The No-No of "No Copyright Infringement Intended" Disclaimers
By: Christine-Marie Lauture, Esq.
"No copyright infringement intended."
"No copyright intended."
"I do not own the music in this video/rights to this music."
"I do not take credit for this video."
As the saying goes: Monkey see, monkey do...in the world of improperly uploading content. While this pandemic has forced the world to get adjusted to life at home, you may find yourself going down the rabbit-hole that is choreography videos on YouTube to watch and learn from (with copyrighted music played in the background). Or you may find yourself being peer-pressured into one of the Quarantine-popular challenges, such as the playful wardrobe-change "#DontRushChallenge" on TikTok or Twitter. In either case, you might have come across a slew of videos with one of the aforementioned disclaimers - either listed in the title of the video or within the information/caption section. Why are they there? Well, it is common knowledge by online content creators that any use of copyrighted material (including music) in a video, without a license to do so, may be copyright infringement.
Why does copyright infringement matter?
Copyright infringement, as a general matter, occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. A copyright owner can seek damages for unpermitted use of its work. Not only could the hard work you put into your video be in vain, as your content will be at risk of being taken down or muted, but you could also be subject to potential hefty fines and/or legal action against you.
Can I use "No copyright infringement intended" as an effective disclaimer and avoid any legal issues?
In short, absolutely not. Using the phrase "No copyright infringement intended" is merely announcing to the universe that you are committing willful copyright infringement, by knowingly using someone else's protected content without permission. Usually, those disclaimers are daubed by someone who just wanted to use content for free, and who apparently believes making a disclaimer that he or she didn't intend to infringe a copyright makes one an innocent actor. However, the disclaimer suggests that you are fully aware that you are using copyrighted material without permission.
Why are the disclaimers used so frequently?
It is a legally misguided belief that such disclaimers furnish protection against infringement. Many people simply use these disclaimers without really understanding what they mean. Some intend to use disclaimers as notices to state that they are not the copyright owners. Although many also erroneously rely on the Fair Use Doctrine, which is an exception to copyright laid out in the statute, Fair Use is only a defense used in a copyright infringement action, and not applicable here.
What happens when I rely on the disclaimer and upload my content anyway?
As these disclaimers effectively function as red flags for copyright enforcement teams, it is very likely that you will receive a Digital Millennium Copyright Act ("DMCA") takedown notice. A DMCA takedown notice is the first step in the process of removing infringing content from a website at the request of the copyright owner (or one acting on behalf of the copyright owner) of the content. You can either receive a DMCA takedown notice directly from the copyright owner, and/or from the Internet Service Provider ("ISP"), such as YouTube, or its agent. If there is an infringement, which you may expressly acknowledge by using one of those disclaimers on your uploaded content, the best response would be to proceed with taking down and removing the content at issue, per the instructions on the notice.
If you choose to ignore the notice, or fail to immediately respond by the time specified, you could be facing a copyright infringement lawsuit. If a copyright owner pursues a copyright infringement suit against you and can show that you engaged in "willful" infringement, you may be liable for statutory damages up to $150,000 per work. To state frankly, things can become very expensive and very quickly.
How can I properly use or upload someone else's content?
All of those stressful scenarios can simply be resolved by getting permission to use the copyrighted content. Your safest bet is to always assume that any created work you come across is protected under copyright law. If there is not an explicit statement from the copyright owner on a work that states it is in the public domain, then there is a good chance that someone owns the rights to it. Permission can obtained by the following:
Find out who is/are the copyright owner(s). Some owners use third-party companies to facilitate licensing opportunities. One example of these companies is Creative Commons, which is a non-profit that provides public copyright licenses to enable the free distribution of a copyrighted work. Even then, however, there are specific conditions that apply to different Creative Commons licenses. So, make sure to read the Terms & Conditions with any license and understand exactly how the content can be used and whether there are any limitations on the use.
GET CONSENT! Request use of the intellectual property you wish from either the copyright owner or its third-party licensing facilitator. A helpful tip: when asking someone for consent to use its content, be specific about the intentions for the use.
When your request for use is approved, you may use the intellectual property - AS PER the terms & conditions agreed to with the owner.
An alternative: Use music from the public domain in your videos. There are also quite a few websites that offer royalty-free background music for videos (i.e. PremiumBeat; Epidemic Sound; Artlist; Soundstripe, etc.).
For more information on compliance with copyright law, visit the U.S. Copyright Office.
“Using the phrase "No copyright infringement intended" is merely announcing to the universe that you are committing willful copyright infringement”
Social Media Platforms Making Copyright Compliance Easier
As many have been enjoying, Instagram has created a music sticker and music mode feature to allow users to add music to their Stories. With the Music feature, users can either include music before or after capturing a photo or video for their Stories, by typing in or scrolling through a wide selection of songs, which Instagram has license to use. Whatever song (and portion of a song) a user selects for a Story, a sticker will be located in the Story displaying the song title and artist name.
Similarly, with the family-favorite and Pandemic-popular TikTok app, the platform provides users with a platform for sharing short video clips with an audio track. TikTok has partnered with several labels, allowing its users to dance and lip-sync their desired popular songs without fear of a takedown (although these licenses may not include permission from the songs' underlying owners, the music publishers, which require separate licenses). The safest way to ensure a song is cleared is to use what is already offered in the app, similar to Instagram. There is a Sounds feature that provides a thorough library of licensed music for users to choose from as their background audio.
Copyright infringement is not something to take lightly and all users of content should have a thorough understanding of it before deciding to post someone else's work. Copyright law does not excuse those who infringe unknowingly, and don't let the fallacy of disclaimer protection get you stuck!
Disclaimer: Please note that the preceding is for informational purposes only and is not to be relied upon as legal advice. No Attorney-Client privilege has been created. Consult an attorney for further information on the use of copyright-protected content.
(Originally posted by Christine-Marie Lauture, Esq. on the New York State Bar Association - Entertainment, Arts & Sports Law Blog on April 8, 2020)