The following questions and answers are taken from FLAMIN's recent copyright seminar at the London College of Communication, which was co-supported by Own-it, the intellectual property agency.
Film-maker: I want to use a very high profile music track for my work:
(a) How do I find out who the rights holders are?
(b) If I decide to go down the route of re-recording a version of a high-profile music track, which rights holders do I have to clear this with in this case?
Lawyer: The following copyrights subsist in the original track: Literary (for the lyrics) and musical (for the score), which are owned by the composer; and Sound recording, which is owned by the producer of the sound recordings.
If you want to re-record the same track you will be creating a new sound recording, and so will have no issues with copyright there, but you will still have to get a licence or assignment of the rights in the literary and musical copyright of the track.
If you want to use the track without re-recording it you would have to get a licence or assignment of the copyright from the composer and producer of the track.
If you choose to record an entirely different track you have to consider who owns the copyright in the track that is created:
- Commissioned works: If you commission someone to record a track, you the composer will own the © in the lyrics and musical score, while the producer will own the copyright in the sound recording. You will have to get him to either give you permission to use it (a licence) or get him to assign the © to you.
- By employee: If you are the employer (this situation will only really arise if you own studio and employ your own musicians, music producers etc to create soundtracks to your work) - you as employer will own the © in the track.
You must also take into account performance rights. You will have to get permission from the musicians/orchestra who perform the track to use their performance.
Film-maker: I want to use a clip from a well-known feature film in a documentary
Lawyer: Documentary makers can use clips from other material under the legal concepts of 'criticism and review' exclusion or 'fair dealing'.
'Criticism and review' is an activity which falls within permitted acts under copyright law. It is one of three types of activity that are considered 'fair dealing'. Fair dealing applies to research and private study, for the purposes of criticism and review, and for the purposes of reporting current events. The key to this 'defence' to copyright infringement is that the use must be fair.
The criticism and review exemption applies to all copyright works that have been made available to the public and to the performance of such works as long as sufficient knowledge is given of the title and author of the © work used. There must be a connection to the © works used, e.g. a clip of A Clockwork Orange in a documentary about society would be okay, but a clip of a film which has no reference to what is being examined in the documentary would not be. The clip should not be so long/such a big part of the documentary that it could amount to copying of the whole or substantial part of the film as this would not be considered 'fair'. Re: 'substantial part', there is no definition or set percentage for what would be considered a 'substantial part' in relation to copyright infringement. It could be a very short clip of a film, but if the clip is of the most recognisable or significant part of the film this could be considered a 'substantial part'. It is about the quantity as well as the quality of the works copied.
Film-maker: Can I feature characters from a well-known novel in my short film?
Lawyer: The law does not recognise any exclusive property in the name of real or fictional characters because they are concepts and ideas not expressions of an idea (which is what is required for copyright to exist). There is therefore no copyright in characters.
Artistic copyright would exist if the person who created the characters has made drawings of them but, as in the example above, if they are simply descriptions of a character there is nothing to stop you featuring them unless they are well-known to the public and have been used in merchandising etc; for example, the Harry Potter characters. If so there could be a (registered) trade mark associated with them, and also goodwill, and if you use them there could be a claim for passing off, if the way they are depicted in the film gives the impression that the film has been endorsed by the creator of the characters. In this case you would need to get permission from the trade mark owner to use their characters.
It is useful to add that in the USA, copyright in characters does exist which gives the author the exclusive right to sequels and prequels of books about those characters.
Film-maker: Can I feature satirical or fanciful sketches featuring characters or plotlines from well-known TV series?
Lawyer: There is no copyright in character, but there could be an issue with false endorsement and passing off (for further information, see Can I feature characters from a well-known novel in my short film?). The physical likeness of a character is not copyright-protected, but in reproducing the characters on screen you may be reproducing costume elements, which may be protected. However, in a recent case brought by Lucas Films against a person reproducing and selling Star Trooper helmets, the court ruled that there is no costume protection in costume elements of the moving image.
That said, there may be protection for costume elements under design rights: These rights last thee years unless they are registered, and they then last 25 years. To check whether there is a design right in a costume element you may wish to reproduce you can search the design database. If it is protected, you must ask permission from the owner to use it.
Lawyer: This is a grey area as it is not clear in case law where the line is between ideas and the expression of ideas, when it comes to plotlines. Whether there is an infringement will depend on the facts of the issue. There is not defence for satire in the UK (as there is in the US). The Gowers Report published in 2006 recommended that there should be an exemption to infringement for satire and the last government agreed to implement this by 2008. It did not.
In general, copying a plotline will not be copyright infringement and if it is considered an infringement you may be able to use the 'fair dealing' defence of 'criticism and review' as long as it the use can be considered 'fair'.
Film-maker: Can I make a video using images from a book of artworks?
Lawyer: Copyright in the book will rest with the publishers, so you will need their permission to take images of it for the video. Individual artists own the copyright in their artworks ('artistic copyright') and words ('literary copyright') so you will need their permission (or the permission of the person to whom the copyright was assigned upon the artist's death) to adapt the work. In addition, photographers own artistic copyright in the photographs of the artworks, so you will need their permission to use the photographs in the video. Finally, artistic copyright lasts for the artist's life plus 70 years from the end of the year in which they died. Therefore, if any of the artists are dead you should consider whether copyright still exists in their work. If it has lapsed then you will not need to seek permission to use the work in your video.
Visit the Own-it website for more information copyright and intellectual property issues.
This content is supplied courtesy of law firm Finers Stephens Innocent.