COPYRIGHT


INTRODUCTION TO COPYRIGHT

The law of copyright exists to protect people’s creative endeavours so they can properly benefit from their work. If such protection didn’t exist and people were able to copy or sell or profit from another’s work, then there would be little incentive for people to create in the first place.

Copyright is the name for a collection of exclusive rights to do certain things with certain types of creative works. Virtually all creative works are protected, including: literary works (novels, newspaper articles, factual books, letters, computer programmes etc.); all kinds of musical works; dramatic works (stage plays, dance etc.); artistic works (paintings, photographs, sculpture etc.); sound recordings (CDs, tapes etc.); all types of films; broadcasts (there is separate copyright in a broadcast, in addition to any copyright in the creative content); cable programmes; and, published editions (the layout of a book or magazine).

The copyright owner has the exclusive right to do, and authorise others to do the following: copy the work, issue the work to the public, rent or lend copies of it, perform, show or play the work in public, broadcast it or include it in a cable programme service; and, make an adaptation of it or do any of the above in relation to an adaptation.

Copyright protection does not last indefinitely but it does last a long time e.g. in the case of a novel or a play, 70 years from the end of the calendar year in which the author dies. Most creative works, therefore, that you come across will be protected and the laws of copyright will restrict their use.

WHO OWNS COPYRIGHT?

Generally, the first owner of copyright is the author of the work unless he/she has created the work as part of his/her employment, in which the case the first owner of copyright will be the employer, which may be an individual or a company. In the case of a film, television programme or sound recording the first owner of copyright is generally deemed to be the person or entity that made the arrangements for the making of the film or recording. This is usually the producer or production company.

OBTAINING PERMISSION

If, therefore, you wish to include creative works of another in your film, you must obtain the consent of the copyright owner. This should normally be in writing so there is evidence of consent having been given.

The process of obtaining consent is often referred to as ‘clearance’ or ‘licensing’ and in most cases you will be asked to sign a licence agreement by the copyright owner. This is usually a one or two page document which sets out the terms of how the work in question can be used.

Copyright, like other property, can be bought and sold, so the person to contact regarding permission to use a particular work may not be the original author.

If someone else’s work is included in a documentary without the consent of the copyright owner, you will have infringed copyright. This is a serious matter and may lead to you being sued by the copyright owner. They could sue for damages (i.e. money); an account of profits (i.e. any profits arising from the infringement); an injunction (i.e. a court order prohibiting you from continuing to infringe copyright); and, delivery up (i.e. a court order forcing you to deliver all copies of the infringing work to the copyright owner).

There are a number of defences to an action for copyright infringement but most would not apply for works that were included without consent in a documentary. The important thing is that you either don’t include other people’s copyright works or, if you do, that you have the copyright owner’s permission.

INCIDENTAL INCLUSION

One defence, which can sometimes be of use in limited circumstances, is that of ‘incidental inclusion’. Copyright is not infringed by the incidental inclusion of a work in a film or sound recording. However, the question of what is incidental is open to a great deal of interpretation and argument and, certainly, if a work has been deliberately incorporated into a film, it’s very unlikely it’s inclusion would be held to be incidental.

The incidental inclusion rule is only really helpful in situations where there might be a very fleeting or partial glimpse of some copyright work e.g. a snippet of a programme on a television screen in the background of shot; a quick camera pan across a poster when filming in some teenager’s bedroom or a bill board on the street; or a brief or partial shot of a magazine cover, for example in a doctor’s waiting room where you are filming.

TYPES OF COPYRIGHT

So what types of copyright works might you encounter when filming and how do you avoid getting into a situation where you need to spend time licensing copyright works or, worse, you can’t use the footage you’ve shot because you’ve filmed someone else’s copyright work and you are unable to obtain permission to use it within your film?

1. MUSICAL WORKS

When filming, be conscious of any sounds in the background, particularly any music playing. Background music is often played in shops, restaurants and bars or, if when filming with someone in their car, may well be playing on the car radio.

If there is music playing in the background and it is captured on film, it is likely that it will need to be cleared for use within the film and you will have to pay for it. It will also involve spending time completing the necessary paperwork. There is also the possibility that it may be prohibitively expensive, in which case you won’t be able to use that footage. For these reasons, try to avoid filming in places where music is playing, unless of course you are only shooting pictures and intend to discard the audio track.

Similar considerations apply to any music added to the film during the edit. It needs to be properly cleared. Again, this can be expensive and time consuming so think carefully before deciding to go down this route. An alternative would be to incorporate music from the FourDocs rushes library when it launches later this year. This music has been pre-cleared for use so you can use any of it in accordance with the rules set out in that section.

Please note that if you do license a third party’s music for use in your film, we will require proof that it is cleared for an unlimited number of broadcasts world-wide. Proof must be in the form of a signed licence agreement scanned into a computer and uploaded to FourDocs in the copyright section of the legal checklist. Without such proof we will not be able to accept films that contain commercial music. Similarly, if music is commissioned specially for a film, or you are an aspiring composer and include any music that you’ve written yourself, we will require proof that you have the necessary clearances. Where you yourself are a composer and are the sole author of the musical work, we will require a sworn declaration from you that this is the case. Where music has been commissioned, proof must again be in the form of a signed licence agreement scanned into a computer and uploaded to FourDocs in the copyright section of the legal checklist.

2. ARTISTIC WORKS

Be careful not to film interviews and actuality next to artistic works such as paintings, photographs, posters, billboards, sculptures etc. Before filming, look closely at the location to see what, if any, copyright works might be in shot that might cause problems later.

For example, you might be filming in a bookstore and book covers are in view; in someone’s living room with a prominent movie poster on the wall; in a dentist’s waiting room with magazine covers visible on a side table; by a bus stop with advertisements stuck to it. Whenever possible, either move these items so they are out of shot or, if that’s not possible, shoot the interview in such a way as to minimise the copyright work in question being shown.

When shooting static interviews with contributors, this should not be a problem but when shooting actuality, you may have little or no control over the surroundings where you are filming. On such occasions, just try to have regard to your surroundings and shoot in such a way that minimises the inclusion of artistic works that may be caught on camera. As noted above, if the works are only shown fleetingly, their inclusion may be classed as incidental and they will not require clearance.

3. OTHER COPYRIGHT WORKS

The same principles apply to all other copyright works. Try to be conscious of what you are filming and whether there may be copyright in it. If a contributor reads or quotes from a book, newspaper or magazine, or sings or even hums a line from a song, the likelihood is it will need clearance before it can be included.

EXAMPLE

You are filming an interview with someone in their home. Look around you to assess what, if any, copyright works might be caught on camera. Is there music playing e.g. on the stereo, radio or television? If so, turn it off. Are there any prominent pictures, posters or photographs on the walls? If so, don’t shoot static interviews in such a way that the artistic work is in shot for any length of time. If the camera is moving around and the artistic work is only caught fleetingly or only part of the work is shown briefly then it is unlikely to require clearance.

SUMMARY

* If you include someone else's work within your film without the consent of the copyright owner, you are likely to have infringed copyright. This is a serious matter and could lead to you being sued.
* If you do include the creative works of others in your film, you need to obtain the consent of the copyright owner. This should normally be in writing so you have evidence of consent having been given. However, clearing copyright works is time-consuming and may be expensive. You will have to provide proof to FourDocs that the work is properly licensed.
* Wherever possible, avoid including other's copyright works within your film. Try to avoid locations where music is playing and be careful not to film interviews and actuality next to artistic works such as paintings, photographs, posters, billboards, sculptures etc.
* It is inevitable that in spite of your best efforts, some copyright works will be fleetingly caught on camera. In these cases, FourDocs may decide they can be included in your film without express consent from the copyright owner and broadcast because the work's inclusion is incidental. FourDoc's Editorial Checkers will decide when viewing your film. If there is any uncertainty regarding the inclusion of a particular work, we may need to seek further information from you or require you to remove the particular work before we can accept your film.