Can I really use this? Copyright exceptions for filmmakers

Hi everyone, I am Claudy Op den Kamp, I am very happy to see everyone here, especially all the students from Bournemouth University, specifically L5 on the BA (Hons) Film’s Film Business unit.

It’s actually really hard to realise that the Copyright and Creative Reuse event was six years ago. That was the first time we ran the film business unit. As you might know, our undergraduate BA Honours Film programme is only seven years old, so that was the first time we had an L5. It was an amazing sort of school trip, we put everyone on a bus to the BFI, which was a really wonderful experience. It’s really nice to come full circle now with L5 here, you only had a short bus trip this time.

I am very proud to introduce two of our students, whose work was produced for this unit, in which we try to focus on creative reuse and copyright exceptions. So we are now going to screen their work. First, we are going to see both videos back-to-back and then I’m going to invite both of the makers up here to give us some comments on their creative process.

Beth Lyst is a current student on the BA Honours Film programme. She is currently away from Bournemouth, on a sandwich year, in between the second and third year, interning at Disney, and her video is called Class of 1999, which celebrates all the beautiful films made in the magical year of 1999. The video was made during the previous academic year.

Then we will see a video by Will Holloway, who is a recent graduate of the programme. He graduated two weeks ago with a First! His video Dealing with Fair Dealing celebrates exceptions in an extraordinary way, following on from the American example of A Fair(y) Use Tale, with which maybe some of you are familiar. Will’s video was made in the year prior to Beth’s.

Let’s screen the two videos back-to-back, please.  

I am Liz Gibson and I work in the BBC’s legal department, so what we do every day is look at the exceptions and how they apply to programmes that are going out.

A few years ago I worked on Charlie’s film Fear Itself (2015), which even for the BBC was something quite new: a film composed entirely of film clips. Normally there’s talking heads in between and a more conventional sort of criticism and review, but there wasn’t a commentary there. There is often mixture of exceptions going on in films that make use of clips. But I think both of these films are in the category of pastiche, without any other sort of commentary or quotations for the purposes of criticism or review. You are simply putting materials from different sources together as a composition, which can be considered a pastiche. Under the pastiche exception there is no need for credits, the materials you use don’t need to have been made available to the public previously, although obviously both the 1999 films and The Simpsons have been. The credits at the end of the Simpsons pastiche, is that part of the pastiche? Is that part of the parody? They’re quite funny, they’re so fast. But I don’t think you need them because I think that film qualifies as a pastiche.

Much less artistic types of pastiche are useful in programmes that the BBC put out, such as pre-title sequences or montages. I somtimes disagree with the Channel 4 Guidelines, I think they are quite conservative when they say ‘watch out for things that you put in what they call a sting or a trailer’. I don’t see why they should not be considered a pastiche.

An introduction to a programme – whether it’s Panorama or an interview with Judi Dench, or something – which shows images and clips that you are going to see later, but put together in a creative way – I would say that’s a pastiche. It’s not that it’s a low bar, you look at the risk and what it’s part of. Obviously, it’s much easier for me to say as someone at the BBC, ‘Yes, we can take that risk’, than for someone trying to get something out there for the first time. But I think you should be brave and rely on exceptions that are there because otherwise what’s the point of them? And these two films are the perfect example of that.

Hi, I’m Charlie Shackleton, I’m a filmmaker. I’m probably the least legally knowledgeable on the panel. So I might talk more about something I think you’ve both touched on, which was a distinction between your artistic impulses and then the legal parameters that you were trying to fit in, and the former coming before the latter.

This is certainly something I can relate to in all the work I’ve made that’s reused copyright material, including Fear Itself, the film I worked on with Liz and her colleague Charlotte at the BBC. I remember it was initially kind of slightly scrambling to think of those two different planes on which the film was coming together, because as you say, the film was so completely reliant on fair dealing that I felt as though we were kind of working out the path forward legally at exactly the same time as I was working out how I wanted to creatively move forward in structuring and shaping and creating the tone of the film. But what was very freeing for me was realizing that those two challenges could be mutually productive and symbiotic, especially thanks to you both for being risk-taking and for being keen to see what could be done rather than staying within the strictest parameters of the legal understandings.

What it took me a bit of time to realize was that so often the questions that are posed by the exceptions are themselves quite good creative questions, because they are basically rooted in why are you doing this, and how can you justify it? And not every artistic impulse obviously can be rationally justified but I think posing the question is still quite useful. The last thing I’d like to say, as maybe something of a caveat to that, is that you used the word ‘risk’ and that to me has become kind of the defining factor in any reuse. Because I personally feel that, as a filmmaker, I have a moral right to appropriate work that extends far beyond what my current legal rights are.

The question for me is less ‘what are the strict parameters of the law’ and more ‘what risk am I taking on by performing this reuse’. Sometimes that will mean working very closely and finitely with legal professionals, especially in a broadcast context or a context where you need E&O insurance to release a film. But then there are absolutely other instances, such as film festivals, online, or gallery environments, where a looser risk assessment approach to re-appropriation is actually more helpful. That’s not legal advice, obviously.

First of all, congratulations to both Beth and Will. I really enjoyed watching the videos and I actually watched them a few times yesterday in preparation for today.

The first thing that sort of struck me in terms of the law was that Will’s film had that long list of credits and Beth’s didn’t. I wondered if that was a conscious choice and now, based on your reflections, I can see that it was because you were relying particularly on the pastiche exception. But it occurred to me that it meant that for Beth’s film, she was ruling out a number of other exceptions that she could have potentially relied upon, like quotation or the educational exception, because of the lack of credits. So there’s an interesting question here, and it’s also based on risk, which is: Do you want to cover your bases and look to rely on multiple exceptions? If so, then it will be important to give sufficient acknowledgment, to have those credits. Or do you want to do without the credits because it’s too much hassle and say: Right, I’m relying on pastiche or parody.

The other thing that struck me with your film, Beth, was the use of music. Because when I was looking at the film clips themselves, I was thinking, okay, you’ve only taken small parts from the same film a couple of times, so in total you haven’t really taken that much. I thought she has consciously used small segments which themselves might not be infringing copyright. But then I was struck by the music. I liked the choice of music, I think you used Debussy in one act and also Vivaldi in another and I thought, the music is public domain but the sound recordings aren’t. And you use a lot more of those sound recordings than what you used from the films. It doesn’t mean it isn’t potentially justified under the exceptions, but it did make me think, you’re going to need to rely on the exceptions here, most clearly because of the amount that you’re using of the sound recordings.

I thought that in terms of the purposes of both works, yes, they can fit in within pastiche, and parody in the case of Will’s film, and quotation, educational instruction, etc. And in terms of whether they were fair dealings, and let’s not forget there is a requirement of fair dealing under these exceptions, it would also be fine because this was in an educational setting, it’s not for wider distribution. But then when you are looking at a different audience, you move into different questions of risk and who the audience will be. Maybe the framing of the exception changes because it’s about a commercial use rather than a non-commercial use potentially, if for example, you were to start selling your film for entertainment. But also it may attract the attention of the rights holders.

Then you are put in a position where even if you can justify your actions under the law, you have the rights holders for The Simpsons saying: ‘This is problematic’. And in that position, what do you do? Well, probably the first thing to do is to take it down from the platform for the time being. So I think that there is this interesting question and I know Charlie is saying it’s important, you have to assess risk depending on the context. I think that’s right. I certainly think the online context when you’re using more high-profile rights holders’ work is potentially going to cause difficulties and then the question is what the response to that is.

The other thing with the online setting is that it may be that it just gets taken down because you have the algorithm on the platform that recognises it as copyright material. It doesn’t mean you should give up though, there is a process to try to get the video re-uploaded on the basis of relying on fair dealing. So I think there is a way in which exceptions should be empowering and they are to a certain extent, but there is also a question of economic reality and which rights holders you are going to be dealing with if you are going to look for wider circulation.

To the extent that Bournemouth is running this course, we’re showing it here, they can easily rely on educational exceptions, it’s not being shown to a wider audience, it’s not a problem. But once you’re moving into a different sphere, I think different questions would arise. It becomes a question of economic power and what do you do in response to this.

To give you just an anecdotal example, I recently joined the board of quite a large IP organisation. They were advertising their conference and they used an image, and they got an email from a copyright troll, in effect an image agency, saying ‘we would like you to pay us 400 euros because you used an image from our agency’. And of course, we all said, well, we’re not going to do that. Martin Kretschmer who is leading on this said: ‘If we need to litigate, we’ll litigate, because it’s a matter of principle’. But not everyone will make that response.

So, in summary, I really enjoyed the films. Yes, I think they would fall within the exceptions. I would probably look to put them within as many exceptions as possible, so I would encourage you to use credits. But then it is also important to realise the reality of it, if you start distributing this online it may raise red flags even if you can justify your actions. And the question is: ‘What do you do in that situation?’. Thank you.