YouTube enables Remix on short videos, but is it wise to use 3rd party audio?

Vondran Legal

As a YouTube creator myself (check out my popular legal information channel here), I have recently come to post "short" videos.  These are videos under one minute, where I usually post them as a "teaser" and post a link to the full video.  This is a fun new feature, and I noticed there is a "remix" feature that I can set up if I want to allow third-party creators to use either (a) a 5-second video clip or (b) an audio clip.  This is something I can easily allow or disallow in my YouTube studio.  I can also allow others to "embed" my video into their website or block third parties from being able to do this.  I like to share my videos, so I allow embedding.  This can be seen as a form of a LICENSE to use my video.

YouTube studio remix feature

As you can see, I can also set up my new videos as "Creative Commons License" or use the YouTube Standard License.  I like the creative commons, because again, I don't mind sharing my free legal education videos and this requires "attribution" to my page.

YouTube embed feature

Here is a look at the "embed feature."  As you see, it generates code you can slip into your websites or blog posts, and technically, since the user enabled this feature and grants YouTUbe worldwide rights to distribute the content at issue, I would argue that this creates a LICENSE to embed the content on your website, or share it on the other sites such as Pinterest, Twitter, and Facebook which the YouTube player also allows.  This is not legal advice, just my opinion.

Youtube remix instructions

While I really love everything YouTUbe does, I was thinking about how I will sometimes use third-party music clips in my videos.  This means, I will purchase a short ten or 20-second clip to use in my videos (this is my copyright license).  However, when I make this purchase, I only get the rights to use the music. I don't get any ownership rights, and the original creator holds that, and my music platform licenses the music from the original studio and holder of the master rights.  If I allowed third persons to use this music, I could potentially be held liable for copyright infringement or contributory copyright infringement, but allowing others to use the music through my "REMIX" on the panel.  So for me, while I love to share my videos (which consist of just me, and some short clips that constitute fair use), I am comfortable allowing remix of my video.  No big deal.  But, if you are posting music that you do not have the right to SUBLICENSE, then I would not allow someone to remix that particular video.  Better safe than sorry.  Plus, it is common knowledge that YouTube's Content ID platform does not block every song in the world, so some music passes through their copyright filter, and so if you remix these, you might still end up in legal hot water.  Would third-party music also create a problem;em with embedding a song on someone else's website?  Maybe it would as well.  Me, I don't like to take chances.  So, if I have licensed music in my videos, to play it safe, I will not allow embedding or remixing and disable those features from my regular videos and shorts.  As I recently searched YouTube shorts, I noticed most professional influencers appear to do just that (block the remix feature).

As discussed above, if you license music from a site like StoryBlocks (which I use), you need to see what their license says

Storyblocks music license

So, make sure you know what rights you have, and whether or not you are allowed to transfer or sublicense those rights to third-parties before setting your YouTube permissions.

"A defendant licensee is not liable for copyright infringement "if the challenged use of the work falls within the scope of a valid license." Great Minds v. Office Depot, Inc., 945 F.3d 1106, 1109 (9th Cir. 2019). The scope of the license is a critical factor because a licensee may still be liable for infringement if it acts beyond the grant of a license. See MDY Indus. v. Blizzard Ent., Inc., 629 F.3d 928, 939 (9th Cir. 2010); see also Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999)." 

"In addition, a license granted without authority will not insulate the licensee from an infringement claim. See Spinelli v. NFL, 903 F.3d 185, 203 (2d Cir. 2018) ("[i]t is without question that the sublicensor may not convey more than he owns, and if [*10]  a sublicensor has no right to issue a particular license, the sublicensee cannot acquire rights in the copyrighted works because the sublicensor did so anyway.") (internal quotation and citation omitted); see also 3 Nimmer on Copyright § 10.15 (2022) ("[B]oth the licensee and the sublicensee can be held liable for acting without authorization and thereby infringing the licensor's copyright.").  See Schneider v. YouTube, LLC, 2023 U.S. Dist. LEXIS 1878, *9-10."

When it comes time to hire a lawyer for a social media dispute or DMCA action such as filing a counter-notification or a federal court lawsuit or dealing with claims of infringement, you should consider a lawyer who has their OWN YOUTUBE channel.  This will save you a ton of time and money having to explain everything to an "intellectual property lawyer" who may deal in patents, trade secrets and trademarks but not know the ins and outs of content creation, copyright licensing, and fair use defense.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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