The use of unreleased copyrighted material to produce a video

As filmmakers you may come across material that you would like to use in your work, but you are not certain of whether you can use it. You may have heard of “fair use”, “fair dealing”, “free use” and/or “fair practice”. These are – in their most general meaning – the lawful use of copyrighted material with no need to seek permission from the copyright owner(s) or creator(s) or infringing their interest.

The legal framework is different, on the basis of domestic and international rules, but, in a holistic perspective, the outcome is always the same: if your use qualifies as fair use, fair dealing or free use (as the case may be), then it would not be considered an infringement!

To establish when this happens is definitely harder since judges and lawmakers did not want to limit the definition of these exemptions and it will always be a matter of fact, degree and interpretation.  However there are general guidelines that can help!

The first and more important guideline relies upon the rationale of copyright’s existence and legal framework. Copyright was born to allow the products of human creativity to be preferentially exploited, hence incentivized. This legal right was created to grant the creator of an original work the exclusive rights for its commercial exploitation, use and distribution.  In a nutshell, the creator is granted a source of income to incentivize further creations!

 

But copyright finds its first limit within the rationale of its existence: the aim of incentivizing human creativity; hence the balance between the interests of copyright holders and those of the users of works (the rest of the society.) This balance is struck by firstly bearing in mind that every creator, throughout the creative process, uses what he has absorbed and experimented with because of the works of former creators; and, secondly, that copyright policies and rules actually enhance scientific progress and the spreading of culture.

Therefore the first question you should ask yourself when using a copyrighted work is whether the said use negatively affects the market of the said work and whether the owner has lost its potential income.

 

In light of the above, we can further set the following tests:

  1. The purpose and character of the new work that is created (commercial, non-profit, educational purposes, criticism, parody, review, quotations, news, etc.);
  2. The nature of the underlying copyrighted material/work;
  3. The portion of underlying copyrighted work used (either in terms of quantity and substance) in relation to the new work as a whole.

 

Each of the above would deserve a specific deepening, but it is worth a brief focus on the latter. There is not a percentage or quantitative measure to determine fair dealing but the main grounds to always bear in mind if you are using third party material (e.g. music, footage, pictures, etc.) is to recognize whether your new work as a whole is a new original creation different from the underlying work used.

The purpose is also key matter! If your video is for your personal showreel, to show your skills, technique and creative taste, you have more room to feel safer and play with material you can find on the net (on the assumption that the relevant video will not be a source of income)! But if your video is for a given commercial/marketing project and/or assignment, if you allow to add ads, for instance, as pre-roll and get paid for it…if you are editing a movie that could be further commercially distributed…do not use unreleased third party copyrighted material and certainly seek legal advice before doing so!

 

By: Giuseppe Maesa

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