Q: RE: Comedians Intellectual Property. Assume I produce YouTube videos as tributes to specific comedians and their content
Does the attribution to the original comedian overcome copyright? And, would the answer be different if the videos were free to the public versus being included in a fee based subscription?
No, attribution is not a defense to copyright infringement. Fair use might be a defense. Section 107 of the U.S. Copyright Act provides for certain cases where permission from the rights holder is not required. Courts assess whether the "fair use" defense applies based on four factors: the purpose of the use, the nature of copyrighted work, the amount of the work being used, and the effect of the use on the market for the copyrighted work. Another, more detailed statement of the factor test: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work.
Making the videos free to the public might be a factor in your favor under part (1) of the fair use test, but your claim has to be evaluated on all the facts to responsibly assess your potential exposure to a law suit. Fair use is based on case precedents. An IP attorney will research proposed fair uses from previous cases similar to yours, to assess whether your use would fall under similar exceptions to infringement. Your attorney may also advise you on how different options of creating your material might make it more or less likely to fall under the fair use exception.
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