Fair Use can't Protect you Against Defamation

The issue of copy right claims against youtubers surfaced again recently. The video game website Front Towards Gamer has an interesting article about the popular youtuber and video game critic, T otalBiscuit . TotalBiscuit recently uploaded a video criticizing FUN Creators’ new game Guise of the Wolf, titled “Let’s NOT Play Guise of the Wolf”. As has happened before with a TotalBiscuit video, namely the critical commentary of Day One: Garry’s Incident , the developers have seemingly filed a complaint ticket with YouTube against the video, enforcing copy-right claims. Full article here Fair use is the primary legal reason why so many youtubers upload video game gameplay, use images, and sometimes music to accompany their commentaries, walkthrough, how-to's, and do-it-yourself's. Keep in mind this only protects the uploader from copy right infringement...in some cases. According to the Electronic Frontier Foundation , there are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at ( 17 U.S.C. § 107 ): The four factors of fair use, a ccording to Youtube I don't know all the details surrounding the TotalBiscuit issue. But if you like youtube videos, have your own channel, or are thinking about creating a channel, this incident should interest you. It's less likely that you will run afoul of copy right infringement while doing a video game review. It's more likely that you can subject yourself to a defamation lawsuit and that's probably what is going to happen as a result of the incident covered by Front Towards Gamer. When you're reviewing and/or critiquing a product, company, or service you must stick to the facts and make a clear distinction when something is your opinion. This is especially important if you are using humor in your video. If the audience takes your jokes seriously, and you've made assumptions about the product that you can't prove well that's defamation. Check out the Blog Herald article here to read about how a blogger was sued for defamation when he published a negative review for a restaurant. You're probably wondering how companies can cherry pick how they use copy right claims. It's just my humble opinion that when you create content that supports, advertises, or in any way assists the company in making money...well, they look the other way. That reminds me - It's also important to disclose to your audience if you've received compensation for the review, previous reviews, or from a competing company. I'm not a lawyer - this is not legal advice

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Fair Use can't Protect you Against Defamation is an episode from Gamers On Tap by Eric McLeroy.

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This episode was published on Feb 20, 2014.

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