You upload a video where you react to a trending song, add your commentary, and share it on YouTube. The video gets monetized. Then you receive a copyright claim or worse—a copyright strike. You think: “I added my own commentary. Isn’t that fair use?” The answer: probably not the way you did it, even though fair use is a real legal doctrine that does protect some creators.
Fair use confusion costs creators accounts, revenue, and sometimes legal fees. The problem isn’t that fair use is fake; it’s that it’s wildly misunderstood. Creators believe that adding commentary, labeling content as “for educational purposes,” or monetizing nothing makes something fair use. Courts don’t work that way. Fair use is a complex legal doctrine that judges determine on a case-by-case basis after examining specific factors. Understanding what courts actually evaluate separates creators who can confidently use copyrighted material from those taking legal gambles.
How Fair Use Actually Works in Copyright Law
Fair use is an affirmative defense in copyright law. This means it isn’t a permission you get upfront—it’s an argument you make if you’re sued. You use copyrighted material without permission, someone claims infringement, and then you argue in court that your use was fair. A judge determines whether the factors align in your favor. This distinction matters because it means using material “fairly” is never 100 percent risk-free before you publish. You’re taking a calculated legal gamble.
Congress wrote fair use into copyright law precisely because absolute copyright protection would stifle free speech, criticism, education, and parody. Artists should be able to critique other artists’ work by showing clips. Scholars should be able to quote published research. News outlets should be able to show clips from events. But fair use has boundaries, and understanding them prevents violations.
The fair use doctrine was formally introduced into copyright law through the Copyright Act of 1976. It codified what courts had been informally recognizing: some uses of copyrighted material serve important public purposes and shouldn’t be prohibited. However, the statute itself is vague by design. It doesn’t list specific use cases that are always fair. Instead, it tells judges to consider four factors and determine whether the defendant’s use qualifies as fair.
The Four Factors Courts Evaluate
When a court analyzes whether something is fair use, it examines these four factors: the purpose and character of the use, the nature of the copyrighted work, the amount of the original work used, and the effect of the use on the market for the original work. Courts don’t apply these factors as a simple checklist. A single factor can sometimes outweigh the others. Judges look at the big picture of how the defendant’s use relates to copyright’s purpose.
The purpose and character of the use is often the most important factor. This is where courts determine whether your use is transformative. Transformative means you took existing material and used it for a fundamentally new purpose, creating new meaning or message. A 2 Live Crew parody of “Oh, Pretty Woman” was transformative because parody inherently comments on or criticizes the original. The parody used copyrighted material but for a different purpose than the original song. Courts are more likely to find fair use if the new work is transformative.
This is where most reaction videos and commentary fail. Simply playing a song or clip and then saying what you think about it isn’t transformative. You’re using the material for its original purpose—entertainment or education—just with your commentary added. That’s different from taking material and using it in a way that creates entirely new meaning. A music video reaction where you just watch and comment is using the music for its original entertainment purpose. A political remix of a song that critiques a politician is using the music for a new purpose (political commentary), making it transformative.
The nature of the copyrighted work matters in limited ways. Creative works (music, novels, films) get more copyright protection than factual works (news, databases). This means copying from a creative work weighs against fair use more heavily than copying from a factual work. If you’re quoting a scientific paper, fair use is easier to argue than if you’re copying from a song. However, this factor alone rarely determines fair use.
The amount and substantiality of the work used is straightforward: how much did you copy, and did you copy the “heart” of the original? If you use 30 seconds of a 3-minute song, that’s 17 percent. If you use 30 seconds of the most recognizable hook, that might be the heart. Courts consider both quantity and quality. Copying a small amount of core material can weigh against fair use. Copying a large amount of non-essential material might not. Context matters enormously.
The market effect is the fourth factor and sometimes the most decisive. Did your use harm the copyright holder’s ability to sell their work? If your documentary quotes extensively from a novel but people still buy the novel, market harm is low. If your parody substitutes for the original and people buy your parody instead of the original, market harm exists. This factor is where YouTube and streaming create complications. If a reaction video prevents someone from watching the original, that’s market harm. But if a reaction video drives interest in the original, that’s the opposite of market harm.
What Fair Use Doesn’t Protect
Fair use does not protect you if you simply used work without permission and happened to be right about the legal justification. Many creators confuse “I had a good reason” with “I legally had the right.” Fair use is determined after publication in many cases, not before. If you upload content and then face a strike, you can’t travel back in time and make it fair use. The law worked.
Fair use doesn’t protect you because your channel is educational. Copyright law explicitly allows fair use for teaching, scholarship, and research, but “educational” doesn’t mean “for-profit educational.” A teacher showing a film clip in a nonprofit classroom has a strong fair use argument. A YouTube channel monetizing educational content using copyrighted material has a weaker fair use argument because the channel owner profits from the use.
Fair use doesn’t protect you because you credited the original creator. Copyright notices and attribution are good practice, but they don’t invoke fair use. A creator might appreciate the credit, but it doesn’t change the legal analysis. You still used their copyrighted material without permission, and the four factors still apply the same way.
Fair use doesn’t protect you because you didn’t monetize the content. Platforms frequently claim that content isn’t monetized, assuming that removes fair use concerns. It doesn’t. Non-monetized copyright infringement is still infringement. What non-monetization does do is remove one argument about market harm. The copyright holder still profits from sales and licensing, but less money flows away due to your content. That weighs slightly in favor of fair use, but it’s not a blanket protection.
Real Fair Use Scenarios: What Courts Have Protected
A 2010 case, Cariou v. Prince, established that appropriation artists could potentially claim fair use when transforming images into new artworks. Prince’s paintings, which heavily reworked original photographs, were found to be fair use in some cases (though not all). What mattered was whether Prince’s changes were sufficiently transformative—did he create new meaning or expression? Some paintings were transformative; others weren’t. The court didn’t give Prince a blanket free pass; it evaluated each work individually.
A lawsuit between H3H3 Productions and Matt Hoss clarified that commentary with video clips could be fair use under certain circumstances. H3H3 reacted to and criticized Matt Hoss’s bizarre videos. The court found that H3H3’s commentary was transformative—they were critiquing Hoss’s content, not just enjoying it. They used clips but for a fundamentally different purpose: criticism. The fair use finding for H3H3 depended on the criticism being genuine and the use being transformative for commentary purposes.
A landmark case, Lenz v. Universal, protected a mother who posted a video of her baby dancing to a Prince song. Universal sent a DMCA takedown. The court found that the baby video was likely fair use—it was a personal, non-commercial use that didn’t harm Prince’s market and was transformative (the video’s purpose wasn’t to share the song; it was to share a baby moment). Lenz won because her use couldn’t reasonably substitute for demand for Prince’s music, and her purpose was fundamentally different.
Google’s use of thumbnail images in search results was found to be transformative fair use by courts. Google wasn’t trying to provide the full images; it was transforming images into a searchable index. The new purpose (search functionality) was sufficiently different from the original purpose that courts protected it. Even though Google copied the images entirely, the transformation justified it.
The Transformative Use Doctrine and Why It Matters Most
Since 1994’s Campbell v. Acuff-Rose Music decision, transformative use has dominated fair use analysis. Courts ask: did the defendant use the copyrighted material for a fundamentally new purpose or create new meaning and expression? If yes, that weighs heavily toward fair use. If no, fair use is difficult to argue.
This is where creators make their biggest mistakes. They think transformative means “I added something new,” like commentary or a new title. Actually, transformative means the purpose itself is different. A book review that quotes passages is transformative—you’re using text for critical purposes, not for entertainment. A reaction video where you watch a song and discuss it is usually not transformative—you’re using the song for its original entertainment purpose; you just added your voice over it.
The transformative test isn’t binary. Courts assess the degree of transformation. Some uses are clearly transformative (parodies, criticism, scholarship). Others are on a spectrum. A remix that takes a song and flips the genre isn’t the same as playing the original song with commentary. Both involve the original material, but one has greater transformation.
Why Platforms Don’t Wait For Fair Use Determinations
YouTube, Twitch, and other platforms don’t evaluate fair use when you upload content. They respond to copyright claims filed by rights holders. A rights holder sees your video using their material and requests takedown or Content ID claims. The platform removes it or restricts it to comply with DMCA law. This happens regardless of whether the use might qualify as fair use under a court analysis.
This is a gap in the system that frustrates creators. You might have a legitimate fair use defense, but platforms rarely investigate before complying with takedown requests. They have legal safe harbor if they respond to claims quickly; they face potential liability if they don’t respond. The economic incentive is to assume the claim is valid and remove content first, ask questions later.
YouTube’s disputed claims system allows creators to challenge claims they believe are improper. If you dispute a claim citing fair use, YouTube doesn’t evaluate fair use—it asks the claimant whether they want to withdraw the claim or uphold it. The claimant can uphold it, and YouTube removes the video. You can appeal the decision by filing a formal statement of fair use reasoning. But this still isn’t a real fair use determination; it’s YouTube deciding whether to take sides in a dispute.
This is why fair use is called an affirmative defense. You use material, face a claim, and then defend yourself (possibly in court) by explaining why fair use applies. It’s a legal defense you raise when accused, not a permission you get upfront.
Practical Steps to Minimize Fair Use Risk
If you’re creating reaction videos, commentary, or criticism that relies on copyrighted material, assess the four factors honestly. If your purpose is fundamentally different from the original material’s purpose, you have stronger fair use arguments. If your purpose is the same as the original (using a song for entertainment, showing a clip for comedy), fair use is much harder to argue.
Use the smallest amount of copyrighted material necessary to make your point. If commenting on 15 seconds of a song requires showing the entire 3-minute track, you’re using more than necessary. The unnecessary excess weighs against fair use.
Document your reasoning if you’re relying on fair use. If you receive a claim, your ability to explain why the use was fair and transformative helps when appealing or disputing. You won’t necessarily win, but you’ll have a coherent argument rather than panic.
Consider licensing material rather than relying on fair use defenses. If copyright holders offer reasonably-priced licenses, paying for permission is often simpler than gambling on fair use. The legal certainty is worth the cost.
Understand that fair use is not a rule you follow perfectly; it’s a legal defense you argue if challenged. This means any content relying on fair use carries some risk. If that risk isn’t acceptable for your channel, license material or create entirely original content instead.