Ask the Attorney: Can I Remix YouTube?

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.