I know copyright / author's rights definition. I read bunch of texts about them and I am also aware that, for example, there are a kind of tolerance on YouTube about uses of copyrighted media (ex: songs' covers, remixes...) but even if they are tolerated, it is still not legal. But Youtube is a platform for sharing.

My question is : What about personal use of a copyrighted media ?

I searched on Internet but it is always about diffusion of such content, not personal use. In the strict aspect of law, would I be allowed to, for example, remix copyrighted songs just for my own usage, listening to them in my headphones ?

My first opinion would be no, as a copyrighted media covers :

  • the right to reproduce the copyrighted work
  • the right to prepare derivative works based upon the work
  • the right to distribute copies of the work to the public
  • the right to perform the copyrighted work publicly
  • the right to display the copyrighted work publicly

It would be creating a derivative work of a copyrighted media, so it would be infringement, right ? Also, using a copyrighted music to put it on my vacation videos and showing it to my family only would be, law speaking, a copyright infringement, right ?

If that so, are every people drawing famous characters or playing famous music songs on their instrument, for training or just for fun, without any public diffusion, doing copyright infringement ?

By extension, are those doing public diffusion (ex: artists doing fanart of a video game character which is copyrighted) also doing copyright infringement ? Or is it considered as fair use ?

I got a bit lost when a friend ask me questions about that aspect of law.

Thanks !

  • I suggest clicking the fair-use tag and looking at the Wiki entry, which directs you to two canonical answers. As you presumably know, illegally copying material without permission is still illegal even if just for personal use. You don't specify whether you mean "assuming I have a legal copy to start with". You can probably get away with making a derivative work for your own use, or performing a song in front of a few friends. Is that the question you're asking?
    – user6726
    Jun 3 '16 at 15:23
  • Thanks for the wiki, it was very informative. I am in fact asking for a confirmation : Copyright infringements aren't only a question of sharing or not, but are in fact very common and even done without knowing it, right ? If I take a sheet of paper and draw Mickey Mouse, I am infringing Walt Disney's copyright, is that so ? But if I do it for learning, then it would be fair use. If it is to sell shirts, I can get sued. If I own a music CD, I can listen to it but not make a derivative work. If I use it to show my holidays to my family, I guess it would be illegal but yet tolerated, right ?
    – RynnHeldeD
    Jun 3 '16 at 16:15
  • The illegality of "showing" is about public places and explicitly excludes family and friends, so it's not even illegal. Making a derivative work for your own entertainment is covered by fair use. Since "fair use" can only be determined post hoc after a trial, you can't know in advance whether such a use is "legal". An attorney can give you an expert estimate as to the probability of a bad outcome -- it would certainly include analysis of litigation history of specific plaintiffs, like Disney.
    – user6726
    Jun 3 '16 at 16:59
  • Oh alright, seems clearer now. So then, I could for example play with musics assuming I have a legal copy to start with, remix them and show them to just a few friends and family like "Listen to what I mixed!", that would be fair use. Same for creating a little video with Rocky song (legally acquired) as long as it is for private performance in the family. But as soon as it is shared to a bigger audience not family related, then it requires proper licences. So what about users uploading copyrighted musics on Youtube (with sometimes 1M+ views)? Just tolerance? Too much content to check?
    – RynnHeldeD
    Jun 3 '16 at 17:26
  • 1
    "are every people drawing famous characters or playing famous music songs on their instrument, for training or just for fun ... doing copyright infringement" - Yes, they are, but what you describe sounds like fair use. No one will dare sue you for playing along with music on the radio in your own home, for example, although it is an infringement.
    – Brandin
    Dec 6 '17 at 23:03

Fair Use is what is called an "Active Defense" meaning that as a defendant in a copyright suit, you can use Fair Use as a defense, but it will not be assumed unless you specifically say such. To that end, fair use boils down to several factors of your work, such as the nature of your use of the derivative work (who did you show it to and for what purposes), the damage to the original copyright (usually monetary damages, but reputation damages or brand damage as well), and the derivative nature of the work (how is the message of the original work changed by your addition). Note that Quality of the work is never in question.

  • I'm not familiar with the term "active defense". Do you have it confused with "affirmative defense"? Oct 27 '20 at 4:16

There is not a per se exclusion from copyright for personal use. Many instances of personal use are indeed fair use, but this is not categorically true.

For example, if you went to a preview of a major motion picture, covertly and without permission made a copy of the movie, and then only watched it yourself, you would also certainly be violating copyright law.

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