in the mythical "5 seconds or less rule" that is said to always make something qualify as fair use. But if that 5 seconds is one of the best parts of a tornado or storm video, then it will still fail this factor of the test.
4.) The effect of the use upon the potential market for or value of the copyrighted work.
This is another fairly straightforward factor. On the internet, "affecting the market for the work" includes impacts like diverting viewers/growth from monetized channels and/or competing for algorithmic featured/recommended video slots. It has also covered impacts like lost license fees or merch sales. A subset of this factor that is also evaluated by courts is the effect on the market for the work if the use in question became widespread. This is relevant to the many tornado documentaries we are starting to see on Youtube: if those unlicensed uses became the norm, large production companies would never have to license tornado video for television documentaries, which have traditionally been a major source of revenue for chasers.
All of these four factors are considered in a case. That means a case might fail one of the factors, but strongly pass the others and be ruled by a court to be fair use.
The bottom line
You will see it said that fair use determination is highly subjective, and each case can only be ultimately adjudicated in Federal court. And it is true that most cases don't make it to court due to the massive costs required to file a case, litigate and defend one. But that doesn't mean that a small-time rights holder can't or won't pursue a case. Those four factors are straightforward enough to have a lawyer engage in most cases that clearly fail that test, and those cases are mostly settled out of court before the more expensive lawsuit becomes necessary.
A person or company using footage (that is, someone else's financial asset) without permission or a license has the right to attempt to assert fair use on what they are doing. But the law also gives the owner of that content the right to challenge that person or company if they disagree. When that happens, the person asserting fair use could be responsible for not only that owner's lost license fees, but all legal fees and potentially even their monetized online accounts. And none of that is "extortion" or "copyright trolling", it is the law.
The bottom line for anyone using chaser footage and photos is to, at minimum, know the four factors of fair use and how their use will stand up to that test. Reddit, Discord, AI and what others are doing/getting away with are misleading on what fair use actually is and the corresponding risk to one's own channels and finances.
Regarding all of the new tornado documentaries on Youtube: I really like them and I'm a fan. It takes talent & hard work to do that, which I respect. I'm looking out for those creators by educating on Fair Use and copyright, as those things can really cost them & hurt their success if they ignore them.
References and further reading
1. US Code § 107
2. US Copyright Office's Fair Use Index
3. Copyright and Fair Use by Harvard University
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