Before we get started, just a few
things to bear in mind – the first is that this information is based around laws
and practices in the UK, and while there’s much crossover, you should
always check which laws apply to you. The second thing is that this article
should be taken as information and advice only, it’s always wise to
double-check any specific queries you might have with a legally qualified professional.
What is Copyright, What is
Copyright and licensing are
sometimes confused by people who aren’t used to the terminology. Although
that confusion can be frustrating for filmmakers, it helps to be in a position
to explain the difference simply and clearly.
Copyright is the legal ownership
of your work. In the UK, that starts from the moment you create it, whether
that’s a picture you’ve taken, words you’ve written or footage you’ve shot. If
it’s your intellectual property, the copyright is yours. Copyright is different
to a trademark, the latter usually applies to brands, logos and taglines and
requires payment and registration to action.
Licensing is something the copyright
holder can provide to another party to allow them to use their intellectual
property, so in this case we’re talking about film footage. What form that
license may take is a little more complicated and can vary from case to case. I’ll
go into more detail next, but the main takeaway about a license is that it gives
permission for someone else to use your footage, without you needing to
relinquish the copyright.
What Form of License?
Asking about a license can be a
little like asking how long is a piece of string. In short, it can be anything
you want it to be, if the footage is yours then it’s up to you to set the terms
and restrictions of the license. Here are a few of the most common examples:
With traditional, rights-managed stock, you buy one item for one specific project. If you want to re-use the image or use it outside the original agreement you need to renegotiate or buy further use rights. What’s usually most appealing about rights-managed audio and video is that it can be exclusive, meaning you are the only one who can use the clip.
I find myself frequently yelling that royalty free doesn’t mean you can
use something for free. I appreciate the wording sends a mixed message if you
aren’t in the industry, but don’t let it trip you (or your client) up. Royalty
free means that once you’ve paid for your license, you can use the footage
across more than one project without paying again. There are usually
restrictions and you should read those carefully to be sure you’re abiding by them.
This is a lengthy explanation, but it’s probably the term that’s most
crucial to understand and be able to convey to others, so stick with me. Fair
use isn’t a license as such, but it is something that gets bandied around, particularly
when it comes to using audio tracks and someone else’s video footage.
common misconception that you can use a certain length of footage or music and ‘get
away with it.’ That’s not the case, and it’s something people can confuse as ‘fair
use.’ Fair use is actually an elastic and precarious term; you should always
make every effort to get official permission to use something. That isn’t
always possible, and if you’re then using that footage or music as something
short and demonstrative, then it could be considered fair use.
Fair use, almost
always, will only apply to fact-based programmes like a documentary and only
then if it’s demonstrative within the mix, not entirely created from other
Fair use doesn’t have any strict rules, and that’s what makes it a
dangerous line to tow. If you get into trouble, it’ll be up to a judge
to decide how it goes based on their interpretation of how you’ve used the material.
They’ll likely take into account things like the intended purpose of the
footage used, the nature of what you’ve used and how much of it you’ve shown,
and the potential ‘damage’ to the copyright owner of that material – whether in
monetary terms or perhaps more murky considerations like reputation damage.
Creative Commons is broken down into a number of sub-licenses. Here’s a quick
rundown of those:
CC (CC BY)
allows someone to alter the footage (including commercial use) as long as
you’re credited for the original.
Attribution-ShareAlike (CC BY-SA)
above, including credit but also means any new footage created with yours will carry
the same license, so any offshoots will allow commercial use.
Attribution-NoDerivs (CC BY-ND)
someone to redistribute or commercially use your work as long as it isn’t
altered and still credits you.
Attribution-NonCommercial (CC BY-NC)
commercial use allowed, but your work can be altered as long a credit is
Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)
non-commercial use, but allows altering with a credit and identical license for
their new creation.
Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)
sharing with a credit, but no commercial use and no changes allowed.
Domain or CC0
choice essentially opts you out of copyright protection, so footage (or any
content) can be used for anything and by anyone.
Avoiding Logos and Trademarks When
If you film someone else’s logo or
trademark, you need permission to show it, even if it’s just on a billboard in
the street. It’s the reason many stock footage creators go to
great lengths to create good street scenes that can be sold, because it’s darn
hard to film these days without getting someone else’s brand in the shot
This also drags us back to fair use. If you’re filming and you happen
to accidentally catch a logo on something as you pass, yes it probably does fit
under fair use, but you need to consider everything previously discussed. It’s
probably better to avoid it entirely where possible.
If you’re uploading footage to a stock site, like Envato Market or Envato Elements, this is something
that will be covered in the terms and conditions of the uploading, so make sure
you’ve covered your bases.
Many broadcasters, won’t show something that is considered to give undue prominence to a brand or product, even if that’s entirely accidental.
Filming in Restricted Locations
Another falsity that rears its head
from time to time is the notion that land that the public has access to is always public land. Filming and photographing in privately owned places like transport
stations and shopping malls is usually forbidden, and you can find yourself in
trouble if you ignore those rules. It’s also the case (here in the UK) that
certain historical properties don’t want you using them commercially, and so if
you were to film on their land without permission, when they’ve said not to, they’d
be within their rights to take you to court. You’re usually fine with filming
on actual public land (or common land) but it’s
always wise to check who owns what before you plan a shoot.
Did you know, for example, that filming or photographing the Eiffel Tower by night isn’t allowed? The light show is considered an artistic work with its own copyright and so it’s actually that, rather than the tower itself, that you’re not supposed to show.
Filming people who are in crowds or
who are in the background of a scene, has become more complicated in some countries since the
introduction of GDPR. It’s really another
article in itself, but in essence the law changed to say that an (identifiable)
image of someone is now considered data in the same way as their name or address, and so there are extra things you need
to think about now before you include anyone ‘accidentally’ in your footage –
they have the right to ask to be removed, which could cause you real problems
if you’ve already sold that footage.
How do YouTubers Get Away With it?
This is the argument I have to negotiate
the most with people who don’t work in media. If ‘such and such’ is doing it
and getting away with it then it must be okay. When I’m done screaming noiselessly into the
void, I offer the following take:
Firstly, just because someone else is
doing it doesn’t make it okay, and if you’re a professional who wants to make a
legitimate income and be respected in the industry, appropriating someone
else’s work and using it for commercial gain probably isn’t going to win you
many fans. I think the word ‘professional’ is often the key here, and it
generally goes hand in hand with ‘commercial.’
There are lots of enthusiasts making fan videos about their favourite things, be that film, music,
celebrities and so on. In doing that, they generally use any number of clips, music
and assorted bits that will be someone else’s copyright. Is that legal? No. Is
it okay? Well… big companies have come to understand that hitting their supporters
with injunctions for fan art/videos is not the best look. Sometimes, it’s
actively encouraged, in fact.
The major caveat with this sort of
thing is that it’s non-commercial,
and YouTube have even gone so far as to flag up videos using copyrighted material
and attach adverts to the video (if the owner of the material has marked that action as
acceptable) as a means of recouping some of the revenue potentially lost by
someone else using their work. They can however, ask for it to be removed.
‘Fans’ who move into commercial use without a license, and catch the eye of large companies, can expect to be brought down to earth with
a costly bump. Disney in particular, is no stranger to making an example of copyright infringement.
A bit like ‘fair use’ arguments covered above, the whole area
is a minefield and if you’re a professional filmmaker, or even someone who
wants to use music or footage fairly, then just avoid this entirely: patiently explain to your client why you can’t put their favourite pop
song over their commercial video without paying a huge fee.
You can dig down into copyright and licensing until it starts to feel
like Inception, layers upon layers of rules, ifs and buts. Generally, though,
it’s down to common sense and professional courtesy. If you didn’t make it, ask
the person who did. If there’s a fee to pay to use something, accept that or
leave it out. If you have a little voice in your head saying ‘it’ll probably be
okay’ or ‘I’m sure I’ll get away with it’ then it’s probably wise to take
another look at what you’re doing and whether it’s really okay. As we often say
in our office, if in doubt, leave it out!