second hand footage

D

dilby

Member
Hi all -

I'm currently in planning stages of a documentary and researching feasibility. I need some footage of a sports event, but the rights holder wants to charge an absolute fortune for the rights to use it. I seem to remember from my uni days that you can use footage if it was second hand footage, so for example , recorded off the television. Is that still the case? Or are there other ways around it?

Thanks!
 
You'd have to make it work under "fair use". You probably will have to ask a lawyer to make sure exactly what that means in your case.
 
Very specific criteria for fair use. You do need to hire a lawyer and get a sign off from a reputable entertainment law attorney. Remember, anyone can sue anyone for anything, assuming you are in the U.S.? You also may need to modify or make concessions based upon a potential buyer or distributor
 
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Shooting a tv playing the footage is not safe, even if it is playing in the background of a shot. You should check with the teams, for the last at least 20-30 years most major college and profession teams shot video for analysis after the game, before that you might still find them using film. The licensing for these recordings might be much more reasonable than a professional broadcaster would charge.
 
There's no second-hand exemption from licensing, at least not in the US.

Trying to claim fair use depends on your use. Here's a really good (and groundbreaking) approach that has buy-in from leading E&O insurers and lawyers who work with copyright issues. Great background, reasonable limits. Not too long:

Documentary Filmmakers’ Statement of Best Practices in Fair Use
http://cmsimpact.org/code/documentary-filmmakers-statement-of-best-practices-in-fair-use/

That's probably all you need to figure out if your intended use has ANY shot at being covered by an insurer (and thus you'd have some protection, could get the film broadcast, etc). Yes, a lawyer will have to be involved. But the closer your use appears to be covered by those best practices, the greater the chance that a lawyer will sign off...

For more background on fair use, check out Rich Stim's book "Getting Permission." Here's a big excerpt (and perhaps the entire section of the book...I can't recall) that discusses fair use. More background info, but good stuff too:
http://fairuse.stanford.edu/overview/fair-use/

There's also Donaldson's and Callif's book, Copyright & Clearance. A very useful resource.
http://www.donaldsoncallif.com/clearance-and-copyright-4th-edition-has-arrived/

But start with the best practices statement (the first link)....that'll help you figure out if you need to get a license, search for alternative footage, or if you might be able to make a case for fair use.

Oh: also note that certain rights holders fight back on fair use claims... That doesn't mean you can't claim fair use, but it may mean that your insurance might cost more. The rights holders make lots of money from licensing and are motivated to ensure that money flow isn't threatened. The International Olympic Committee comes to mind...

Good luck!
 
dilby said:
Hi all -

I'm currently in planning stages of a documentary and researching feasibility. I need some footage of a sports event, but the rights holder wants to charge an absolute fortune for the rights to use it. I seem to remember from my uni days that you can use footage if it was second hand footage, so for example , recorded off the television. Is that still the case? Or are there other ways around it?

Thanks!
Click to expand...

My understanding, at least with the major sports leagues and rights holders, it doesn't matter who shot/recorded it, THEY(the league) still own the rights to the footage.
 
If the rights holder has already been approached and it's too expensive, have you not shot yourself in the foot? If you source any footage that is clearly the same person/organisation's property, they'll sue you - you admitted you knew it was theirs and is second hand footage, just footage from a third party?

Sounds very risky to me!
 
I'd try a creative reenactment - a voice over play-by-play that isn't the exact copy of the historical call but similar enough for people to understand the reference.

Of course, if you need the visuals, you'd have to pay.
 
dilby said:
I seem to remember from my uni day...
Click to expand...

Hey Dilby, are you from the UK or some other commonwealth country? That's where people I hear use "uni" come from.

Anyway, if you are, the links I listed might be mainly background research. The "Best Practices" document is still worth reading, but in commonwealth countries, I think the parallel concept is "Fair Dealing." Lots of the concepts are the same...but the whole process might be different for you.
https://en.wikipedia.org/wiki/Fair_dealing

Also, what sport are you after? Do you need a specific event (e.g., Team A beats Team B for the first time in history) or just some footage of a particular sport (e.g., someone golfing)?

Jim
PS- Thanks for the kind words, Dan. In another life, maybe I would have been a lawyer focusing on copyright, first-amendment, and related IP issues. Fascinating stuff... Plus a clear(ish) understanding of fair use has probably saved me from a few difficult situations....
 
You are researching feasibility - maybe you have your answer - unfeasable?

Say you were doing a doc about a football fan and the background to his story was that of the club he follows I guess that might only be feasible on a budget with co-operation of his club?
 
morgan_moore said:
You are researching feasibility - maybe you have your answer - unfeasable?

Say you were doing a doc about a football fan and the background to his story was that of the club he follows I guess that might only be feasible on a budget with co-operation of his club?
Click to expand...

I have a colleague who made a film about the fans of the Chicago Cubs, the actual playing footage was seen in the BG of many shots, both live and on TV. It was only possible to make with the cooperation of the Cubs.
 
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