Whether it’s text, images, audio or video, any third-party materials used in your stream are potentially subject to copyright. Although copyrights are not always consistently enforced by their owners, using third party materials in your stream puts your channel at risk of muting, takedowns and even lawsuits.
Using copyrighted materials in your stream may be copyright infringement unless one of the following applies:
- you have permission from the copyright owner;
- the work is in the public domain; or
- your use of the material falls under the doctrine of fair use.
Specific Examples of Third-party Material
When streaming a video game, you are typically creating a derivative from another copyrighted work, the video game. This means that in principle, without a license from the publisher or game developer, streaming can constitute a copyright infringement.
Game developers are adjusting their legal policies to balance their interests in monetization of content with facilitating viewership and creativity. Some end-user license agreements (“EULA”) explicitly permit streaming. For example, the EULA for Fantastic Contraption by Radial Games states:
2.2 Streaming and Social Media License. You may publicly display the Game on online video streaming websites, such as www.youtube.com and www.twitch.com, and social media, such as tweeting a GIF, on a commercial or noncommercial basis but cannot display the game through any other medium without first obtaining Radial’s written consent. [...]
If such a clause is not present, it can often be worth it to seek clarification from the publisher in case such a clause is not present. If no clause is present and no permission is granted, the streamer will have to rely on much more uncertain (and potentially expensive) legal arguments, such as fair use.
Live Music Performance & Creation
When you create original content or perform original songs, you own the copyright! Thus, feel free to broadcast yourself doing this!
To broadcast a cover of a song, you must obtain a mechanical license from the copyright holder that allows you to post the music and an accompanying video.
Technically, a song’s copyright owner must give you a mechanical license if you pay a royalty fee based on the estimated revenue from your cover song and you can obtain a mechanical license through the Harry Fox Agency.
Streaming yourself mixing and playing music created by musicians other than yourself may make your content liable to a DMCA takedown notice and may make you liable to a claim from the copyright owner.
The underlying music, including samples, will be subject to the service provider’s audio recognition system.
Playing music in your video or stream
Put simply, if you have music playing in the background of your stream there is a good chance that it is copyrighted and your content is liable to a DMCA takedown request and may make you liable to a claim from the copyright owner.
This applies to background music from the radio, from a playlist you have created, from Spotify, etc.
Fan Art / Reproductions
Fan art and/or copies of another piece of art typically involves derivative creations of others’ copyrighted content, and this may be subject to DMCA takedown by the rights holder.
Note that some broadcasts may be permitted by license, fair use, or otherwise under the law.
Permission (lawyers will typically call it a license) can take many different forms. You can request this permission from the copyright owner (or their representative), who may request compensation for the use of the work. The owner of a copyright might be hard or even impossible to track down. In such cases, copyright law still applies, and the best path forward may be to find another work to use.
The best kind of permission or license is an actual written licensing agreement between you and the copyright owner (or their representative) giving you a license to use the work in exactly the way you’re using it.
How to obtain permission from the copyright holder
The following gives an overview of how to obtain permission from a copyright owner to use their work:
- Find the email address or contact information of any copyright owner, and contact them.
- Write an email, clearly explaining that you’d like to use the work in your video or broadcast.
- Save any response you receive, as you may need to show this in the future to prove the copyright owner permitted you to publish the stream.
Public Domain and Fair Use
You may be able to use certain third-party content in your videos or streams if the content is in the public domain, or if your use constitutes fair use. See Basics of public domain and fair use.