Fair use and legal exceptions

Short answer: the law allows some uses without permission, like quoting a work for a review or making a parody. In the US this is called fair use, in Europe these are fixed exceptions. They are much narrower than many creators think. Using a popular song as background music is almost never fair use.

Fair use in the United States

US law allows “fair use” of protected work for purposes such as criticism, comment, news reporting, teaching and research. There is no fixed list. A judge weighs four factors:

1. Purpose and character. Do you add something new, like commentary or criticism, and is it commercial?
2. Nature of the work. Creative works (songs, films) get more protection than factual ones.
3. Amount used. How much did you take, and was it the heart of the work?
4. Effect on the market. Does your use replace the original or hurt its sales or licensing?

You only know for sure if a use is fair when a judge decides. That makes fair use a defense, not a permission slip.

Exceptions in Europe

Europe has no open fair use rule. Instead, the law has a closed list of exceptions, and every country picks which ones it adopts. The most important ones for creators, available in the Netherlands too:

• Quotation for criticism, review, discussion or news.
• Caricature, parody and pastiche.
• Illustration for teaching and scientific research.
• Incidental use, when a work appears by chance in the background and is not important.
• Private copying for your own use (not for sharing).

Since the 2019 Copyright Directive, the quotation and parody exceptions must be respected on big platforms like YouTube and Instagram in every EU country.

Quoting for review and criticism

In the Netherlands and most of Europe, a quote is allowed when:

• you actually discuss, review or criticize the work you quote,
• you only use as much as you need for that purpose,
• the work was already made public legally,
• you mention the source and the maker’s name.

A music review that plays a few seconds of the song you talk about can fit. A reaction video that plays the full music video with a few comments usually does not.

Parody, caricature and pastiche

You may imitate a work to make fun of it or comment on it, as long as it is clearly different and noticeably humorous or critical. The European Court of Justice said in the Deckmyn case that a parody must evoke the original while being noticeably different, and express humor or mockery. A parody must also be fair to the original maker, for example it may not spread a discriminatory message tied to their work. Just changing the lyrics of a hit song for an ad is not a parody.

What is not fair use

• Using a popular song as background music in your vlog.
• Uploading a full film or episode “for fans”.
• Using a photo from Google Images on your website because you give credit.
• Writing “no copyright infringement intended” or “all rights go to the owner” in your description. Those sentences have no legal meaning.
• Using only 5, 10 or 30 seconds. There is no safe time limit.
• Not earning money with it. That helps a little in the US test, but does not make a use fair on its own.

Fair use and platforms

Content ID cannot judge fair use. It matches content automatically. If you believe your use is a real quote, review or parody, you can dispute a claim with that reason. But if the owner disagrees, they can take the video down, and then you get a strike. For commentary channels: show only what you discuss, talk over it and add real commentary, and avoid full songs. For everything else, the easiest way is still to use content with a clear license. See Every free license explained.