How Do I Word a Copyright Disclaimer for YouTube?

Dear Rich: I've seen a lot of different statements posted by people at YouTube so they won't get sued over copyright infringement. What is the best thing to write to prevent getting sued? These statements -- known in legal parlance as "disclaimers" --  are intended to prevent (or at least limit) copyright infringement claims. The most common of the half-million disclaimers used at YouTube is apparently "No Copyright Intended" which -- despite its ambiguous meaning -- is about as effective as going 90 MPH in your car with a sign that says "No Speeding Intended." Other disclaimers state that the user is claiming fair use. Unfortunately, claiming fair use doesn't mean that the work qualifies as a fair use. Only a court can determine that. In truth, we don't believe that there is really any disclaimer (scroll to bottom of page) that would be effective in preventing a lawsuit if your video infringes someone else's work.
So what do you say? Knowing that disclaimers won't prevent a lawsuit, you might be able to limit damages in a lawsuit by stating something to the effect of "No copyright is claimed in [content copied] and to the extent that material may appear to be infringed, I assert that such alleged infringement is permissible under fair use principles in U.S. copyright laws. If you believe material has been used in an unauthorized manner, please contact the poster." Don't expect this to do much --  most copyright owners will bypass this and have it removed under a DMCA notice -- but it may set a more sympathetic tone for you as a defendant if you find yourself responding to a lawsuit.

Should I Make Disclaimer When I File TM Application?

Dear Rich: I am applying for a trademark and I had a question. I want to use my trademark for a website for people who own daycare businesses. (I already have the domain name.) The trademark has the word "DayCare" in it and I know that I can't trademark that part of the name. Should I make a statement giving up rights to "Daycare" under the "additional statement" section. What do you think? You're correct that nobody who runs a daycare business can claim trademark rights to the word "daycare" -- it is a generic term for  businesses that care for kids. So most people who include it in their trademarks will have to disclaim it. As a general rule, most trademark attorneys would probably take the position that it's best not to disclaim anything unless asked to do so by a trademark examiner. The reasons for this blanket rule: (1) you can't always predict what the examiner will ask you to disclaim -- for example, though it's highly likely you'll be asked to disclaim the term, there's always the possibility that the examiner may not ask for it because you are providing online services (and not daycare services), (2) adding a disclaimer later won't derail your application (though it will slow the process), and (3) by taking the initiative yourself, you may mistakenly disclaim an essential element of your mark.
That Said Dept. That said, if you're certain that an examiner will ask you to make the disclaimer -- for example, your competitors have been asked to make similar statements in their applications (you can review all existing applications and registrations online) -- and you're in a hurry to get your registration, then make the disclaimer at the time you file the application. (The intake box is shown below).