San Juan Capistrano, CA asked in Copyright for California

Q: Is blurring a watermark on a video clip a direction violation of copyright law or is it legal?

We own a list channel on YouTube, we make videos such as “7 Biggest Houses in the World” everything is under fair use (we have a voiceover over the clips and we use minimal footage as possible) and sometimes there are watermarks on video clips, are we allowed to blur the watermarks on the clip? I know for a fact that cropping a watermark is a direct violation of copyright law, as stated on “Section 1202 of the U.S. Copyright Act” but what about blurring a watermark? One of my competitors that has 3 million subs on YouTube and he always blurs watermarks on video clips, really confused on if blurring a watermark is a direct violation of copyright law or if it’s ok to do and legal? Take a look at this video: if you go to 2:27 - 2:29 of the video, they’re blurring the watermark on the video clip and they do this for every video, so is this legal? Because news channels do that as well where they blur watermarks on video clips.

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1 Lawyer Answer
Bernard Samuel Klosowski
Bernard Samuel Klosowski
  • Intellectual Property Lawyer
  • Greenville, SC

A: The questions are very fact specific, so an IP attorney should be consulted for legal advice.

Generally speaking, it's not uncommon to confuse or conflate copyright "Fair Use" and trademark "Fair Use" and to misunderstand the role and limits of "Fair Use."

"Fair use" of copyrighted material occurs when limited amounts of copyrighted material are used for criticism, comment, news reporting, teaching, scholarship, and research pursuant to 17 USC 107.

"Fair use" of trademarks is similar to copyright but a bit trickier. There's "classic" fair use, which occurs when a primary descriptive meaning of a trademark is used to refer to another party's goods or services (e.g., Apple Inc. the iPhone company can't stop "Joe's Apple Stand" from selling fruit). Then there's "nominative" fair use, which often occurs when someone else’s trademark is used to refer to the mark owner’s goods or services; i.e., in comparative advertising: "Buy our Ford trucks - they get better gas mileage than Chevrolet trucks."

But "Fair Use" under both copyright and trademark law is only a DEFENSE to an infringement accusation - it can't PREVENT another party from filing a lawsuit if that party believes that its intellectual property has been infringed. (Of course, if an IP owner sends a demand letter before filing suit, a response might point to "fair use" to try to dissuade the other party from filing suit in the first place.)

Turning back to the described scenario, 17 USC 1202 states in part that "copyright management information" cannot be altered or removed, and defines that information in part (c). Basically, it's unlawful to remove copyright identifying information from material.

Rather than blurring copyright identifying information, the video appears to show that part of a mark "TA400" is blurred around 2:25. Yet, the "TA400" mark is unedited in other parts of the video, which suggests that the 2:25 snippet might have been edited by someone else for some other reason in an earlier use before it was compiled in this video or it is just a fluke (otherwise, at least for consistency it seems that the compiler would have blurred the other instances of the mark in other frames of the video). In any case, the blurring at 2:25 seems to be dealing with a mark and not 17 USC 1202(c).

Again, a specific consultation with an IP attorney would be prudent.

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