ASK & DISCUSS INDEX

10 years, 3 months ago - Ben Craig

Hi Neelu,

Any lawyer who specialises in media work should be able to advise you. If you are in the UK, you could try Malcolm Moore at Planispheres.

That said, before you spent money on lawyers it's probably worth having a think about the likelihood of the content you're using being in the public domain. Ultimately a lawyer is probably just going to tell you there isn't any way of knowing for sure other than contacting the owner.

You don't say what type of "content" you're looking to check on, but if you're talking about video or photography content which you have found online, it is very unlikely to be in the public domain unless the owner has specifically (and explicitly) stated they have put it there. Copyright terms run for the life of the author plus 70 years.

It's also worth noting that "public domain" and "fair use" are not the same thing. Public domain means that the copyright has expired (or never existed), or that the author has specifically chosen to relinquish all rights to the work without condition.

"Fair Use" on the other hand provides a framework for parts of works which are still in copyright to be 'quoted', for want of a better word, without causing a breach of the copyright owner's rights. Fair Use is not universal in copyright law - the rules are different across various countries. In general, the principle of "fair use" relates to using small pieces of a copyright work where there is a research or educational benefit or it would otherwise be in the public interest. In practice, this means that, unless your short is a documentary, use of copyright elements which aren't cleared would not likely fall under any fair use exceptions. And even if it is a doc, it still may not. The problem with fair use is ultimately it is down to a court to decide. Judges tend to look at the specifics of an individual case so, although there are guiding principles in fair use jurisdictions, there aren't any truly hard and fast rules to say whether something is fair use or not.

The best idea would be to get in touch with the owners of the content you're using and obtain written permission. If you explain it is for a short there is a good chance you could clear the elements for free.

Best of luck,

Ben Craig

10 years, 3 months ago - John Lubran

This issue has been extensively discussed on these lists. Significant essays ought to be available here. I tried to find a short cut to some of them in the side bar index; could not find anything under legal. Since it is a repeating question perhaps there ought to be a new item on the side bar called 'Fair use and public domain'.

The central issue will be 'what sort of film are you making?' If it's a factual film (news, reportage and documentary) then just about anything might be fair use if its appearance in the film is incidental, sync media, parallel action and occurring at a moment being recorded pertinent to the subject. Lots of people will try to insist differently but they will be wrong, no matter how grand they may seem. This is the Law in pretty much most of the free liberal democracies and all those with a Common Law constitution, which is the Queens realms plus the USA. The caveat to this is that your film must be truthful, and any otherwise copyright entity must not be exploited by over use, such as unreasonable multiple cues, libellous associations and such common law torts and damages. If this were not so, news and reportage would be nearly impossible.

However if your film is a fictional construction or purely an art form then the use of copyright material is much more constrained. But for example, if a Hollywood movie had a chase scene down a public street would the producer need to clear copyright with every building owner or other incidental entity that appears in the back ground? Whilst the general answer to that is no, the producer would need to be careful of a great many things appearing that might infringe copyrights and other rights or cause damage by association or misrepresentation. So a lot more to care about if you're making a dramatic short.

Public domain is anything that is within a public place, and with some clear exceptions, not owned or leased to a private entity, such as a public street. Anything, including the Queen, the President, the police, children and even the secret services of the nation state can be filmed FROM a public domain, EVEN IF that entity is on a private place. The caveat to that is that any device used to unreasonably defeat a reasonable effort to protect privacy might be unlawful unless such is carried out in the public interest (in pursuit of crimes and offences for example)

Another public domain is an entity that has run out of copyright protection or has, despite having copyright protection, become public domain consequential to an act of release, whether intended or not, carried out by the copyright holder or if the entity had entered the public domain by default prior to the creation of a copyright, such as Soviet era film and music recordings. Case Law has clarified the issue beyond any further argument

These are the general frameworks of the issues. The devil is always in the detail. Common sense within the above contexts is the first tool; without which one had better hire those absurdly expensive lawyers!

10 years, 3 months ago - Neelu Bhuman

Dear Ben,

Thank you so much for your thorough explanation. I arrived at the same conclusion to see if I can track down the owners and ask for permission. The content I am referring to is news/interview video clips available on YouTube.

Thank you again!

All my Best,
Neelu