Risks of posting and embedding YouTube videos onto a website

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.

Users who post videos onto YouTube may mistakenly believe that YouTube owns all legal rights in the video. In reality, according to the YouTube terms of use, YouTube is given a non-exclusive license to use the video in several ways, but ownership rights remain with the actual owner of the copyright. The owner of the copyright is usually the person(s) who created the original and/or creative content of the video and placed that content into a tangible form. This may be the person who uploaded the video onto YouTube. However, this is not always the case and the person(s) who uploaded the video onto YouTube could have uploaded the video without authorization of the actual copyright owner. Such a situation could lead to complications when determining who should be contacted for consent to post and embed the copyrighted video onto a website.

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).

Based upon the current case law it is unlikely that posting and embedding YouTube videos onto a website will violate the copyright owner’s exclusive right to copy and/or distribute the videos, so long as the website does not create backup copies of copyrighted videos or otherwise allow users of the website to do so. The YouTube terms of use make it clear that the up-loader of a video onto YouTube provides other users of YouTube with a non-exclusive license to access the video through YouTube and to use, reproduce, distribute, display and perform the video as long as such use complies with the YouTube terms of use. Therefore, it is unlikely that posting and embedding YouTube videos onto a website will infringe upon the copyright owner’s exclusive right to copy and/or distribute the copyrighted video. The person posting and embedding the YouTube video is likely to escape liability even if the copyrighted video was uploaded onto YouTube without the consent of the copyright owner. In that situation, the infringer is likely to be the person who uploaded (and therefore copied or reproduced) the video onto YouTube without the copyright owner’s authorization.

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.

Show Comments

Leave a Reply

Your email address will not be published.