Can you recreate another YouTuber’s video, pictures or scenes (YouTuber Series)?

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YouTuber Law: Can you recreate another YouTuber’s video, pictures or scenes?

Lior Leser, Esq.
Technology, Internet and Software Law

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This is not a case of fair use. We are not speaking about actually copying another YouTuber’s video. We’re speaking about recreating the scene and the elements.

Casey Neistat is one of my favorite YouTubers. His content is creative and his film making skills are incredible. Many YouTubers have created great videos trying to dissect his techniques.

I remember watching Sara Dietschy’s vide on How To Casey Nesitat where she recreated different scenes based on Casey’s techniques.

In another video where Casey was speaking about Sara’s video he asks whether it is a copy or an emulation. Now … Casey enjoyed Sara’s video, but it raised a serious legal question.

When is a recreation a copy? When is it a copyright infringement to recreate?

To establish copyright infringement, we must first show illicit copying.”

The copying must be sufficiently extensive that it makes the two works ‘substantially similar.’

And that’s the legal key: Substantially Similar

But not all elements are equal. First we must look at the work being copied and determine which are original.

You see … An original and copyrighted work may nonetheless contain unoriginal elements.

We apply the concept of Substantial Similarity only to the Original elements inside the work.

Where the photographer is uninvolved in creating his subject, that subject matter—whether a person, a building, a landscape or something else—is equivalent to an idea that the law insists be freely available to everyone.

Alternatively, subject matter that the photographer did not create could be viewed as “facts” that, like ideas, are not entitled to copyright protection.

And what exactly is Substantially Similar. There is no precise definition. It is a holistic matter. It is what an ordinary person might think is similar.

So, if Casey frames a picture of a park in NY where the elements are of the park’s existing structures and nature, then while the video may not be copied, it can be recreated. Thats because the artist did not create the elements themselves.

But what if Casey then adds various elements. He places a skateboard in the corner. Asks a girl to hold a flower. Rearranges rocks in a particular shape. Then those are original elements.

It is those original elements (within the non-original scene) that may be subject to Copyright Infringement if recreated.

I know. It can get a little confusing.

Just remember. You can recreate naturally occurring scenes. But you cannot recreate artistic elements placed within the videos.

We will be happy to hear your thoughts

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