Short clips avoid copyright?

R

richmondfloyd

Active member
Hi,


I understood the UK rule on copyright to be that you cannot use material that is not your own under any circumstances, unless you gain permission from the copyright holder.


However, my colleague told me he thought that if you only use a few seconds of a clip, you don't need to ask permission.


Is there a governing body that I can check with? I've never come across this.
 
I do not know UK law, and I offer this only as an adjunct to those who do, in case you ever shoot in the US. Under US copyright law, certain clips may be used under certain circumstances. For instance, if one is doing a documentary on Elvis Presley, one might be able to use short clips from TV appearances and the like, on the principle that one cannot do a documentary on Elvis Presley without at least SOME footage from his performances. But the caveat is that it can be no longer than necessary to make the point, and how long in necessary is entirely undefined. So, it's a risk. There was a famous case (and IIRC, it involved the selfsame Elvis) in which someone tried to claim that entire songs rendered on footage were covered under this principle for documentaries, only to lose the argument. ENG work also has different rules here. However, outside of doc and news work, I don't know of a genre that allows one to take any intellectual property, however short in length, without paying for the rights.
 
StuOS said:
I do not know UK law, and I offer this only as an adjunct to those who do, in case you ever shoot in the US. Under US copyright law, certain clips may be used under certain circumstances. For instance, if one is doing a documentary on Elvis Presley, one might be able to use short clips from TV appearances and the like, on the principle that one cannot do a documentary on Elvis Presley without at least SOME footage from his performances. But the caveat is that it can be no longer than necessary to make the point, and how long in necessary is entirely undefined. So, it's a risk. There was a famous case (and IIRC, it involved the selfsame Elvis) in which someone tried to claim that entire songs rendered on footage were covered under this principle for documentaries, only to lose the argument. ENG work also has different rules here. However, outside of doc and news work, I don't know of a genre that allows one to take any intellectual property, however short in length, without paying for the rights.
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You too are quoting urban legend. Documentaries do not automatically fall under the Fair Use exclusion for news coverage simply by virtue of being documentary. "March of the Penguins" was unquestionably a documentary but was it "news"? Immediacy to the events is one criteria. Old news is not news. Many, if not most, docos are not "news coverage." US law is very specifc about where the Fair Use defense can be applied - news coverage, copying of materials for in-classroom use in K-12 in a bona fide school, academic research, criticism and review. The fact you can't make a doco about Elvis without clips of Elvis doesn't enter the equation - unless it meets those limited criteria you have to have permission to use the clips. The law isn't really concerned about whether you can make your movie or not - it says if you can't get the permission you can't make your film (unless you can do it without the clips).
 
Other issues, especially in the "Elvis case," or others like it, have to do with multiple copyrights, not just the pictures.
In the case of news or old TV footage where music may be involved, it's not just the images that would need (or not need if they fall under "Fair Use") clearance; both the song, and in many cases the specific recording of the song, would need permissions as well (for example with Elvis, Leiber & Stoller/ATV/Sony own specific songs in the Elvis catalogue, but RCA might own the copyright in the recorded version).

There is a guy out in LA, Denny Tedesco... His dad was Tommy Tedesco (famous West-Coast session musician). He has made a documentary film about "The Wrecking Crew" (studio legends akin to the Funk Brothers), but can't officially release the movie due to the extreme high cost of song rights clearances.

GJ
 
Steve, I took what what I said pretty much directly from my attorney, though paraphrased and, therefore, not in the sort of legal language that would be more precise because I didn't have time, at that moment, to go into any detail. That's why I said one "might be able to use short clips" and the like, instead of asserting it as an absolute. No offense implied, but I make a lot of docs, and I think I'll go with her take over yours, at least when it comes to US copyright law, especially as you appear to be Canadian and her take, having been trained in, and having practiced, US law for around two decades, is likely to be more informed than yours. So far, we've had only two copyright infringement claims in around 18 years, both of which were dismissed early by a US judge under the Fair Use doctrine. I would agree wholeheartedly with anyone who characterizes her as "aggressive," but it's worked out so far. Perhaps your own attorney, when you make your own docs, is a bit more timid?

Here's a link on the subject that may be helpful: http://www.current.org/doc/doc0521fairuse.shtml I think reading the entire thing is instructive, but here's a phrase that goes to the heart of what I said: When Fialkov trains producers about fair use, he advises them that fair use covers only as much of a copyrighted work as required for their purpose. “Producers might sometimes prefer to keep more of it for entertainment value,” he says. “In our view, fair use might not extend so far.” This is what I meant when I said "that it can be no longer than necessary." Oh, the linked piece also has a very short paragraph on the Elvis Presley case I referenced.

Now, when I do corporate work, which pays the bills much better than doc work, I pay for EVERYTHING. I wouldn't THINK of trying to assert Fair Use in that context.

Finally, I'm more than a bit puzzled by some of your response. I don't believe I said anywhere that documentaries "automatically fall under the Fair Use exclusion for news coverage." In fact, nowhere in what I wrote do I find any assertion like that. I did mention ENG work by saying it also had different rules, and I continue to assert that it does. I did not say that docs and ENG are the same thing, and I really don't understand why you would think I asserted that "March of the Penguins" was news????? Nor did I say that ANY docs are news coverage, as you seem to assert that I did. I merely asserted that documentaries do have special rules under Fair Use, and I stand by that, as I'm quite sure my attorney would, but I'm not going to pay her in order to ask her about this particular thread ;-).

Regardless, I highly, highly recommend consulting a copyright attorney before assuming anything about what you can use under Fair Use, and how much of it you can use. It's not a simple issue in the least, and in some cases, it might be cheaper to buy rights than to pay an attorney.
 
I didn't say you said "March of the Penguins" was news. What I said was many people confuse "documentary" with "news coverage" in their understanding of how the the Fair Use Doctrine is applied, considering them to be synonymous, and I gave "March of the Penguins" as an example of a film that was unquestionably a documentary and yet also unquestionably NOT news coverage. "Fair Use"allows for copying for the purposes of news coverage but does NOT grant exemption for documentaries in general. Your assertion that documentaries have special rules under Fair Use is incorrect; only SOME documentaries do, ie, those particular documentaries that happen also to be 'news coverage' would have special rules under the doctrine and their inclusion in the rules governing Fair use is based on their being news coverage, not on their being documentaries.

Infringment is not dependent on the length. A copy is either infringing or it's not and if it is infringing, it's infringing no matter how brief it may be. You are correct that Fair Use does say that no more of the material being copied may be used than is necessary. Brevity in and of itself cannot bring something under the Fair Use umbrella though using too much can take it out.
 
Steve, I believe you also accused me, quite rudely, of "quoting urban legend," when I did nothing of the sort. I don't believe a single thing I said was in error, in the least. If so, please point it out to me in a quote and I will attempt to make amends. In fact, the US doctrine of Fair Use applies very much to documentaries since so many of them are engaged in history, editorial, and/or social commentary, even though the lines between these things may be blurred, and none of which are news, at all (though a court may find that the use of, say, the McGruder tape in 1964 by a documentary or a book constituted "news" and/or "history"). I never once asserted that documentaries are news, or that the same rules apply. There is definitely provision for using clips or other media of necessary duration to tell an historical story (and historical stories are not news) -- as in the rise and fall of Elvis Presley, perhaps, where a comment about US TV's avoiding showing Elvis' gyrating hips might be accompanied by brief shots of Elvis' gyrating hips and a clip from the Ed Sullivan Show from the waist up. In fact, it is extremely, extremely rare for a producer to lose a legal action when challenged on these kinds of points. In that sense, the fair use protection is quite robust, though all of us would prefer to have the limits be much more obvious.

As for your assertion that length doesn't count, I believe you are in error. US case law has, in many cases, used the duration of a clip vs. it's total duration as one datum in rendering a decision on copyright infringement. It has also used the centrality of a piece in at least one case when a part of a book was copied. And the last restatement of copyright law in the US in 1976 (IIRC) made it clear that prior case law was to be integrated into judicial decisions. Generally, I'm told by my own legal counsel that I'm safe so long as I can demonstrate that I have used copyrighted material for historical purposes (and history can be six months ago if done right) no longer than is necessary, which is not entirely reassuring because "necessary" is in the eye of the beholder. So, I just keep it as short as possible to make the visual or auditory point. So far, so good.

You may be confusing US law and Canadian law. Canada, as you know, does not have a Fair Use defense, but uses "fair dealing," instead. They are not the same thing. I have had no cause to deal with Canadian law, so I am not an expert in Canadian law the way you are in US law, but my understanding is that Canadian law has no provision for such things as parody -- and that there are other material differences, as well.

Regardless, and back to the original question. US law does, in fact, have provision for fair use that allows one to use copyrighted material in documentaries for some reasons without purchasing rights and without violating the law. In that sense, the answer to the original question in this thread is that, if UK law is like US law (and it very well may not be), using clips of the shortest length you can, on matters of historical interest, or to illustrate a point in commentary, or if caught accidentally when filming something else, or when used as part of a critique, or when it is news (as my documentary on the last Democratic National Convention was) may be legal.

Am I incorrect in this?
 
Having dealt with U.S. copyright issues many times over the course of my 35 plus year career, I'm going to have to side with Steve on this issue.

As always, consult your own attorney rather than gleam the internet for legal answers.

All the Best!

Dave
 
David: Well, my career has only been 28 years, so I guess your 35 trumps mine. Still, I believe I'm right, and I have successful results in two lawsuits with my attorney, so I think I'll stick with her advice. Cheers.
 
David,
We're both old guys! I've been in the business for 30 years - 20 of them with McCann-Erickson where I served as Head of Broadcast Production. I also side with Steve. I don't pretend to know your situation, StuOS, but the phrase in your original post that caught my eye was:
"on the principle that one cannot do a documentary on Elvis Presley without at least SOME footage from his performances".
I can assure you that no matter what your lawyer told you, the position that you are entitled to at least a small amount of the footage because it is the subject of your doc. will in no way impact whether or not the use will be deemed legal or copyright infringement - not withstanding the length of the clip.
 
Copyright/Intellectual Property law is, like most other aspects of civil law, a dynamic, evolving discipline and body of precedents.
As with many other areas (crossing the Canada/US border, for instance), "It all depends on who's behind the desk at that time."

You're both right. You're all right. The kids are alright.

Get a lawyer to look over all of your paperwork.

GJ
 
StuOS said:
...

You may be confusing US law and Canadian law. Canada, as you know, does not have a Fair Use defense, but uses "fair dealing," instead. They are not the same thing. I have had no cause to deal with Canadian law, so I am not an expert in Canadian law the way you are in US law, but my understanding is that Canadian law has no provision for such things as parody -- and that there are other material differences, as well.

Regardless, and back to the original question. US law does, in fact, have provision for fair use that allows one to use copyrighted material in documentaries for some reasons without purchasing rights and without violating the law. In that sense, the answer to the original question in this thread is that, if UK law is like US law (and it very well may not be), using clips of the shortest length you can, on matters of historical interest, or to illustrate a point in commentary, or if caught accidentally when filming something else, or when used as part of a critique, or when it is news (as my documentary on the last Democratic National Convention was) may be legal.

Am I incorrect in this?
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Where you are incorrect is in the implication that it is the fact the film is a documentary that brings it under the Fair Use protections. The doctrine of Fair Use under US law protects usage for the purpose of news coverage, criticism and review, classroom teaching, academic research, and parody. Nowhere does the law specifically mention "documentary" and non-documentary uses are equally covered. (Weird Al's songs, for example, although I understand he actually does clear permissions for them, would likely be ruled Fair Use because they're parody should an infringment allegation ever come to court.) If the usage under question falls into one of those categories, it may be allowed as Fair Use, whether the production in which it is used is a documentary or not. Conversly, usage in a documentary where the usage contemplated does NOT fall into one of those categories will NOT be protected, no matter how brief the clip. It is not the fact that the production is a documentary that counts, it is that the specific usage of the materials being copied falls into one of those protected categories. It might be a documentary, it might not be a documentary, it simply doesn't matter. It is the nature of the usage, not the nature of the production in which it is used, that will govern.

BTW, one needs to be careful if offering "criticism" as a defense for an allegation of infringment. My understanding is that the sort of criticism the law contemplates is artistic criticism, not social commentary. When a movie reviewer on TV shows a clip from the film under review, that's Fair Use under the "criticism and review" provision.

You also have no basis for your assumption that because I presently reside in Canada I have always done so and thus am unfamiliar with US law.
 
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I think everyone's missing the OP's question as he's focusing on UK law not US.

That being said, I think UK law is less strict than US law and I offer this example:

The BBC has a show called Top Gear and anytime the 3 hosts build a car/work on a car they cue the 'A-Team' theme song. In the end credits, they never credit the song as being from the A-Team or the composser. There's also a Top Gear on here in the US and recently the 3 American hosts had to do work on one of their cars and they cued the music but this time the music was NOT from the A-Team. Similarly, shows in the UK almost NEVER hide the brand logos like they do here in the US.

Now this isn't a hard role but I suspect that UK copyright laws are much more easy than US.

Another think to look as was the recent ruling against George Lucas where the original designer for the Storm Troopers helmet IS allowed to sell replicas except in the US. Mind you Lucas owns everything associated to Star Wars out right.
 
RyanMKincaid said:
...The BBC has a show called Top Gear and anytime the 3 hosts build a car/work on a car they cue the 'A-Team' theme song. In the end credits, they never credit the song as being from the A-Team or the composser. There's also a Top Gear on here in the US and recently the 3 American hosts had to do work on one of their cars and they cued the music but this time the music was NOT from the A-Team. Similarly, shows in the UK almost NEVER hide the brand logos like they do here in the US.

....
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Just because they don't credit it doesn't mean they didn't clear it. Many licenses do not require credit. And as for blurring the brand logos, I think it's prevalence in the US is a matter more of a mix of paranoia and greed on the part of the production company than it is issues regarding copyright clearances. Paranoia because issues around a logo being visible in a scene are more about trademark law than they are copyright - in fact, in most cases a logo or name isn't a copyrightable work - and there's nothing in the trademark law that makes the Coca Cola Corporation's permission mandatory whenever their logo is visible in a scene. So it mostly comes down to greed because the program producers are saying to themselves "If we show their logo it's advertising for their product and we ought to get paid when we do that." Product placement can be a substantial source of revenue for production companies and I think their attitude is one of not giving it away so if the owner of the trademark hasn't paid to have it visible, it gets blurred.
 
Steve House said:
Just because they don't credit it doesn't mean they didn't clear it. Many licenses do not require credit. And as for blurring the brand logos, I think it's prevalence in the US is a matter more of a mix of paranoia and greed on the part of the production company than it is issues regarding copyright clearances. Paranoia because issues around a logo being visible in a scene are more about trademark law than they are copyright - in fact, in most cases a logo or name isn't a copyrightable work - and there's nothing in the trademark law that makes the Coca Cola Corporation's permission mandatory whenever their logo is visible in a scene. So it mostly comes down to greed because the program producers are saying to themselves "If we show their logo it's advertising for their product and we ought to get paid when we do that." Product placement can be a substantial source of revenue for production companies and I think their attitude is one of not giving it away so if the owner of the trademark hasn't paid to have it visible, it gets blurred.
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I agree with you on the branding issue. As for the clearence/copyright I still think its because of the looser laws in the UK. Again, I look at what happened with George Lucas and the recent Storm Trooper Helmet ruling.

At the end, I'm no lawyer, so take what I say with a grain of salt and def consult an attorney. But from my interpretation of instances similar to what OP is asking, this is what I gather.
 
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