By David Llewellyn
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20th October 2017

Guest Blog – Fair Dealing

It's a week since the Iris Prize Producers Forum, sponsored by Capital Law. Here, Capital's media expert Fiona Peet explains how filmmakers can use the "fair dealing" defence to include archive clips in their films.

Filmmakers often wonder whether or not they’re allowed to use archive clips from films or television, and if so whether or not they have to pay for them. The laws regarding use of clips are – as you might imagine – fairly complex – but as long as the material is used in a certain way, filmmakers can feature copywritten material in their film without getting permission from, or paying, the copyright owner. These uses are:

  • to report current events
  • for criticism or review
  • to use a quotation
  • for caricature, parody, or pastiche.

These are set out in the Copyright, Designs and Patents Act 1998, as amended by Copyright Related Rights Regulations 2003, and the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014.

Here, we’ll look at including audio-visual extracts in film, under the ‘quotation’ defence.

A quotation from a piece of audio-visual material is known as a ‘clip’. It is commonplace, particularly in documentary filmmaking, to use a range of clips from existing tv shows, films, adverts, and music videos.

To minimise the risk of an Intellectual Property infringement claim, all filmmakers should bear the following points in mind – to make sure the fair use defence is issued effectively.

The size/duration of the clip

This should be short snippets. In other words, the clip shouldn’t feature a substantial part of the work, nor should clips be too frequently used.

Although there are no clearly set limits on how short/long the clips can be, you’re only allowed to use a ‘fair amount’. Err on the side of caution, and use a short extract. Consider whether using the work in the film competes with the original work, and could reduce its value.

Purpose

If you want to rely on fair dealing, the editorial purpose behind the inclusion of the clip must be clear to the audience. You can’t use fair dealing as a cost-saving measure. You need to contextualise and editorially justify your clip, and you must do so adequately. Anyone viewing your film needs to be clear where it’s from, and why you’re using it.

Prior publication

Make sure that whatever you’re using has been published before. And, you’ll need to accompany the clip you’re using with sufficient acknowledgement. So, if you’re featuring an advert, for example, you need to reference the advertising agency and the production company behind the work. If you’re featuring an online clip, you must reference the creator and the clip’s original name.

Source

If you’re going to use copyright material, you should get hold of it in a fair way – and not in any way that’s unlawful, or devious. If you’ve already got a licence, or are discussing a licence, you might not be able to rely on fair dealing as a reason for using it.

Finally, you don’t have to inform the owner before transmission. It’s not necessarily a good idea to inform the copyright owner, as this could result in lengthy legal challenges, even when the law is on your side.

For more information on fair dealing or any other film-related queries, please get in touch with us at Capital Law. Our dedicated media and IP team would be delighted to help.

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