Charlie Lyne – Working with Fair Dealing

Charlie Lyne (Filmmaker and Film Critic)

Thank you. Can we bring the presentation up, perfect, there we go. I’m Charlie Lyne, and I am an essay filmmaker, so for anyone who doesn’t know what that means, it means typically working with a lot of existing material and as well as some new stuff, often new narration and soundtrack and all kinds of different elements to advance some argument or make some new narrative or story.

And the way I got into that was, when I was a teenager I started a movie blog, and so I started writing about film and therefore consuming a lot of film and chewing it up and rebuilding it into something else, whether that was through words or making the little video pieces for this website or any other form.

And so through that I started to think about taking all of this film material or TV material and building it into new visual material of some kind, and fell into essay filmmaking through that.

So I’m going to talk a little bit about some of the work I’ve made over the last five years, and specifically how it’s worked legally speaking with regards to fair dealing, which I’ll explain a bit about for anyone who doesn’t know.

What I should say upfront, which I have to say every time I talk about something like this, is I’m not a lawyer, so please don’t take anything I say as legal advice. Likewise there’s probably people in the audience who know a lot more about fair dealing than I do, as someone who has just used it in their work, so feel free to stick your hands up at any point and correct me if I say anything that you think is wrong.

Anyway, so I’m going to start by talking about the first thing I made that used a lot of existing material, and this was something, this was just a short little video I made when I was a teenager still, before I would’ve even heard of fair dealing or really understood that there was any legal framework through which to make work like this.

And so it was a piece of work called Death/Hitchcock and the conceit was that I was combining thirty-six scenes from Alfred Hitchcock films across his career in which there was a death, and synchronising those thirty-six scenes so that all of them arrived at the moment of death simultaneously.

So to give you a quick idea of the cacophonous sensation that that results in, I’ll just play the first minute, this doesn’t go up to the death point, but gives you some sense of how it plays.

So I’d be lying if I said I could entirely remember what inspired me to make it, or what I thought the practical benefit of making it was, but I knew there was something that interested me about it, and something that interested me about those juxtapositions that were being drawn.

In any case, I didn’t really do anything with it at the time, but in the years that followed, before I was starting to really make any more work than this, or certainly long before I would’ve thought of myself as a filmmaker, I started seeing more and more work that was using lots of existing material, so be that old hallmarks of the essay film practice like Los Angeles Plays Itself or a spate of newer films that were all crossing over into mainstream film circles, but using these same essay filmmaking techniques, so stuff like Room 237 or Sophie Fiennes’s The Pervert’s Guide to Cinema series for Channel 4, The Clock which was a very successful installation video piece that was installed just next door in fact where an artist created a twenty-four hour video installation made entirely from existing film clips that all took place at whatever time of day that you went in to see the piece. And all of that stuff I found really stimulating and interesting and opened my mind to both the idea that this work could be made, but also that it could be made legally.

And so I was introduced to the concept of fair dealing or as it’s called in various countries fair use, and for anyone who doesn’t know that’s the legal provision that allows people to use excerpts of copyrighted work for free and without permission as long as they’re using them for one of a number of purposes.

So the most common purpose is criticism and review. So for instance in The Pervert’s Guide to Cinema you have the philosopher, Slavoj Žižek, advancing some outlandish theory about say They Live and clips from They Live can be shown alongside his theory to illustrate the point and advance his critical argument without seeking permission from whichever studio owns the film, and without having to pay any money for it.

And this was like a complete revelation to me the idea that this was a legitimate thing that you could not only do but then seek to release and show people and not face any legal ramifications from.

As I say, when I made the Hitchcock thing it would’ve never occurred to me that that was anything other than an illicit oddity that I could make and maybe show to friends or whatever.

So at the time I’d been working on a piece of writing about teen movies, and I was really interested to do something exploring that genre, but one thing that I kept pushing up against was that I felt unable to, in my critical writing about the teen genre, capture the more gut audio-visual impact of those films, and the emotional sway that I felt like they had over me and over all the adolescents that they’re targeted at.

So I started thinking about the potential for instead of doing that piece of work in writing, doing it in the form of an audio-visual essay, and that’s what I ultimately did.

So in 2014 I made a film called Beyond Clueless that was a feature length film essay about teen cinema, and through making it, the film was made on an extremely low budget so there was no money to consult with a lawyer through the making of it, so what I had was the examples set by all of these films that I had seen that had introduced me to the idea of fair dealing, but also a sense of what felt like an important thing to say. So as with the Hitchcock piece, I was trying to follow my impulses as much as possible, and worry about the legal framework that it might fit into later.

So one thing I knew was very safe was, as I mentioned with the Žižek thing, advancing of a fairly straightforward critical argument and using clips to illustrate that point.

So I’ll show you the first short clip from this film that does exactly that.

So the end of that clip ventures into this other territory that I was much more confused but intrigued by which was the idea of creating a commentary on the teen genre that was much more instinctive and audio‑visual than it was literally critical.

So in that instance you see a clip from the film playing out but the soundtrack, the music that’s accompanying the two guys rapping in the courtyard is part of the original score of my film, and this centres a whole much more grey area when you’re starting to create new material from existing copyrighted material for a much more implicit reason.

But, anyway, I pushed on because I was intrigued by where that could go, and like I say that’s the less prosaic side of the commentary that I felt I couldn’t achieve through the written word.

So to give you one more example from this film of something that I wasn’t really sure how it would fit into a fair dealing framework, but that I knew I wanted to be a part of this criticism.

There’s a number of essentially montages throughout the film that look at tropes of the genre, so they compile a number of examples of existing tropes from teen cinema be they the house party, or the virginity losing scene or whatever, and combining them to create this unified world in which all of these films exist within the same space.

So I’ll give you one example which was one of my favourites from the film, because it was a more unexpected trope, and it’s the trope of two characters meeting and courting in an abandoned swimming pool at night.

So as I say, at the time of making it, I had a conviction that there was value in these montage sequences and that they were adding something to the overall critique of the genre, but it was much harder to defend them without the presence of any kind of direct literal criticism from a voiceover or otherwise.

And when I talked to other essay filmmakers who’ve worked within the UK fair dealing framework, I got a lot of scepticism as to whether this would actually be possible or would any way be passable.

Very luckily for me in 2014 amendments were made to the fair dealing legislation which introduced a number of new exceptions, i.e. reasons that you could give for using copyrighted work, and so in 2014 there was an exception added for parody which allowed for a lot of political parody work, as well as one for quotation, and most importantly for my purposes one for pastiche, so I was able to then use that to justify something like this on the basis that I was pastiching an existing trope and commenting on it through the building up of multiple examples of it.

So, I think that was an interesting case and a quite emblematic case of how fair dealing and all of its international variants often are following the work that’s actually being done, as opposed to the other way around, and if you look at the way that these laws have evolved it’s so often that way round.

Specifically, I know The Clock, the twenty-four hour installation piece, was very heavily considered in the adding of this pastiche exception because it was seen as an important piece of work that had a right to exist, and therefore something that the laws needed to expand around.

So, anyway, as a result that meant that this film could be certified as a piece of fair dealt filmmaking and ultimately it was released through festivals and then had a small theatrical release here. It was sold to Netflix and a few other places like that.

And essentially that was the point at which I became a filmmaker, and the next thing I made was a direct result of having made this film which was a project for the BBC iPlayer which in 2015 was just starting to commission feature length films mainly made in an essay filmmaking style because they were seeking to make feature length films but couldn’t afford to budget newly shot drama features.

So instead they were looking to this relatively affordable and increasingly popular form of filmmaking, and obviously they have Adam Curtis, the renowned essay filmmaker on staff, so he was making a lot of material for them, but they were starting to branch out beyond him.

And luckily at the exact moment that they were looking for someone to come in and make a new project for them, the teen movie film, Beyond Clueless, was in UK cinemas so I was very lucky, right time, right place to be able to go in and make my next film which was called Fear Itself, and that was an essay film about fear in cinemas, about horror cinema and thrillers and any filmic medium through which fear could be conveyed.

And so this time round I had the benefit of a dedicated lawyer who was one of the BBC’s in-house lawyers called Charlotte Vaughan who was great at being able to explain to me the minutia of how these laws worked, but also how these laws could be pushed and pulled and prodded and made to encapsulate work that had a right to exist.

So one of the big leaps forward personally for me was the ability for her to show me how I could get away with crafting a critique of a piece of filmmaking that was indirect, so rather than explicitly commenting on a film as you saw with the clip from She’s All That before where the narrator literally says this character does this, it could be construed as meaning this, you were able to convey a general idea and let the viewer do the work of applying that to the clip, and becoming the critic themselves, which I think is a really useful and potent technique if you can get away with it. So I’ll show an example to show what I mean.

I think we’re running a bit behind schedule unfortunately so I’m going to have to skip the next few clips, but essentially the thrust of the presentation was going to be that, I think it’s really important to make fair dealing and its various exceptions work in service of what you think are valid impulses and what are valid messages and critiques and pieces of art to get across, and that that’s what these exceptions are there for, to facilitate that, and so I think it’s really important to let the idea lead and find how the exceptions can fit around those ideas because that’s how the law has advanced in the past and will continue to advance in the future.

So if there’s any questions about that at the end I think we’ll all be over there and you can ask. Thank you.