The numerous advances in technology and the rise of the internet have created several unique legal issues. One issue that is often overlooked is whether videos posted online, such as on YouTube, can be used on a website. Individuals and/or businesses that have a website should be mindful of the risk of incurring liability for copyright infringement when YouTube videos are posted and embedded onto a website.
The purpose of copyright protection is to protect original expression and not merely ideas or facts. Videos such as those posted on YouTube can be copyrighted if they are original and/or creative. A copyright can be registered with the United States Copyright Office. The owner of a copyright has the exclusive right to do and authorize the following:
1) To reproduce or copy the copyrighted work, e.g., uploading a video onto YouTube;
2) To publicly perform the copyrighted work, e.g., playing a video on a website;
3) To prepare derivative works based upon the copyrighted work;
4) To distribute copies of the copyrighted work for sale;
5) To publicly display the copyrighted work.
Since the copyright owner of a YouTube video has the exclusive right to copy and distribute the copyrighted video as well as publicly perform the copyrighted video, it is likely that by posting and embedding YouTube videos onto a website, the exclusive right of the copyright owner of such video to copy, distribute, and publicly perform the video will be implicated. The Seventh Circuit Court of Appeals addressed some of these issues in Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012).
However, the current case law is unclear as to whether the posting and embedding of YouTube videos on a website will infringe upon the copyright owner’s exclusive right to publicly perform the copyrighted video. Therefore, any time a copyrighted video from YouTube is posted and embedded onto a website without the copyright owner’s authorization, there is a risk of liability for copyright infringement.
It is a good practice to always obtain the consent of the copyright owner before posting and embedding a YouTube video onto a website. Often, it is not practically reasonable or possible to obtain consent prior to posting and embedding YouTube videos. However, there are several practical solutions that can be imposed to lessen the likelihood of being sued or threatened with a lawsuit, such as by providing a direct link to YouTube, instead of posting and embedding, and avoiding using videos from mainstream movies or television shows. If you ever find yourself in this situation, please do not hesitate to contact our office to discuss possible solutions.