How much of someone else’s video can I use in my YouTube videos?

Short answer: If you are just using their video, none, they have the copyright. If you are using it for commentary, criticism, parody, news reporting, research, teaching, or scholarship you can use some as determined by 4 fair use factors, like are you profiting instead of the original, what is the effect and what is the source.

Long Answer: In most instances you can’t use any part of someone else’s video without the copyright creators permission. However, there are some exceptions or limitations to this. These are called ‘fair use’. Fair Use permits limited use of copyrighted material without acquiring permission from the rights holders.

The Wikipedia Fair use article states:

Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.”

The YouTube page, Fair use – YouTube, has a nice short description of these four factors.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

Basically are you trying to make something new, or are you trying to profit off another’s work?

2. The nature of the copyrighted work
Using material from primarily factual works is more likely to be fair than using purely fictional works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. However, even a small taking may weigh against fair use in some situations if it constitutes the “heart” of the work.

So how much are you using? Is it the whole idea or just a part?

4. The effect of the use upon the potential market for, or value of, the copyrighted work
Uses that harm the copyright owner’s ability to profit from his or her original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.

Courts will also look to see if your creation is a direct substitute for what sourced yours from.

So for example, if you put up a video of yourself silently making facial expressions to Blank Space by Taylor Swift, you could fail fair use, since someone could listen to your video as a replacement for Taylor Swift video or song.

YouTube also lists and busts a few Fair Use Myths.

Myth #1: If I give credit to the copyright owner, my use is automatically fair use.
Phrases such as “all rights go to the author” and “I do not own” do not automatically mean you are making fair use of that material — nor do they mean you have the copyright owner’s permission.
Myth #2: If I post a disclaimer on my video, my use is fair use.
Nope. There are no magic words that will do this for you. Posting the four factors of fair use in your video or including the phrase “no infringement intended” won’t automatically protect you from a claim of copyright infringement.

Myth #3: “Entertainment” or “non-profit” uses are automatically fair use.
Courts will look carefully at the purpose of your use in evaluating whether it is fair, but the three remaining factors also need to be considered. Declaring your upload to be “for entertainment purposes only,” won’t work. Similarly, “non-profit” uses are favored in the fair use analysis, but it’s not an automatic defense by itself.

Myth #4: If I add any original material I created to someone else’s copyrighted work, my use is fair use.
Even if you’ve added a little something of your own to someone else’s content, you might not be able to take advantage of the fair use defense — particularly if your creation fails to add new expression, meaning, or message to the original.

So what does this mean for you as a YouTuber?
Fair use is a defense. Not a license to do what you want. You can get sued, and win using fair use, but you have to pay the legal fees. Unfortunately this means that many content creators try to avoid using anything, when they would be covered under fair use, since the court fees, and legal battles are way harder than just getting permission in the first place.

Another thing that makes this harder, is as a YouTube creator, you have ContentID to deal with. Even if your video is completely legal from a fair use standpoint, you can still have matches filed against you, which you will then have to accept or appeal which can be a headache.

One simple tip is to upload any videos you are worried about fair use on, to a secondary account to ensure that you don’t get hit with a ContentID match.

If you think you are perfectly using something as fair use, this does not mean that the owner of the copyrighted content cannot sue you.  They may still report you as violating copyright law and try to get your video taken down.  If you are %100 sure that you are in the right under fair use then you can counter appeal their take down notice and try to explain your side and work things out with them to keep your video online.

There are many situations that you as a YouTuber might run into. This is a good article that covers a few, I will summarie here. – The Complete Guide To Fair Use & YouTube

Background Music. 
You are shooting an event and background music is playing. You did not add that music.  The incidental capture of copyrighted music in the background is considered fair use.  However, the context and amount of use will be taken into consideration. A video of an event with just the music, and minimal other noise may fail since your recording could be a substitute for the original and harm their profits.

Including movies scenes you reference.
You are making a video about movie sets in Hawaii. Showing brief clips for reference would be covered. But how much and how used will be considered. If you show the entire Pirates of the Caribbean with your on location shots in the corner, would probably fail.

Parodies
It needs to be a true parody. Just writing different lyrics probably wouldn’t count. Try to use as little original material as you can.

Video Gameplay and Tutorials
This is super huge on YouTube and Twitch, and while a grey area, you will probably be fine. As everyone does this, and no one cares. These types of videos probably help sales and so are not pursed by game creators.

Cover Songs of Copyrighted Music. 
This deserves its own article. Depends copyright owner. Legal Zoom has an article about this. Posting Cover Songs on YouTube? What You Need to Know. YouTube also gives copyright holders a way to monetize covers so they just do that sometimes. You will probably be fine.

Mashups
A hard problem. Definitely transformative. Lots of questions here. Lately, more copyright owners are leaving this type of content up because it is free promotion for the original and YouTube has given them ways to monetize this content.

So remember, fair use is a legal defense. Only a court of law can determine what was fair use. Fair use does not prevent you from being sued, it helps you win that lawsuit.

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