Footage/Images for Independent Documentary

[deathproof101]

Good Morning,

I apologise in advanced if this is a covered topic. For peace of mind, I hope to receive feedback regarding an upcoming documentary project.

We are in the process of putting together a full length documentary on a 1980s punk band from the UK. While a lot of the content will be primary interviews and archive images/footage provided by the band themselves, we hope to incorporate plenty of old news footage, television adverts and photographs. Much of the bands material and story revolves around the political and social upheaval of Britain from the late 70's to modern day.

The film has no backing from a production company and will be subject to a crowdfunding campaign at the end of the year in an attempt to cover the post-production costs, travel expenses, stock footage and film festivals submissions. If we are lucky and have a good campaign, we are looking to aim for around £10,000. Obviously, this is relatively small fry but we are hesitant to over stretch at this point.

My initial research has found that using such sites as getty images massively blows our potential budget. I'm seeing some single images of obscure public figures hitting anywhere from around 500-1000 pounds. The miners strike plays a big part of the story and I'm seeing quotes for up to £4,000 for 40 seconds of news footage. We want to be above board as much as possible from a legal stand point as we want to be open to the possibility of the film getting distribution in the future.

So, I guess what I'm asking is, where do we stand? Does some come under fair use but not others? Is it right that such images and videos should be commanding such fees? Are 30+ year old television adverts still under copyright? What happens if we can't pin down the owner?

Again, apologies if this is a common question, and if some of the questions seem amateur in nature. This is the first time we have tried something of this size and just want to ensure we do not hit any issues down the road.

Thank you.

[AndyJ]

Hi deathproof,

Lots of points to cover here. I am assuming from what you have said about the project and the sorts of sources you would like to use, that you are based in the UK. If this is correct, then it is better not to use the term 'fair use' since this specifically refers to a doctrine within the US legal system (and some other jurisdictions around the world). It is very much broader and more flexible than the exceptions to be found in UK law which are known as fair dealing. A similar set of fairly narrow exceptions also apply within EU law (although not referred to as ‘fair dealing’) from which most of the UK's exceptions are derived.

Fair dealing may possibly be an option for certain items you would like to include. There is one specific category which may be of use in this context: Section 30 fair dealing for the purposes of criticism, review or quotation. It is also worth mentioning at this point that Section 31 concerning the incidental inclusion of copyright material may just possibly also be applicable for some video etc, but note the specific stipulation in sub-section 31(3) concerning music and songs:

A musical work, words spoken or sung with music, or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

To give an example of when the incidental inclusion exception can be of help, say one of your contributors was being interviewed on camera and it so happened that there was a painting by Picasso hanging on the wall behind him. As long as the painting had not been deliberately placed in shot, and Picasso’s work had no connection with the subject matter being discussed, then there would probably be no infringement of Picasso’s copyright.

To return to section 30, it is important to stress that with the first two elements, criticism or review, this must be of another copyright work, and not some general criticism of, say, social conditions at the time. And in all three categories, ie criticism, review or quotation, the source work must be credited. This could be with a caption onscreen while the clip or still image is visible, or with a credit at the end of the film. Lastly here, a word about the quotation part of Section 30. This has only been added fairly recently and we don’t yet know how broad an interpretation will be allowed by the courts. The quotation doesn’t need to be for the purposes of criticism or review, but almost certainly it should conform to the normal dictionary definition of quotation, that is words written or spoken by someone, and not just an excuse to include a clip of a band playing at a concert, for instance. Whether it could be used to justify, for instance, showing a picture of the front page of the Daily Mail with a prominent headline you wished to use, or whether you would need to just flash up the actual words of the headline, is something we just don’t know at this stage. With all fair dealing, it is important that no more of the film clip or still image etc is used than is strictly necessary for the purpose of its inclusion. So including 40 seconds of the Clash playing at a gig just to pad out the film would probably not constitute fair dealing, whereas using the clip to show the audience’s violent behaviour, may well validate the use as fair dealing.

To give you a flavour of how the courts tend to treat fair dealing of the sort you may wish to call on, take a look at these cases: Fraser-Wooward v BBC & Brighter Pictures, Pro Sieben Media A.G. v Carlton Television Ltd and Sony/ATV Music Publishing LLC v WPMC Ltd. The first two cases are from a time before the new exception for quotation was available. The last one is probably most relevant to your situation, but although it was heard in a UK court, it is largely concerned with the application of US Fair Use law, so care needs to be exercised in drawing conclusions from the results.

As for your other points, I can’t really comment on whether it is right that images and videos from the libraries and picture agencies should command such high fees – that would appear to be normal market forces at work. If no-one was prepared to pay the fees they would probably come down to a more acceptable level. My advice would be to shop around among the smaller agencies for general stock footage etc. And yes, even 30+ year old television adverts are still in copyright. If you find a clip or still image etc you would like to use, but can’t identify or locate the copyright owner, you could consider using the Orphan Works licensing scheme run by the Intellectual Property Office. You will need to demonstrate that you have conducted an extensive and diligent, but ultimately unsuccessful, search for the current copyright owner, before they will grant you a licence.

[deathproof101]

Thank you very much, Andy. A very thorough and helpful reply.