• Join the largest paid sponsorship network. No contracts, no gimmicks, get paid quick. New sponsorships are added daily. Join at famebit.com

What are the elements for a "critical review" fair use defense?

Acerthorn

Active Member
Joined
May 16, 2018
Messages
46
Reaction score
7
Age
30
So we all know that "critical review" generally falls under fair use. But what exactly qualifies as a "critical review" for the purposes of fair use? More specifically, how much must the borrowed material be directly related to the review itself?

Like, for example, if you use gaming footage from someone else's gaming channel - with his own unique player character in the footage - for use in your own review of that game, does that count as a "critical review" for purposes of fair use?

Case in point: SuperCarlinBrothers does a lot of Harry Potter lore discussion videos. They prefer to go by book canon when they make their theories. But they will often use clips from the movies spliced in between shots of them sitting in front of the camera and talking. Considering that they repeatedly make it clear to their fans that they prioritize book canon over the movies, it definitely seems that the movie footage they use is superfluous. It is purely there to give the audience something to look at while they make their case for book-canon lore discussions (since movie clips are generally more exciting to watch than them just sitting in front of a camera or putting up text-only excerpts from the book).

Then again, those guys are probably big enough that they can probably get express permission from Warner Brothers to use those clips. The question is ... are they even required to? The main focus of these types of videos is lore discussion, which is a sub-category of story analysis, which is in turn a sub-category of critical review. The question is not whether the videos, on the whole, fall under fair use, but whether their use of the movie footage is too distantly connected to the main point of the video to qualify for fair use.

And more importantly, can other youtube channels (e.g. small ones) use footage they didn't necessarily create, as part of their otherwise-fair-use videos?

Last but not least, I would greatly appreciate if you didn't just give your opinion on the matter, but backed up your answers with legal citations to prove it.
 
Last edited:

Shakycow

I Love YTtalk
Joined
Apr 13, 2015
Messages
866
Reaction score
451
Channel Type
Animator
The only one who can decide if a work falls under fair use or not is a judge. While there are overall rules in place, there are no specific amounts of use allowed.

You can use footage to critically review something, but only if it is specially what you’re critiquing. If you were to use someone else’s game footage, then you’d have to critique their specific style of playing if recording, not the game itself.

To review the just the game, you’d need your own footage- but even then, that could be up to the game developer/ publisher.
 

Acerthorn

Active Member
Joined
May 16, 2018
Messages
46
Reaction score
7
Age
30
You can use footage to critically review something, but only if it is specially what you’re critiquing. If you were to use someone else’s game footage, then you’d have to critique their specific style of playing if recording, not the game itself.
Fair Use.png
 

Shakycow

I Love YTtalk
Joined
Apr 13, 2015
Messages
866
Reaction score
451
Channel Type
Animator
That's adorable.
Feel free to actually do your own research or pay a copyright lawyer then.... who will ultimately tell you the exact same thing.

Copyright law is settled on a case by case basis. What is deemed fair one time may not be the next.