Question: Can a YouTube user download other YouTube videos and create a mix of various clips in a new video that is then uploaded to YouTube? Can this be done for personal use? Can it be done for commercial use (to advertise a product)?

Answer: First, My apologies for the loooong delay in replying to this question and in posting much of anything.  My only excuse is that life is what happens while you are trying to make other plans work and in this case I was very much under the weather and therefore really lazy. So, thanks to the legions of fans who emailed me encouragement and compliments. That’s right. I said legions. First, answers to a few questions posed thus far:  Yes. No. No. Definitely not. 42. All the time. Not tonight.

Now to the answer to this particular question: Yes, one could do it, but it would be a violation of the copyright of the person who posted the video(s) in the first place. Then, the question is: Will that person (or company) go after you and what defense would you have?  If it is just personal use, it might not be worth it for them to go after you, but they would certainly have that right.  Let’s look at the basis of their claim:

If you remember my earlier posting about the YouTube Terms of Use, anyone posting a video on YouTube gives the YouTube users the right to use your video but only within the confines of that Terms of Use

[. . .] You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content. [Emphasis added.]

Look at the end of the emphasized language: You need the consent of the respective licensors. Those licensors very likely includes those who post videos. In other words, you would have to get their prior written consent.

One would have two (related) defenses. The first is “Fair Use” which comes up just about every week here at Tubefilter. Fair Use might work but remember that it is an affirmative defense–which means that you raise it in the context of a lawsuit, i.e., in a courtroom. Who wants to pay my legal colleagues (the litigators) to do that? If you are lucky, you can persuade the claimant (the one suing your) on the strength of your Fair Use argument (probably weak here) before a lawsuit begins (because it is expensive for the claimant, too).

That it would be for “personal use” would strengthen your defense, but it would probably not be enough.

The second and related defense is that of a “derivative work.” The phrase alone is enough to make my eyeballs roll back inside my skull. Basically, it means there has been enough change in the work derived from the first (i.e., copyrighted) work that the derived work stands on its own and deserves copyright protection. It does not mean that the copyright of the original work disappears, only that the elements of the derived work that are original can now have their own protection.

It does mean that you must be very, very careful asserting this defense. This is especially so at the moment because the new digital era has generated a lot of confusion in this area of the law.

So?

As all of the disclaimers make clear, nothing written in this column can be seen or used as legal advice. There are too many factors to take into account. If you were retain a lawyer to answer this question, it is likely that the lawyer would not bar you from doing whatever you want; he or she would probably feel that the best to be done is to apprise you of the risks and let you make your own decision. Some of the best content in life has been created by creating derivative works and getting permission later.

Intellectual property law may seem confusing, and it is, no doubt. But part of that confusion stems from its base in the practical world of creating and exercising those property rights. In that sense, IP does not differ from real property law–rights of use and rights of prohibiting use by others comes from the grinding of the legal process called lawsuits and legal opinions.

And as bizarre as it may sound, there is common sense in this approach.

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James C. Roberts IIIJames C. Roberts III is the Managing Principal of Global Capital Law Group and CEO of the strategic consulting firm, Global Capital Strategic Group. Between the two groups there are offices in California, Colorado, the East Coast, Shanghai and Milan. He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies. Mr. Roberts speaks English and French and, with any luck, Italian in the distant future. He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California Berkeley. Have a question? Email James

This ‘Ask the New Media Attorney’ post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented without seeking the advice of counsel in the relevant jurisdiction. Tubefilter, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.

(Top photo by webtreats.)