Monday, June 16, 2014

Can We Use YouTube Clips for EAP Nonprofit?

Dear Rich: I work for a non-profit Employee Assistance Program and we provide short-term therapeutic counseling for workplaces. As part of our services, we have a small training department consisting of two trainers and a catalog of approximately sixty trainings we developed on a variety of topics. Some of these have small clips, two-to-five minutes, of TV shows, movies or maybe a YouTube clip. With the TV and movies, we never use clips that could potentially spoil the plot or give away a surprise, etc. Nothing that would take away someone's desire to see the show or movie. We're glad you don't give away the plots but unfortunately that won't make any difference for copyright purposes. (Neither will the fact that you're a nonprofit.) If you're using other people's copyrighted content without permission, and it's not excused as a fair use, you're liable for infringement. As always, if it's unlikely that the copyright owners will learn of the use, then the risk to the EAP diminishes accordingly.
What about fair use? Your use sounds transformative -- you're commenting on the clip -- so that would be helpful for a fair use defense. On the other hand, the clips are much longer than what's usually excused (under a minute). Look at the four factors and see what you think, or better yet, check with a lawyer if that's possible. Remember, claiming this defense is not enough to stop a lawsuit. If the other side disagrees with you, only a judge or arbitrator can determine whether it's a fair use.

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