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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
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Experience:  Licensed Texas General Practice Attorney
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I have a video that I created that pokes fun of the show Duck

Resolved Question:

I have a video that I created that pokes fun of the show Duck Dynasty. In the video you see pictures of the cast from the show, and there are also some pictures of some of their merchandise that Walmart sells. If I post this on YouTube will it be taken down?
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  Robert McEwen, Esq. replied 10 months ago.

Robert McEwen, Esq. :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

Robert McEwen, Esq. :

It could be taken down (the producers could file a "DMCA" (Digital Millennium Copyright Act) request to remove copyrighted materials. YouTube does not HAVE to post any videos or creative works, being a private company, and can restrict content from being used. As for being infringing, to the extent that the use is satire, comment, criticism, etc... it would probably be considered "fair use", and therefore not infringing.

Robert McEwen, Esq. :

In short, fair use is a limitation on copyright, a defense to infringement. Here's the law:


17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:



  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.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Robert McEwen, Esq. :

Typically satire falls into criticism or comment, and certainly if it is criticism itself then that could be used.

Robert McEwen, Esq. :

So I doubt that this could even be infringement in the first place, and I doubt that the producers would spend time and effort trying to sue you personally. But a DMCA request is easy (merely having to contact YouTube, assert that they are the owners and that the use is unauthorized). So while you almost certainly would not get in "trouble", there's a fair to good chance that YouTube would still take it down, depending on how much of the work is used AND whether the producers would find out about the work AND whether they would care to send said DMCA notice.

Robert McEwen, Esq. :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate this answer either a 3, 4, or 5 (good or better). Please note that I do not get any credit for this answer unless and until you rate it that way. Thank you, XXXXX XXXXX good luck to you!

Customer:

To follow up I just want to clarify. The video is 4 min long, for about 15 seconds we list a few of the merchandised items from the show while showing a photo of each of them(Duck Dynasty Lunchbox, Duck Dynasty Underwear, etc..) We then spend the rest of the time talking about items that "should" be added to their line. Each of these products we made up but to give them an "authentic" look we added their picture/logo to our items. Would this still fall under the DMCA?

Robert McEwen, Esq. :

To the extent that you use copyrighted material (i.e. Logos, pictures, video, etc...) it could easily fall within DMCA.

Robert McEwen, Esq. :

Again, fair use would likely say that this is not infringement, but because fair use is a defense in a legal action for copyright infringement, that would be beyond the situation where YouTube takes a video down for a DMCA notice.

Robert McEwen, Esq. :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Robert McEwen, Esq. :

Did you have any other questions before you rate this answer?

Robert McEwen, Esq. :

Are you there? Please note that I am still here, awaiting your response.

Robert McEwen, Esq. :

Should I continue to await your response, or may I assist the other customers that are waiting?

Robert McEwen, Esq. :

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~30 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable. If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Robert McEwen, Esq., Lawyer
Satisfied Customers: 11485
Experience: Licensed Texas General Practice Attorney
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