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SPI 703: How to Legally (and Genuinely) Use Other People’s Content in Your Own

If you’re a content creator who uses other’s copyrighted material in your own content — listen up.

Claiming fair use is not a magic wand you can wave to stop people from suing you. Even if you’re in the right, you can still get dragged into legal procedures that cost hundreds of thousands of dollars. So, how do you use copyrighted material in your content without getting in trouble?

That’s what we cover in this chat with the incredible Emily D. Baker. In session 621, we heard all about her successful law career and why she quit to become a full-time creator. (If you haven’t already, listen in on that hugely popular episode — in it, Emily shares the exact steps that led to her inspiring growth on YouTube!)

This conversation is now the go-to resource we point to for all things fair use. Tune in because Emily helps us understand the system and work within it to put ourselves in the safest position when using other people’s videos, photos, music, and more within our own content. We also dive into monetization when material you don’t own is involved and what to do when someone copies your original work.

If you’ve been following Emily, you know she puts a fun twist on topics that can often be dry or overwhelming. Join us for this awesome, educational, and crucial episode!

Today’s Guest

Emily D. Baker

Emily D. Baker is the internet’s go-to legal analyst and the top destination for live trial coverage. She’s a former Deputy District Attorney, a legal analyst, and the host of the top podcast The Emily Show.

With over 17 years as an attorney, Emily brings experience, compassion, and facts to the stories and cases she covers. She breaks down the legal side of pop culture events so that everyone understands the legal and the tea. Emily is a sought-after commentator and analyst who has been featured on ABC, Hulu, CourtTV, People, the Los Angeles Times, and more. Emily has created a unique and passionate community of Law Nerds who embrace the facts.

You’ll Learn


SPI 703: How to Legally (and Genuinely) Use Other People’s Content in Your Own

Emily D. Baker: What I want to make clear is fair use doesn’t mean you won’t have somebody reach out and try to strike a video, try to sue you. It puts you in a position to defend. And I’ve covered YouTubers getting sued over fair use. I’ve covered a YouTuber who won a fair use trial and that can still cost hundreds of thousands of dollars. So understanding that even if you’re in the right and fair use, it can still be quite an extensive process. It’s not a magic wand of, but it’s fair use.

Pat Flynn: You know, every once in a while, I bring on a lawyer here on the podcast. I’ve brought my own lawyers in and today I want to bring in another lawyer. Her name is Emily D. Baker. You might’ve heard her on the show before actually. She is an amazing person. She has a YouTube channel with nearly a million subscribers.

And when she goes live, I mean, she has literally hundreds of thousands of people who watch her while live, which is insane. And we do talk a little bit about that and what that’s like and how to manage community and all those kinds of things when you’re at that level. But more importantly for you, we’re going to be talking about fair use today. Now, what is that? Well, this is the whole thing related to, can you use somebody else’s copy or can you use somebody else’s image? Can you use somebody else’s video inside of your own content? And how do you do that? What are the rules? And we do a bunch of different scenarios that I am familiar with, and I know many of you have experienced or have questions about and we just ask Emily for some help and some thoughts and she gives us some very specific answers to help us through this because a lot of times our content can be enhanced by injecting other people’s stuff in it but how you do that really matters and how we stay out of trouble well that’s the whole point of this. So listen in to stay out of trouble.

This is Emily D. Baker. You can find her on YouTube. You can find her on, on, on Twitter, Instagram. She is amazing. And she and I have been friends for quite a while. I know you’re going to enjoy this episode. So here she is, Emily D. Baker.

Announcer: You’re listening to the Smart Passive Income Podcast, a proud member of the Entrepreneur Podcast Network, a show that’s all about working hard now, so you can sit back and reap the benefits later. And now your host, he still owns the stuffed animal he was given the day he was born, a smurf. Pat Flynn.

Pat Flynn: Emily, welcome back to Smart Passive Income and hanging out with me again. I appreciate you.

Emily D. Baker: I’m so happy to be back. I always love having a conversation. I appreciate you for having me back. So let’s, let’s talk all the things we have so much to talk about.

Pat Flynn: We do. And it’s about a very specific topic. If y’all want to listen to Emily in the last episode, which was 621, talk about her amazing journey. Quitting being a lawyer now full-time, like literally full-time content creator.

Live streamer on YouTube. Absolutely massive. Like how big is like, tell me gimme some numbers about where you’re at now as far as size and community and, and kind of how it’s going on YouTube.

Emily D. Baker: Our community’s thriving. We are over 717,000 subscribers on YouTube, but the thing I’m most proud of is our live streams are regularly between 10,000 and 15,000.

And then if I’m live streaming a trial, I was the number one trial live streams on YouTube for the entire trial with Gwyneth Paltrow. So I’ve become the number one destination to watch live trials, and that’s been really a lot of fun. And streaming live trials all relies on understanding fair use and copyright and using court streams and using feeds.

And so I’ve become well and familiar with it, but our live streams have just been really a lot of fun and really thrilling. And our community is such a positive community. It’s really stunning to see 50, 000 people in a chat being kind to one another and just having a conversation and not name calling it.

And, and especially with a figure like Gwyneth Paltrow, who’s rather polarizing on the internet, it’s really nice to see people just be able to talk about the case. It’s, it’s incredible. And I’m still stunned that it happens. This is, I’m living my best lawyer life.

Pat Flynn: That’s so amazing. 50,000 people live.

Emily D. Baker: Like that is, that’s not my top live stream. That’s our like average trial stream.

Pat Flynn: What was your top?

Emily D. Baker: 370,000.

Pat Flynn: Oh my gosh, what? That’s like countries watching you like oh my gosh, like, i’m starting to get teary eyed because I can’t even like what’s going through your head. But okay, we’re here to talk about like fair use and all that kind of stuff which is yeah, I mean you make everything exciting that is that that was once boring, but, like, what’s going through your head when you see that many people literally watching you?

What’s the pressure like? How do you manage that?

Emily D. Baker: I don’t treat it much differently than when I first started streaming and I had 10 people watching. Or, or 50. It’s just more people to include in the conversation. But we have great moderators. We have really strong community guidelines. And we have a strong existing community that welcomes people into the fold and they’re like, Hey, this is what we do here.

I mean, when you get up into the hundreds of thousands of people in the chat, it gets really hard to see the chat, but it can be a really positive experience. I try not to think about how many people that is because I can’t physically wrap my head around that many humans, but it’s really exciting to do what I love doing with that many people.

So whether it’s 10, 000 or a hundred thousand, it’s, it doesn’t. Pressure wise, it doesn’t feel much different. It’s funny when people I really respect and admire reach out and are like, oh, I saw your stream on this. I’m like, you did? Was I okay? That feels more pressure when I see familiar names that I’ve been watching on YouTube in the chat or traditional celebrities reach out to me and DMs on Instagram and are like, I really liked your coverage of this.

That makes me a little more nervous and always reminds me you never know who’s watching. I’ve had witnesses that testified reach out and say, Hey, I appreciate that you were fair to me when I testified. I was really nervous. Or the lawyers reach out after I’ve given commentary saying, Hey, I’m willing to talk to you because you were fair in your commentary about me.

And, My mom liked your content, so I felt like if my mom gave you the thumbs up, then it’s okay to have a conversation with you.

Pat Flynn: Dude, that is so cool. Like, who’s the most surprising person to sort of reach out to you?

Emily D. Baker: Oh, well, I’ve gotten to know a number of the Real Housewives because I talk about a lot of Real Housewives cases and then traditional celebrities, you know, retweeting stuff that I’m covering like Courtney Love.

I grew up in the 90s, so I almost fell out of my chair when Courtney Love is retweeting something that I’m talking about with regard to Ticketmaster over on, on Twitter and things like that are just, they just knock me over sideways. But the first time iJustine popped up in the chat, I almost stopped talking.

I was like, you’re making me nervous being in the chat. So it really is the YouTubers that always kind of get me, but you never know who’s watching when you chat on the internet. And, and it’s always a good reminder too, that when you’re doing coverage, like I do of lawyers and court cases, really the people’s moms are watching, so it really informs my coverage that these are all people that we’re talking about and keeping it to, Oh, my God, you can’t turn your mic on and not making personal attacks and talking about the questions or the objections really keeps it fair. We don’t talk about people. We talk about what they’re doing. And that’s something that makes me feel good about the content that I create.

Pat Flynn: Oh, man. Well, congratulations to you. For anybody who’s now very curious about your channel, who maybe didn’t hear you in the last episode, where can they go to see like all the stuff that’s going on?

Emily D. Baker: I’m at the Emily D. Baker all over. So if you put in Emily D. Baker, you will find me on YouTube. I do live trial coverage. And I also do Just breakdowns of court cases and make the law more interesting and I cover everything from disputes over caterpillar cakes in the UK to some of the more serious cases that have come up in the US in the last few years, including things like the Debbie Heard trial and the Gwyneth Paltrow trial, but also Murdoch and Tom Girardi, lawyers who are stealing from really vulnerable clients.

So we cover a bit of everything, but I love pop culture. So. It’s pop culture legal coverage.

Pat Flynn: Yeah. Speaking of making things that aren’t necessarily interesting way more interesting, that’s we’re about to do that with fair use. So I’ve been teaching a lot of people YouTube and people have been asking me for years and I never know how to really answer this question.

So I’m hoping that at this point forward in this conversation, we have now a resource that we can offer to people. And I know it’s not even necessarily black and white always either, which makes it fun and interesting, but I want to offer you different scenarios and then have you tell me like what is okay and maybe what’s not okay based on a lot of the questions that I get.

But again, this is all surrounding this thing called fair use. What, what is this term that we hear about that gets thrown around? What is it? And why should we care?

Emily D. Baker: Absolutely. So when we’re talking about fair use, we’re talking about a copyright infringement. So somebody owns the copyright in a thing and you are saying no, even though you own a copyright, if that’s the argument, even though you own a copyright, I’m allowed to do what I’m doing under the doctrine of fair use, which allows for an exception or a defense in copyright. What I want to make clear at the beginning of this is fair use doesn’t mean you won’t have somebody reach out and try to strike a video, try to sue you. It puts you in a position to defend and I’ve covered YouTubers getting sued over fair use. I’ve covered a YouTuber who won a fair use trial and that can still cost hundreds of thousands of dollars. So understanding that even if you’re in the right and fair use, it can still be quite an extensive process.

It’s not a magic wand of, but it’s fair use. The other thing that’s tremendously frustrating about fair use is the lawyer answer that I hate the most, it depends. There are four factors with fair use, and every judge has their own tolerance and kind of threshold for these four factors, so they’re weighing it.

It’s really very, very subjective, and there’s a Supreme Court case that we’re waiting on a decision on regarding Andy Warhol and Prince, or The Artist Formerly Known as Prince, and we’re gonna see if this analysis changes a little bit. So we can talk about that scenario a little bit later, but art and fair use and copyright and what transforms art and what is enough comes up in a lot of context.

And on YouTube, it comes up in a ton of context. Like, what about music? What about reading a book? What if somebody takes a photograph and then tattoos it? Kat Von D actually got sued over that by the photographer who took the photograph that she then tattooed on somebody. So, oh, geez. Right. Because the photographer owns the rights to the photograph and is taking a photograph and directly recreating it in a tattoo transformative or is it just copying?

And these are the types of questions that lawyers go round and round on. Some of them won’t come up for YouTubers and people doing content creation, but some of them will.

Pat Flynn: Let me ask you a question, Emily. As a person who’s a creator in this space, and speaking on behalf of those who want to create more, this sounds scary, right?

Anybody can sue a creator for anything, saying that something was theirs, and then go through this legal trouble, and it could cost hundreds of thousands of dollars, perhaps, and there are people who are throwing their weight around, or targeting the small guy or gal, because they have something similar, and they’re just kind of bullying.

Why still do it? Why create? Why, why still put yourself out there despite those risks?

Emily D. Baker: Creating is always risky. You never know what’s going to happen, but it’s incredible. The community you can build through creating is so tremendously powerful. Look, I get copyright claims on my channel fairly regularly and end up disputing those and you can dispute them.

I’ve never had one that has gone badly when I’ve disputed it. They’ve all gone in my favor because I am in the best position to explain what I’m doing and why it’s fair use, but I’m also not doing things that really aren’t proper uses of content. I’m not restreaming movies or music or music videos and things like that.

So there, it gets a little tricky when you’re dealing with particularly music because the music industry locks down their rights so much. But even if you’re using content that might be someone else’s copyrighted content for a fair use purpose, the things that most commonly happen on YouTube is the video can’t be monetized or the monetization goes to, you know, the person who wrote the song.

I don’t have a problem with those things because those are other creators, too. I mean, sometimes the companies in the music industry that are doing these things are really just large licensing houses, but that aside, at the end of the day, they’re trying to protect the rights of other creators, and I’m okay with working within that structure.

So it’s worth it to understand it and make sure that what you’re creating is also uniquely yours and you’re using copyrighted works to accent your work. You’re not using it to completely be your work. You’re not just reuploading somebody else’s stuff. And this gets really a little gray zoned in like the gaming space because, technically, streaming a video game is using somebody else’s copyright, but most of the gaming houses have exceptions within their terms of use about streaming gaming content. But sometimes that goes badly too. We’ve seen creators get struck using gaming music, mostly.

Pat Flynn: You also reminded me about the Ed Sheeran and Marvin Gaye case that’s happening right now as well.

It’s in trial right now. Yeah. Are you covering that? Because I’m curious about that.

Emily D. Baker: I’m going to be covering it once it is over because it’s mid trial and it’s, it’s not streaming, so I have to wait for reporting to come out, but yes, I’m going to be breaking it down afterwards. And we’ve covered this with Taylor Swift.

Ed Sheeran’s been in a number of copyright disputes. I love copyright music cases because we learn so much and sometimes you listen to the music and you’re like, okay, but come on. And sometimes you’re like, well, but how many chord progressions are there in the world truly when you’re looking at creating music.

And that’s something interesting. And I look to music channels, like Rick Beato’s channel. He covers music and breaks down songs and plays it on his channel. And all of those are transformative. A lot of his videos, I would imagine can’t be monetized because of that. But if you have a strong community as a creator, It almost doesn’t matter if the video itself has ad revenue on it, because as a creator, you can be compensated so many other ways, which is exactly what you teach people to do.

Pat Flynn: Okay. Scenario. I am a creator. I want to, as a YouTuber, there’s a clip from another YouTube video that I want to include in mine to talk about. Is that okay? Oftentimes, I get Pat, how many seconds am I allowed? To put that video into my video. Can you talk about the nuances of that and what is okay and what is not based on fair use?

Emily D. Baker: Absolutely. So I think what would be helpful is to go through what the courts look at, which is a four part fair use analysis. And I promise this won’t be boring. I mean, it’ll be quick. We’ll, we’ll move through it quickly. Clock how many seconds this is? I will. The purpose and character of the use. Why are you using the thing?

So how are you using the thing is the first thing courts will look at. What are the purposes? Is it educational? Is it commercial? Are you taking the My Humps song from the Black Eyed Peas and turning it into a commercial for Poopsie Slime Surprise? If you are, you’re probably going to end up in a copyright suit that’s going on right now.

The nature of the copyrighted work is what kind of copyrighted work is it? Mostly we’re talking about video, audio, music, and that kind of stuff. The amount or portion of the work you’re using in relation to the whole work. So if it is a two hour video and you’re using 30 seconds of it, it’s very different than using 30 seconds of a 60 second video.

So the amount of time doesn’t really matter, but the portion of the entire work that you’re using matters. And then the effect it has on the potential market. So does what you’re creating mean that people won’t go look at the other thing? So if you’re doing something like news reporting or commentary and you’re like, you know, Hey, this YouTuber said this about that, or even in the, my kid is watching tons of chess creators.

And so they’ll show a clip of whatever game or, or stream that they’re looking at and be like, Oh, this person played this and they’re explaining it and using a portion of the game. A viewer really might want to go see that whole video. You’re not going to substitute that entire video. But if you directly reupload somebody else’s content, which is happening a ton in the short space, if you’re just reuploading somebody’s entire video, you’re substituting the original.

And then that’s a huge problem because that’s not going to pass this analysis that the courts go through. So how long depends on how you’re using it. And, and what the total work is that you’re using.

Pat Flynn: Gotcha. What if I am sharing something and I want to share an opinion that may not align with that thing?

It could potentially have an effect on the market because I’m sharing my own opinion about perhaps my use of that product or what that person just said. And I want to, I want to share my point of view. Oftentimes I have a desire to do that, but then I don’t want to a ruffle feathers, but B, get in trouble because I’m perhaps going to slander or affect their business in some way, even though it’s just my opinion.

Emily D. Baker: Sharing a genuinely held opinion isn’t going to really come into play in the potential market or value of the copyrighted work because you’re not using all of the copyrighted work. If you’re if you’re taking all of their work so that somebody wouldn’t need to go see the original work, that’s more what the courts are looking at.

But you’re allowed to give critical commentary. It’s interesting because this has started coming up in like the reviews and people have been sued over Yelp reviews that are largely opinion, but sometimes very negative. A negative opinion is not defamation. It’s not slander, but a negative opinion can impact the marketplace, but that’s not really going to change the fair use.

If you’re only using, you know a one minute clip out of a 30 minute video saying, Hey, I don’t agree with this. When we’re talking about a particular topic, that’s different. Critical commentary is okay.

Pat Flynn: What about the creator who is in the arts and they’re they’re reviewing perhaps a video or a movie, right?

I’ve watched a lot of people so I got really involved with The Last of Us my wife and I loved loved it. And now she has this crush on Pedro Pascal. But anyway.

Emily D. Baker: Everyone has a crush on Pedro.

Pat Flynn: I have a, he’s daddy Pascal. Like I like, you know what I’m saying?

Emily D. Baker: Did you see him the hot wings?

Pat Flynn: Oh, yeah Yeah, yeah, that was good.

So funny. That was good. So How does one offer commentary on, like, an episode where they’re showing, like, basically most of the video is clips from the thing that they’re reviewing. Yes, they’re adding commentary, but it’s like, like, 100% of the video is basically showing the different parts that this person is now analyzing in that video, like, that, I mean, it seems to be okay with heavy spoilers, just the, the channel that I watch.

I religiously watch that after an episode comes out. I want to see his opinion on it. But the entire thing is clips from the episode that just came out and like a meme or two in the middle of it.

Emily D. Baker: But you just broke down why it’s different saying I want to watch the episode and then I want to see his opinion on it because if you want to watch the whole episode, you’re not going to go to his channel to watch the whole episode because it’s going to be interrupted by somebody talking.

So it transforms the work because there’s times when I’m doing live trial commentary, people will see that I’m number one on live trending and pop in for trial coverage, and they’re like, oh, my God, why are you talking? I’m like, no, that’s what we do here. If you want to watch this trial without commentary, these are the other places to go watch it without commentary.

What I am offering is very different than watching a trial without commentary. So, watching an episode chopped up with commentary in between is much different than somebody airing the entire episode and at the end being like, oh, did you see this Easter egg? We’re done. So, how it’s done also matters You as a consumer, like no, I want to see both.

And what I get from the commentary is different because I love this too. I watch a lot of especially with the Mandalorian. I love watching all the Easter eggs because I can’t remember everything. And it’s like, oh, that does tie back to this. And that ties back to that. But they use a ton of clips.

Monetization on those things is a different conversation. But that’s a transformative work where it’s clipped down and sometimes the studios will fight you on it and will copy claim it and you have to defend that and YouTube actually has a really good process to allow you to defend it, but it can also be frustrating because YouTube is required by law to allow people to make copy claims and there are those that can abuse the system, but that’s not the most common and prevalent.

It’s maybe the most complained about, but it is not the most common and prevalent.

Pat Flynn: I just thought of another use case involving a YouTube video. Let’s say you create a YouTube video, and you’re teaching something, and I create a course, and your video would make sense to put in my course, because that particular lesson that I’m doing, like, you say it better than anybody.

Am I allowed to, in a course that I sell, Inject a YouTube video, or would I get in trouble for that?

Emily D. Baker: That becomes a bit different, because if you’re just injecting the entirety of a video, you’re now using it for commercial purposes, and if you haven’t licensed that copyrighted work, that becomes a bigger problem.

Because you’re using it, you’re essentially selling someone else’s copyrighted work. Think of what would happen if that was a TV episode or a movie or a song you’d end up in kind of a Napster situation where you’re like, Oh, I’m taking this thing and reuploading it to make it available. Even if it’s free, it’s somebody else’s copyright without licensing.

That can be a problem. Though, a lot of creators, because I’ve had, I’ve had networks reach out to me and be like, Hey, we want to use a clip of this video in a documentary or have you. I don’t generally have a problem licensing those things. I want to know what it’s being used for, but reaching out to say, Hey, I want to do this gives an opportunity for collaboration or licensing agreements.

Pat Flynn: Would just permission from the owner be enough?

Emily D. Baker: Permission from the owner would be enough because it’s the owner who would be the one saying take it down or don’t take it down. You have to know that the owner holds the copyright, so you have to know who owns the copyright. This, Pat, can I tell you a story?

This came up during Depp V Heard in a really crazy way, so there was a video that had been leaked to TMZ during the height of Johnny Depp and Amber Heards divorce. It had largely been believed that Amber Heard either sold the video or gave the video to TMZ. When the video played in court, TMZ copy claimed my video of the court feed because that video was in evidence.

How would TMZ own the copyright in it if the copy holder, which is the person who filmed it, Amber Heard, hadn’t given it to them? So I ended up being able to say, Hey! How does TMZ think they own the rights to this if it was not either given to them or sold to them? That ended up coming up weeks later in trial that TMZ actually did get it from Amber Heard, the rights holder.

But I was able to go on to Twitter and be like, Isn’t it interesting that TMZ says they own the rights to this when Amber Heard said she never gave this to anyone? How are they asserting copyright over a video that they didn’t take? So it was, they got owned by their own copy claim. I, I was absolutely excited.

That’s so perfect. It is because all the creators they could have claimed, claimed the lawyer. It’s fantastic because I’m like, this is the best content ever. Yes. Oh, that is a great story. Off of this is fantastic, but. It’s really interesting to see who copy claims things and sometimes on YouTube, especially when it’s an automatic process, sometimes it’s third parties doing it.

Don’t be afraid of copy claims. They don’t always strike your channel. You can work with those and don’t let that keep you from creating. I did a sponsorship that asked me to use clips of videos because it was for a streaming service and their copyright agency copy claimed my video when it was a permission given paid sponsorship in the video.

So these things can happen where accidents happen within the copy claiming system.

Pat Flynn: As far as permission is concerned, is an email just enough? Is that, is that enough to work off of or should there be a contract in place for things like that?

Emily D. Baker: I love a licensing agreement and I realize that’s not always practical.

But reaching out to someone making sure it’s their email address saying, Hey, I want to use this in this way. Do you own the copyrights in this video? Can I use it in this way? Do you give me permission for that? And they email it back, puts you in the best position to defend if you’re not going to draw up a simple licensing agreement.

Cause a lot of what we do in the online space, even appearing on a podcast, technically you could have licensing agreements to be like, yes, I give you the, you know, rights to my likeness to publish this and et cetera, et cetera, but it’s not always done in the space because generally once somebody’s sitting down and they’ve agreed to be on a podcast, they’ve agreed that it can be shared and distributed.

So there’s kind of best practices. And lawyer is like a licensing agreement would be great. But depending on the formality of the use, an email can still go into court. And they regularly do. Just remember when you’re writing those emails, lawyers someday might be reading them on the internet. Hi, I’m lawyers.

I love emails. The amount of emails that end up in lawsuits are fantastic. And sometimes you’re like, Oh, they said that they put that writing. Great.

Pat Flynn: I love your take from an artist’s perspective and where we’re at with things like AI right now and, and, and Midjourney. And I mean, there’s, this is the topic that is hot right now that everybody’s talking about in, in, in especially the art community.

I would love your perspective on the, if I create something or if I have a particular style that I’ve developed for years of something and a person can just plug and play into a bot of sort and create something very similar that apparently, you know, takes inspiration, if you will, from the style that I’ve developed over the years, I mean, I empathize for these creators who now are getting taken over by robots and things like that.

Like, where do we even begin with, with understanding what is right and what is not right. I mean, it’s just it feels like the Wild, Wild West right now.

Emily D. Baker: It is the Wild, Wild West right now, which will be interesting because the Supreme Court is taking up the Warhol case, which is a transformative use case.

The photographer is suing saying I took this photo of Prince, and then Andy Warhol painted it. Is that transformative use because that’s my photograph. So does the painting of the photograph change the photograph enough that it transforms those copyrights into Andy Warhol’s copyrights? And this is what’s going on with AI to its analogous, then the law really uses a lot of analogies is what was this in the past?

What is this going forward in the future? And how does it apply? Who owns the copyrights to these things is going to be fought out in the courts. And Musical artists are concerned about it. I think the music industry might end up driving some of this with AI because if you can just plug into AI Britney Spears is voice and have her singing Christina Aguilera’s music or something.

Where do we go from there? Because Britain hasn’t licensed her voice to do that. The, the people who wrote the other music haven’t licensed the rights to use it, but then who do you sue if it’s AI created? Do you sue the people who created the, you can’t sue the AI. So, right. It’s not a person. Exactly. So these, these are things that are coming up in a lot of different contexts from the visual arts to video editing.

If you put a video into AI and have it edit the video, Do you have the copyrights to that video? Has it been transformed by the editing? And then we’re also seeing this, unfortunately, in the deep fake space where particularly female content creators are getting deep faked into adult content that is being sold on the internet and it’s not them.

And so they would generally own the rights to their likeness. And now people are able to take their likeness and use them in different ways. And this is going to extend into the film industry is when people are signing contracts, and we’ve seen this in Star Wars a lot where people’s likenesses are being regenerated for movies, who is signing away the rights to that?

How long are you signing away the rights to that? Are people just taking your voice off the internet and allowed to use it in AI? Where do you own the rights to your voice and your likeness and your image? Where does AI own the rights to a song that it might write or, or musical chords and who owns those rights?

So there’s, there’s a lot of questions here that the law is going to have to grapple with, and I think it’s going to be frustrating before it gets better, and it’s, it really is the Wild West for creators, but it’s the same if you ask ChatGPT to write a novel, and it plagiarizes parts of something else, what do you do with that?

And then does it violate Terms of Use to just turn around and sell that. But then, is ChatGPT going to enforce the violation of Terms of Use? I don’t

Pat Flynn: know. We’re in a Black Mirror episode.

Emily D. Baker: We really, we live in strange times, but as a lawyer, I find it kind of fascinating because there are new problems to tackle with kind of old tools.

So it’s how do you make these old analysis and how do you apply that analysis to something new? There had been an AI artist signed by Capital Records and it was who is owning the rights to this artist and then who’s profiting from the rights with this artist and what about the music they write and is all the music being generated by AI because it was scraping TikTok for the things that were most popular and finding the commonalities and songs that had gone viral on TikTok and mashing that up into music.

It was really, really interesting the AI, that’s fascinating, had like a hundred million followers or something on TikTok and signed with Capitol Records and then the entire thing blew up and it was a mess, but it was still Capitol Records was trying to sign an AI artist and the argument from the music industry was, is this their way of getting around artists pay, not paying a musician. That you can morph someone into any kind of skin that you want them to be any age, any gender, any features. And they’ve got no old tweets that are going to come up and cancel them in 15 years. And they’re not going to, you know, go out and get a DUI or do whatever else because they’re AI. So is that, is that a safer bet for the record industry who wants to turn a profit and doesn’t necessarily want to take a gamble on artists?

And I think it’s up for us as an audience to say, no, I want to go to live music. I want to go see artists. I don’t just want a, a cute 30 second video on TikTok. I want real music with soul.

Pat Flynn: Yeah. It’s wild. My mind is, my mind is blown.

Emily D. Baker: These are the things that I think about a lot. I I’ve been covering more and more AI stuff when it comes up with copyright.

Cause I cover copyright a lot, but there’s copyright lawsuits and trademark lawsuits going on right now, kind of in the, in the vicinity of fair use between crumble cookies and dirty dough cookies and who owns the right to the box design that you put the cookies in and can multiple cookie sellers rotate their menu every week and post similar pictures on Instagram.

When is it infringing on rights and when is it just like, oh, that’s a good idea. Now we’re all gonna do it. Dirty dough argued, you know, most people put a pizza in a, in a, you know, in a square pizza box. It’s the same with cookies, like the cookies go in a bakery box. It’s not that unique that you can own the rights in a cookie box.

Pat Flynn: So I didn’t even know that was going on. And we have, we have a crumble cookie pretty close to us.

Emily D. Baker: The Utah cookie wars have popped off in a kind of spectacular fashion with that. But it’s what’s unique work, and what’s not unique work? And I think with fair use, at least it’s a little easier to tell what’s unique.

Somebody’s YouTube video is unique. Your podcast is unique and you own the copyrights and those things as you should. And there’s a boundary there for creators too to really try to make their own work that’s enhanced by someone else’s work versus taking someone else’s work and just duping it. We see that a lot on YouTube, right?

With thumbnails. You see one thumbnail that does really well, and then there’s a hundred different iterations of that thumbnail. Yeah, yeah. When is it copyright infringement, and when is it not? And on YouTube, people don’t really push back all that much on it, though I think somebody could in the future.

Pat Flynn: Where does the line between inspiration and, and just straight up copying exist? You know, cause I go to other YouTube channels and I get inspired by their thumbnails and I get inspired by the framework and the sort of three acts in their videos and I, and then I apply it to, to Pokemon, for example. How does one safely get inspiration from others?

Emily D. Baker: And you can’t copyright just an idea, right? And you can’t really copyright a story arc. Story arcs are part of, just part of how you tell a story. A three-part story arc is not copyrightable. So when we’re talking about fair use, taking inspiration, and copying are different. Direct copying is taking somebody’s exact thumbnail and maybe changing out a face that might not be enough to be transformative, but taking a thumbnail and being like, Oh, I really like that it has the text on the left and it has kind of ombre colors that go across the back and I’m using different colors is a bit different. But some of this is a gray zone. And how close to the line creators get is one of the things we’re seeing a lot on YouTube, because, you know, the second somebody like Mr. Beast puts out a video, there’s a million different copycats of it. Ryan Trahan did the How Far Can I Get on a Penny series, and then other people were copying that. But some of those ideas are not copyrightable. The words in the videos are, but not the ideas behind them. I think the most powerful way to be a creator, though, is to take that inspiration and make it your own.

I get inspired by other creators all the time in all different kinds of genres. Like, oh, I like how they did that. I like their lighting. I like the arm they use for their podcasting mic. But it doesn’t change my content, it enhances my content because the best way to stand out really as a creator is to be yourself, right?

Pat Flynn: I was at a YouTube workshop last week with Daryl Leaves and one of the students, her name is Jenny She’s 17 years old and has a million subscribers on YouTube, she’s doing wonderful, that’s incredible, it is and she was showing us a video that she created a really amazing hook for and then told the story and it looped really well and then she showed us a another creator who literally jacked her exact same video not necessarily word for word, but it included a grandma like her grandma was in it It was a 1 Starbucks versus like a 5 Starbucks thing and it was basically the same video.

Does she have any right to go and say stop or don’t do that or, or, you know, it was a different person, it was a different like, location, it was a different grandma, but the story was basically I mean, it was the same. And it was a blatant and obvious copy, but it also had millions of views and I’m almost like, I feel like those views were stolen, even though they weren’t.

It kind of feels that way, like they don’t, they, they don’t deserve that because they just copied Jenny and, and Jenny, you know, needs the credit for this because it was her idea. I, like, I, I get upset when I think about that kind of stuff sometimes.

Emily D. Baker: And this happens, oh, and TikTok as well, right? One person choreographs a dance on TikTok and choreography can be copyrighted.

So somebody choreographs a dance on TikTok and then another creator takes it and then that’s the video that goes viral, even though that choreography was directly copied from the original creator. The, the difference between enforceability and the propriety of that enforceability are difficult because going through a multi year civil litigation is just not practical for most creators.

For some, it is. Some creators are like, you know what? I have the money. I’m putting my foot down. Forget it. But the, the difficulty in the creator space is if you reach out to another creator that you don’t know and say, Hey, You really did directly rip off my video. The chances of that email then becoming content is also very high.

So the analysis of getting into drama over it versus continuing to keep moving and letting other creators point out that it’s been stolen. Is different and it’s really a frustrating thing, but yes, videos can be copyrighted. Ideas can’t be copyrighted. So the idea to have like a 1 Starbucks challenge versus a 20 Starbucks challenge can’t really be copyrighted, but the language within the video can, and people tend to tweak that just a little bit. I would say for the creator that’s coming up with those ideas, they get to have a long career not always chasing what somebody else is doing. They get to lead from the front. And that’s really what a lot of creators need to lean into, is leading from the front, because you’ll build your community.

I can’t imagine having a million subs at 17. I mean, at 17, I was trying to figure out how to like pluck my eyebrows and like… you know, make myself dinner. I can’t imagine it.

Pat Flynn: She’s really smart. She’s, she’s doing like finances for kids and teens. And one of her videos is like 55 million views as well.

So I had a video series on my Pokemon channel, for example, which was innovative. It was unique. It was new. It was trying to complete a set of Pokemon cards within a certain period of time, 24 hours or 48 hours. And those things went viral. And I’ve been, you know, putting more videos into that bucket. And of course the other creators in the space see that.

And then all of a sudden, you know, exactly. And within the span of like two weeks, four creators created the, basically the exact same video and me and my producer, Dan, we didn’t get upset. I mean, I, I know better and it could have been very easy for me. I mean, the, the younger Pat would have, you know, Gone on the defense and put these guys on blast, but a couple of them asked for permission, which was nice, even though they didn’t need to necessarily do that because they did kind of change it a little bit, but it was basically the same.

But Dan and I watched them all and we were like, this, these are just, I mean, I don’t want to be offensive or anything, but they’re just reproductions of the thing that you created, right? They’re not original at all. So there was nothing to worry about because of that. Right. And this also pushed me and Dan to go, okay, yeah.

Like they’ve caught up to our uniqueness now, like we got to innovate again and we got to keep invent reinventing the wheel here. And that’s what people are expecting. So, you know, not that we were resting on our laurels with this very successful bucket, but it was a good reminder to, okay, like people are getting in on this bucket.

Now we need to invent some new buckets here. And I think generally, that’s kind of like what you were saying, like you want to lead instead of follow.

Emily D. Baker: I can’t imagine a creator career where you’re just like, Oh, let me skim the internet to find good ideas and wake up every day having to go find what somebody else has created and then try to make it your own instead of waking up and being like, this is what I’m talking about today, this is what I’m doing, this is my idea. There’s a satisfaction to bringing that into being. I think as again, as you’re building a community, they’re not looking for Knockoff Pat, they’re looking for Pat, they’re looking for your voice, your ideas, your video, and so where creators need to spend their time and energy, in my opinion, Is in being the best version of them so they can bring that to their community and that’s what drives their community. I talk about the same lawsuits that a lot of people do and if I go find something that’s quirky that other people haven’t covered yet they’re going to cover it, but I realized this somewhere after the first year of my channel blowing up and I was going live, if something would drop a new filing, I was like, oh, we’re missing dinner tonight, we’re going live, and I got very tired.

It can be, the, the news cycle can be very fast and trying to keep up with it is not always easy. And I realized that my audience didn’t really necessarily care about hearing the story from me first. They wanted to hear my take on it from me. And so even if I covered it a day later, two days later, a week later, they were like, Oh my God, I saw so and so talk about this, but I wanted to see what you said.

And building that community that wants to come back for you. Means it doesn’t really matter if people try to copy your thumbnail or your story arc because your community and your audience is coming back from you or for you, it doesn’t make it less frustrating, but it’s going to happen in the space.

Pat Flynn: Even more of a case for building a community is for that exact reason alone, because people are going to come and they’re going to copy, but your community will always be there for you and they’ll defend you as well.

I mean, that was the one thing about my videos that got copied, like, yeah. Many of the comments were like, Oh, you’re just jacking this off to Pat now. That’s okay on Pat’s channel. Yeah. Which is, which is interesting. And, and I want to be in the space to encourage these new creators to create. And, and I’m grateful that we’re almost pushing them to create, but I want them to go even further. And, you know, anyway.

Emily D. Baker: I think you touched on what the trap is. And I think the trap for newer creators particularly can be a, Oh, I know this will get views, but that’s not, it’s proven to work, the focus. Yes. Thank you. The focus shouldn’t be on, Oh, I know this will get views because if those viewers don’t come back, it’s ultimately going to tank your channel because your other things aren’t going to get views.

If you build your channel around your content and then maybe look at what is a trending topic and doing it in completely your own way and say, Hey, I saw this video on Pat’s channel and I was super inspired to see if I could try it my own way. So this is how I’m doing it. There’s a more respect there, but also you’re not just grabbing something that the audience isn’t going to come back for.

If you’re really trying to build a sustainable channel, then just trying to get those quick views isn’t going to build in that longevity and sustainability in a creator career. It’s just not going to do it. Yeah, amen to that. But you can see my focus. My focus is immunity. I really. Because I talk about the same thing that the, the news talks about, right?

People Magazine might cover it faster than me because they’re People Magazine. But my audience, even if they’ve already heard the story, wants to hear me talk about it. And that’s, that’s what kind of keeps it going. And that also gave me a lot of freedom on… I don’t have to be first with everything because I can’t, I’m a media company of like five, not 5,000 or 50,000.

But also that allows me to be more nimble and more flexible than a lot of bigger media companies. So it’s great.

Pat Flynn: I want to go back to something you mentioned earlier. We’re almost done here. But you had mentioned that when you’re covering these trials, they are oftentimes streaming and you’re just kind of watching them with your audience.

And you’re not using clips. It’s the actual thing that is the full body of work. How are you able to do that?

Emily D. Baker: Here’s what I love about court feeds is when you look at how the court has allowed pool feeds because these are news pool feeds. So they are one camera. The cameras are generally owned by Court TV, and the courts generally have a court order that allows Court TV to distribute them to any other network that wants it.

So during the Gwyneth Paltrow trial, Court TV had their cameras in the courtroom, and then E and everyone else was streaming it to their channels using the same feed from Court TV. So those feeds are copyright free and there are some things in the news that are copyright free. And so covering streaming trials means understanding or for me going to the court orders and looking at who’s covering it and how.

But because I’ve also done commentary on Court TV, I’ve been building a relationship with them as well. So I am actually working on just getting my own feeds. So I’m not refeeding them from somebody else’s channel because I would like to have a bit more control.

Pat Flynn: When you say that, do you mean like you’d have your own camera people there?

Emily D. Baker: You can’t have your own camera people there, but you can grab the pool feeds. I will talk to you more about that offline, but you can, you can grab the pool feeds. How I am doing that is proprietary, but gotcha, okay, you can and most people don’t do it because it is it’s not easy and you can just restream it from Court TV stream.

They don’t own the copyright in it either. You’re not allowed to have your own cameras in court. The courts generally order Court TV is the only cameras in court, but everyone else Get access to that feed through Court TV. Sometimes it’s other people’s cameras, and then you have to work with that network to get access to their pool feeds.

But that is a whole, this is how news does this with feeds where cameras are limited. This is very common in courts. It’s one camera is allowed, and that’s because you can’t have You know, every single outlet that wants it sitting there with a camera person in court. That’s too distracting. Gotcha. So courts are very specific.

Pat Flynn: Okay. Well, that makes sense. What if Pokemon, for example, was live streaming a tournament and I wanted to go live and, you know, I basically just pull it up on my stream from Pokemon’s YouTube channel. And then I just talk about it. I know a lot of people in the space industry, for example, show NASA’s or SpaceX’s live feed and then, you know, they’re up behind a green screen.

So you see their face in the corner and they’re watching the literal stream to see if the Starship is going to blow up or not and land on the moon and all this kind of stuff, right? Are there special licenses there or is that? It seems based on your first answer that, that something would have to exist to allow you to do that.

I can’t just go and put Pokemon stream on my channel and just comment on it.

Emily D. Baker: It depends on whose it is, right? And this, we see this in the video gaming space. Minecraft is like, look, if you want to play our game and stream it, even though that’s their copyrighted work. They don’t get into anyone about it.

I covered this with Bungie’s game Destiny. There was a huge copyright fluff up with Destiny, and that was actually somebody abusing the YouTube copyright system. If you want to understand copyright abuse, go watch my Bungie coverage, because their lawyers laid it out really well on how this went wrong in their lawsuit, because it actually hurt their community.

But as their terms of use for their game, they allow people to restream it and you don’t have to ask for permission and they don’t strike it. It’s kind of a live and let live. So it really depends on whose feed it is and what their tolerance is. You’re a big enough creator in the space that if you wanted to reach out, I’m sure you could say, Hey, I want to share this, I’m giving commentary on it, is that going to be a problem? But also if you’re changing the content by giving commentary, if they did copyright claim it, you could push back on that and say, no, I’m giving commentary on this. This is fair use giving commentary on this stream. It depends on the type of stream though, because some streams, if you started streaming music videos, YouTube will take your stream offline.

They have automatic systems to find that music, and your stream can go down midstream. Ask me how I found that out. I was thinking about a music video, and I pulled up the music video to make the joke about the music video. My stream got cut in the middle. I was like, I wasn’t going to play the whole thing.

All right.

Pat Flynn: Yeah, those, those automated systems definitely are in the works. I would not be allowed to stream a UFC fight that is behind a paywall.

Emily D. Baker: Behind a paywall, that would be very difficult. There are still a bunch of ongoing lawsuits from, I believe it was a Jake Paul or Logan Paul fight the H3 podcast got sued over this and others and they were showing clips of the fight after the fight even though the fight have been paywalled and the clips were already on Twitter. So there’s a really interesting fight in federal court over that. Oh, wow, interesting. And a fight over those who restreamed it.

So there’s two copyright fights going on there because If you’re showing the results of a fight four days later, you’re not really taking away the market for that work. It’s already out there, it’s already on Twitter, the market is kind of done, the event has already happened. If you’re taking a paywalled event and streaming it for free on YouTube, then you’re going to have a large fair use problem and get sued. And they sued. Oh, interesting. I think there were 30 plus people that got sued over that fight.

Pat Flynn: If I am at a live event that I had to pay to get into, am I allowed to live stream from the event and just, you know, be like, Hey guys, I’m here, check it out. I want to show you around.

Emily D. Baker: It becomes a little trickier depending on what the event is. If you wanted to live stream the entirety of like a Taylor Swift concert, it’s probably going to get taken down. But if you’re live streaming walking around Pokemon Go Community Day. That’s not going to be a problem, paid event, and you’re walking around in public places.

So that also copyright aside, that will start getting into filming in private places versus public places. And some other things, unfortunately, with a lot of this, it depends and law is very fact specific. The thing I tell my consulting clients and the thing that I remind creators of is you want to put yourself in the best position to defend looking to kind of find a loophole in the system often doesn’t go well look to understand it’s like taxes look to understand what the system is and see how you can work within it and I think there’s a lot of room to work within the copyright system and use things that are otherwise copyrighted in a legal way, but also understand that doesn’t prevent you from getting sued over it. It does not stop that from happening. Most people will reach out and either copy claim a video, send a cease and desist. Normally, there’s some warning, but not always, because sometimes, especially if it’s another creator, people can be petty.

For sure. And people get mad. People get mad over stuff. When you use their work or you use their art, and if you’re just re uploading it, people get mad about that. I don’t let people fully reupload my videos. Those are my videos. Don’t just reupload my video. But if people clip down, you know, Emily’s top 10 moments from the Depp V Heard case, or every time I said a lawyer’s name, that’s transformed my work and clipped it down into something different.

I’m not going to have a problem with that, but that’s me as a creator. I’m not everyone. And different creators have different temperaments for that, too, though I think clip channels are probably do fall within fair use in most circumstances. Yeah.

Pat Flynn: Daily dose of internet is one that I’m just like, how is this guy doing this?

And, you know, I don’t know if he’s experiencing demonetization on most of them because they’re clips from other places, but even if one or two videos go through, he’s still doing pretty well, I’m sure.

Emily D. Baker: And monetization becomes a big consideration on the YouTube platform is what can be used as fair use and what can be monetized sometimes are two different things.

A lot of the Depp V Heard trial was not monetized for me based on the language that was being used in court. And I use curse words on YouTube. Like you can use curse words on YouTube. Some of the words being used in that particular trial based on really unadmirable text messages are using words that are completely verboten on YouTube.

So a lot of that trial is demonetized even though it has a ton of views.

Pat Flynn: Everybody’s got to go to your YouTube channel. Check it out. Follow along. Your community is amazing. And I’m just so in awe of what you’ve done and proud of you and inspired. So Emily, thank you so, so much for being here and helping us out today.

If you want to give people one more time, the link to where they should go to follow you, feel free to drop it.

Emily D. Baker: Absolutely. I’m at the Emily D. Baker all over the internet. I’ve got your pop culture legal needs covered. Come hang out and tell me that you came from this podcast in the comments, please. I would love to see it and I’ll come in and say hi.

Pat Flynn: Thank you, Emily. I love you so much. Thank you so much for coming on. Appreciate you.

Alright, I hope you enjoyed that episode with Emily. Emily, thank you so much for coming in today and talking about fair use and creating just an entertaining episode around stuff that usually is so boring or people just even are afraid of and want to just avoid.

So again, thank you so much. Be sure to check out Emily on YouTube, Emily D. Baker, whatever is happening in the world of pop culture today with relation to the legal system you can usually find her talking about that and going live in front of again, thousands, tens of thousands, hundreds of thousands of people all at once.

And she and her community are a force of nature and just absolutely awesome. So again, Emily, thank you so much. And thank you for listening in. If you want to get the links and everything we mentioned today, Again, Good stuff. Thank you so much. I love these episodes where we bring on an expert and just kind of just jam into these things so, so usefully. So again, Emily, thank you.

And look forward to serving you in the next episode. In fact, we have one coming up very soon, so make sure you hit that subscribe button if you haven’t already. And I’ll see you then. Cheers. Peace out. And as always, Team Flynn for the win.

Thank you so much for listening to the Smart Passive Income podcast at I’m your host, Pat Flynn. Sound editing by Duncan Brown. Our senior producer is David Grabowski, and our executive producer is Matt Gartland. The Smart Passive Income Podcast is a production of SPI Media, and a proud member of the Entrepreneur Podcast Network. Catch you next week!

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