And other aspects of fair dealing – the producer’s friend
By Alex Wade, CEO of Reviewed and Cleared
One of the most frequent questions we’re asked when clearing films, documentaries, comedies, dramas and – well, anything celluloid, really, and podcasts and radio programmes too – is about fair dealing.
“We’ve used 23% of the original, so we’re OK, aren’t we?” or “the footage is more than 10 years old. It’s free, isn’t it?” are two questions that might come our way. Another is predicated on US-only distribution, and runs like this: “they’ve got the First Amendment there, haven’t they, and fair dealing is called fair use, isn’t it?”
To which we reply, guardedly, “Yes”.
To which sometimes people say: “Great! We can do what we want then, can’t we?”
Unfortunately, even in the land of the free – and even when it was presided over by Donald Trump – not everything goes. Copyright can be a minefield. And because copyright and fair dealing queries crop up so much in filmmaking – easily more than libel or privacy, though cash-wise, these will cost you more if you get them wrong – here’s a recap.
Let’s start by reminding ourselves how copyright is infringed.
How is copyright infringed?
Infringement occurs when original work is copied. If a blog post is reproduced word for word in a newspaper, the newspaper has clearly infringed the blogger’s copyright. Likewise, if said newspaper lifts someone’s video footage from Facebook and runs it online.
However, infringement is not dependent on all of the material having been used. It will occur if a ‘substantial part’ of the original is copied.
Many people believe that there is a precise formula for working out what constitutes a ‘substantial part’. In fact, there is neither a formula nor a set percentage. It is incorrect to say, of a 1,000 word article, that it is always acceptable to reproduce, without permission, 150 words of it, or any other amount. Likewise, it’s wrong to maintain that using only 12% (substitute a percentage of your choice) of a film means you’re in the clear. What matters is the extent to which you’re going to use a ‘substantial part’.
Imagine a blockbuster novel running to 500,000 words. The plot twist that wraps everything up is in the final sentence. To reproduce that sentence, even though it’d amount to a miniscule percentage of the whole, would be to copy ‘a substantial part’ and infringe copyright.
Size isn’t everything
So what constitutes a ‘substantial part’ is a question of fact, depending on an assessment of the work which has been infringed. It may be that the first few notes of a song are so distinctive that even if it is just the first couple of bars that are copied, an infringement has occurred. Likewise, the reproduction of two famous lines of a poem, when the rest is little known.
When it comes to films and television programmes, usually fair dealing relates to the use of clips, whether of music videos, ads, other films, or user-generated social media content.
Now, a quick break for some good news: there is no copyright infringement in reporting the courts, parliament or public inquiries. Likewise, consent is also a sound defence to a claim for copyright infringement.
However, the key defence is Fair Dealing. This is a statutory defence meaning that the use of reasonable extracts from the work of others is not an infringement of copyright if it is for the purpose of:
Reporting current events; or
Criticism or review; or
Parody, pastiche or caricature.
(There’s another limb, too: research or private study, where a literary, dramatic, musical or artistic work is used.)
For fair dealing to be used successfully, an acknowledgement must be given to the original creator of the work. In other words, ‘credit be where credit’s due’: the creator must be identified by name. Best practice, in today’s era, will often mean publishing the author’s website but the courts have held that mere use of a broadcaster’s logo amounts to a sufficient acknowledgement, likewise a narrator’s voiceover. In each case, though, the credit can’t be so transient that viewers neither see nor hear it.
Let’s look at the defences.
Fair dealing for the purpose of reporting current events
This is the TV producer’s friend. Note that it excludes photographs: as the old saying goes, you can’t fair deal with a photo. Beware of sports programming, too. Most of it is excluded. The main broadcasters have their own access code, which explains why you’ll sometimes see Sky Sports footage on terrestrial news.
But fair dealing will enable you to use an overseas broadcaster’s clip to report, say, wildfires in southern Europe or another natural disaster.
The event must be current, but an old clip could be used if it’s relevant to the current event in question.
Fair dealing for criticism or review
Once again, relevance is everything. Clips or other footage can’t be used gratuitously but must have a discernible connection to what’s being criticised or reviewed. As for the form of the criticism or review, it can be a voiceover, or text on screen, or footage of someone being interviewed.
Always bear in mind the effect on viewers. Will they regard the use of the clip as genuinely part of a form of criticism or review? If yes, great. If you’re unsure, chances are that this defence won’t help you.
And remember: adjectives are your friend. Make sure your voiceover engages critically with what’s on screen. For example, in a documentary about a filmmaker, showing a short clip: ‘Here X’s directing is at its most nuanced and yet visceral.’
Fair dealing by way of quotation
Copyright in a work is not infringed by the use of a quotation from the work so long as the work has been made available to the public (as is the case for all forms of fair dealing), the use of the quotation is fair dealing with the work and the extent of the quotation is no more than is required by the specific purpose for which it is used. As ever, there must be a credit too.
Quotation is untested by litigation in the UK courts and so is best relied upon in conjunction with fair dealing for criticism and review. The best way to think of quotation, for example in using a film clip, is to be sure the usage is consistent with the narrative and editorial purpose of your production. If it’s not saying anything but is merely there because it’s pretty wallpaper, it won’t be fair dealt.
Parody, pastiche and caricature
An added layer of fair dealing protection came into being on 1 October 2014, when the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 came into effect. The result is that you can use limited amounts of copyright material without the owner’s permission for the purpose of ‘parody, caricature or pastiche’. The words ‘parody, pastiche and caricature’ are to be given their plain English interpretation.
For example, a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well-known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork. There has been some litigation in this area (the Dekmyn case in Europe), making it clear that an original creator’s works can be co-opted to parody completely unrelated works.
A final note. For fair dealing, read, in the US, ‘fair use’. Yes, it’s underpinned by the primacy on freedom of speech safeguarded by the First Amendment. And thanks to the case law on how fair use can be ‘transformative’, in some ways there’s therefore more leeway than in the UK.
But wherever you are it pays to ask questions first, not least because if you fair deal (or fair use) correctly, you’ll have done no more than tell your story in an intertextual way – and you may also have saved a lot of money in licence fees.
Alex Wade is the CEO of Reviewed and Cleared, a specialist pre-broadcast and pre-publication law firm. He and colleagues will be contributing to WFTV in the coming weeks on legal issues in filmmaking.
Contact Alex via firstname.lastname@example.org