Ben Green – “Polar bears don’t have agents….”: Rights challenges around creative re-use of archive

Ben Green (Ben Green Associates)

To start, I want to just say a particular thank you to Bart Meletti for inviting me to contribute to today, it’s been really great to be asked.

I’ll come back to why I’ve called this presentation ‘Polar bears don’t have agents’ – that’ll all become abundantly clear a bit later on.

But I wanted to talk about the rights challenges around creative reuse of archive, and we’ve heard of some of them today already. It was really interesting to hear Charlie just then talking about how he’s working through the fair dealing exceptions to do what he wants to do creatively.

So this is the challenge – and we’ve already touched on this this morning in some detail, so I’m not going to go over the actual legalities of it – but essentially copyright is there (contained within archive film). It’s a (civil) offence to perform any of the following acts without the consent of the copyright owner unless you use the exceptions to copyright: so you can’t copy the work, you can’t rent, lend or issue copies of the work to the public, you can’t perform, broadcast or show the work in public, or adapt the work.

And the particular protection that we get caught on with creative reuse is concerning the moral rights, which we’ve talked about at some length this morning already. It covers the ‘paternity right’ – to be identified as the author of the work. Or the right to object to derogatory treatment, (the right of integrity), and that is where creators often get caught out in terms of the legal protection afforded to a rights owner.

It’s worth remembering, and this was permanently stamped on my forehead at the BBC where I was until last year, that Television archive has two layers to consider: the ‘Programme’ level of rights, and the ‘Contributor’ rights underneath. So the programme rights owner is the person or company which owns the rights to distribute the programme or own the physical programme, and that could be a broadcaster, an independent production company or producer, or it could be licensed elsewhere or owned by someone else.

Once you sort out the ownership and the distribution rights, then you look at the underlying contributors in a programme to go and clear the rights for the use, and that can be a myriad of different people involved in programmes. I’m sure you’re aware that it depends what genre you’re working with, but obviously drama has rights owned by actors and musicians, whereas factual based programmes and documentary has pretty much everything in it!

And this is just an example of what is in a typical episode of Doctor Who. There is up to (approximately) eighty different contributions in an average episode of Doctor Who, and that can range across all of those ones listed there, and all the ones that you’d expect. That gets incredibly complicated where you try and distribute, or go off into ‘ancillary rights’ (to exploit the T-shirt of Doctor Who, or the toys, or whatever it is).

The BBC naturally has a number of rights owners and talent unions that it negotiates framework agreements with, to enable it to do all sorts of different things with its programmes: from broadcasts, to repeats, to sales, to putting stuff online, etc., (including the iPlayer, the catch-up service).

There are actually about seventy different agreements the BBC had with rights holders, but these are the main organisations it deals with.

So you can imagine the complexity and challenge we had when, back in 2005 ( it seems a long time ago now and I had to dredge my memory because so much has changed and happened since that date), that a very esteemed colleague who’s in the room today, Dr. Paul Gerhardt, who was at the BBC and a colleague at the time, developed the idea of the Creative Archive, and the Creative Archive Licence.

You must remember that in 2005 this was before the iPlayer – two years before the iPlayer was publicly launched – and it was also the same year that YouTube was launched (and nothing was published ‘til the year after that on YouTube). So this was really early days in terms of archive clips or footage online, and some of you are too young to remember it probably, but this was really challenging for the time that we were working in.

The idea was to enable members of the public – so this was a full public pilot – to make available legally cleared television and radio content for them to preview, download, modify and create their own versions and be creative with the BBC’s archive. And then share that new creation with others, and with the BBC, on a non-commercial basis.

We developed the Creative Archive Licence. It was based on the Creative Commons style licence but it had lots of BBC ‘bells and whistles’ added to it. So we had ‘no commercial use’, well that makes sense; ‘Share Alike’, so if you created something new you could share and they could then share it on; you must give ‘Credit’ (attribution), to rights owners; and you mustn’t endorse things (‘No Endorsement’).

And this was where the BBC Editorial Policy team got involved, because this was about (and this came up elsewhere this morning) use in political agendas, illegal websites, lots of different restrictions as in terms of the what somebody could use the footage for. And that pretty much stands to this day in terms of the BBC’s Terms of Use, as you’re not allowed to use BBC content for that type of use, or derogatory use.

And we managed to, well we didn’t manage, we were forced into keeping this to UK only (because of the rights owners and the rights position).

What was great was that several other organisations in the UK got behind this. Paul Gerhardt lobbied hard with many organisations, including the BFI, created a founding membership, and then pushed out to some pretty significant organisations. This included ITN Source (which was quite a big surprise to me that a news archive would do this).

And the aim of that was to create ‘public value’ for home use, learning and creative applications. But, we also intended to provide a commercial path so, yes, people could go and use these clips, but then we were going to develop that for the rights holders to then drive through to a commercial opportunity (for the public ) to buy the original content which would help rights holders receive royalties, etc.

This, I kept this after I left the BBC, and I’m glad I did for today. This was one of the publicity flyers which really didn’t go down very well with the rights holders. You can imagine the meetings we had with some of them, the big unions, and they actually said, I remember it distinctly, they actually said “You, the BBC, are striking at the very heart of intellectual property!”. Very emotional language.

And they thought the world was going to end, they really did when we started talking to rights holders, because they thought this was the beginning-of-the-end of their broadcast fees, their repeat fees, their royalties, where we were going to just let it all out there, let people have it for free and ‘mess around’ with their content.

Now, partly I have some sympathy with them (as a former producer), when you’ve spent a year/two years/three years/five years making a programme that is very precious to you as a creator, and you don’t necessarily want somebody else messing around with your work that you’ve spent so long creating.

However, it’s a very fine balance between a public institution wanting to make this accessible and to let people be creative with stuff. Some rights holders completely ‘got it’ (of what the BBC was trying to do), and I’m really glad to say that we managed to persuade a lot of people actually to licence us to use clips in the Creative Archive.

So we had a number of ‘campaigns’ and I’ll go through these very quickly, with the pilot lasting for eighteen months overall. It was very much a pilot, and we wanted to understand how people were using it, whether it was a good idea, whether people liked it, and to get some feedback.

The first campaign was the Superstar VJs with Radio 1 which was a competition where people remixed what I call ‘stock shots’, so landscapes, sunsets, skylines, things like that, and some natural history material. (‘Video Jockeys’ as they were then known, they’re not so popular now, I started looking them up and they don’t seem to do it anymore, or they’re called something else). This was a competition where the winner won £250 towards some equipment and they got the chance to do their film alongside a live mix with a Radio 1 DJ, or something like that, so that was a good start.

Then we moved on to the Open News archive, where BBC News selected a number of clips to offer to the Creative Archive which they felt comfortable offering in this way.

Next was the Open Earth archive, and this was the natural history content. This comes back to the title of my presentation, when I distinctly remember somebody saying to me at the BBC, “Hey don’t worry about it, polar bears don’t have agents, you can just stick it up there!” And you say “No, it doesn’t quite work like that. Do you realise that natural history content contains a co-producer, a distributor who may have clip restriction rights, it contains a musical composer who’s composed the music, the orchestra (which could be up to a hundred people), it could have stills in it, it could have third party footage in it owned by other people which has been licensed in and stitched together with our footage. It’s not just about animals and polar bears!”

So that’s where that quote came from, and I always remember it to this day.

We did offer a lot of open earth archive and natural history, and we also offered an easy edit suite, so we started to give users the tools to create things and edit and mix things.

We then moved on to a local film collection of Cornwall which was very ‘rights-light’ local footage owned by the BBC and the regional BBC archive (i.e. landscapes, interviews, where it was very low risk).

And then, lastly, we moved on to the schools where some of this material was already up online and available (a site called ‘Class Clips’, which was all cleared for use online, and then we took an assessment or managed to clear rights for creative reuse). Again we wanted to test what school kids were actually going to do with this content.

In total, we had about six hundred clips from factual genres. Because of those meetings with the rights holders and unions, we steered well clear of scripted content (Drama and Comedy), that just wasn’t there to start with, but we had about twenty hours in all.

The results? We had about five hundred thousand downloads (really popular!), a hundred thousand registered users, there was international support for it, it won a BAFTA for interactive innovation, and (interestingly for me and really good to see) there were only two breaches of the Creative Archive Licence.

The first one was a piece of music that was used on a new creation that was a commercial sound recording so it wasn’t cleared, and the second one was we found somebody using it in New York and it was supposed to be UK only, but those were the only two out of five hundred thousand downloads. So that was a success in my book, and the public opinion was very high that we should be doing it.

However, sadly, it went no further than the pilot because the BBC then decided to back the iPlayer which, as you know, has become ubiquitous. I think the iPlayer is a fantastic service, but it’s a shame that this (the Creative Archive) didn’t get the backing at the time.

So what did we learn from the experience? Probably the most challenging rights clearance exercise I’ve ever done, and way ahead of its time. As I said, this was way before any other archive was starting to be put up online, to my knowledge.

We sourced material that was ‘rights-free’ or ‘rights-light’ [and] we avoided commercial sound recordings. The music industry didn’t want any music on this at all, so we had to strip the music off unless we found a suitable composer that was willing to grant the rights. However, [people often don’t realise] composers often grant the public performance rights to the PRS (Performing Rights Society) so, even though the composer would be happy for us to use it in this way, the layers above them wouldn’t, and that’s something we quickly learnt.

Collaboration with the creative rights owner usually helped, and individuals are more amenable, so it’s worth remembering that. And like all copyright use requests, if the rights owner said no, we respected that decision and found something else, a ‘Plan B’ if you like, and that’s always worth remembering when you’re sourcing archive.

So have things changed? The Creative Archive was twelve years ago and thinking about what has actually changed since then, as Charlie mentioned, the new parody, pastiche and caricature exception coming in three years ago has been quite interesting to see. You could still go and get permission from a rights owner to use things in one of these categories (and you can still use it without their permission as long as you stick to the rules, and you don’t have to acknowledge them either).

So we have a few examples of parody, some good still film poster examples: Silence of the Lamps, Paws, and the one I like the most is The Moron, Donald Trump, which is absolutely fantastic. (*Slide deleted, but examples can be found easily online)

And continuing in that vein, I just wanted to show a brilliant clip. In preparation for this I was searching for current people ‘parodying and pastiching’ using archive. This one came up as one that was trending last week, so I just thought this was very relevant: https://www.youtube.com/watch?v=nSuregWhlWk

Fantastic.

Really interesting that I’ve been in correspondence with the maker of that (Swede Mason) over the last couple of weeks, and I detected a sense of slight bitterness because he said this is actually being monetised now on YouTube by another company and he’s not receiving a penny.

Now what’s interesting for me is, and I have some sympathy for him, he must’ve spent hours making that. Question, is it legal? (a parody). I would argue it falls under that exception, but he (the maker) argues that if somebody transforms archive (into a newly created work), he thinks that they should be earning 50% of revenue generated from it.

I’m just throwing it out there as an interesting argument, that just because something’s up on YouTube it might not be the rights owner that gets the money, and there’s bigger players here that are moving in.

I’m just going to play a very quick one, another one: https://www.youtube.com/watch?v=jsYAYXeVtoM

That is another one by the same guy and, interestingly, he said to me that HBO, the owner of Game of Thrones, had tried to get Sky to take it offline (which they had done so) but interestingly it keeps getting reposted and going viral, so they’ve just given up now. So there we go.

Key points for film and TV parodies? Uncertainty remains, there’s no real clear boundaries and there’s still an element of risk, and you’ve got to weigh up the balance between freedom of expression and copyright protection, and really offensive material is unlikely to be acceptable, but that’s not to say it always has to be politically correct as seen in the Trump one.

It still has to be fair dealing, moral rights are preserved, and there’s still issues of privacy, defamation, and other grounds of infringement, so if you’re using a trademark just be careful of that one (somebody got in trouble using the United Airlines trademark in an alleged ‘parody’), and just get some legal advice if you’re unclear.

I’m going to skip the Adam Curtis clip – https://www.youtube.com/watch?v=KwUh-yVBV_Q – but I just wanted to mention that, because being a staffer at the BBC, Adam Curtis (as mentioned by Chris) uses the BBC archive in a journalistic sense. He doesn’t actually manipulate the footage, he just stitches it together under a narrative. And Adam’s told me that the only real issue he has with rights is about music when it goes outside the UK, and then it gets all very complicated, but he tries to keep the use within the UK.

Adam’s almost become a parody himself if you like – somebody’s done a brilliant parody called The Loving Trap (by Ben Woodhams) which you must look up on YouTube which is just like an Adam Curtis style documentary but very funny. So sorry, I’m not going to play that one (https://www.youtube.com/watch?v=Zs6bA5bVuCo).

There are internet archives out there that you can do creative reuse with and this is one, I’ll just play a little bit of this, of a Dutch archive re-mixed by Tom Sterk, a nature one: https://www.openbeelden.nl/media/1066864/My_nature_Meow_Meow.en

In my mind that’s very artistic use of archive and doing colouring and sound and mashing up and reversals and all that kind of stuff, and then you have a blending of archive, animation and interviews, and again I’m not going to play the clip.

There’s a brilliant film (‘Montage of Heck’) about Kurt Cobain who was the singer in the band Nirvana. Really creative use of archive footage from his childhood showing his development as a child, and through to his relationship with Courtney, his wife, but mixing animation (and really dark animation at that), and interviews. Look it up – https://www.youtube.com/watch?v=7a4imrOhK-I – and it’s well worth buying the DVD if you can (e.g. HMV /Amazon).

So concluding, despite the Creative Archive’s demise, creative re-use is very much alive and kicking, which is great to see, and parody and pastiche are finding a new breed of filmmaker.

There are film archives out there which actively encourage creative reuse. There’s one called the ‘Internet Archive’ (which was the Prelinger Archive), so that’s well worth looking up.

And just remember working with creative copyright holders often produces some really exciting results, so don’t be afraid of the rights holders. Go and talk to them, contact them and express your idea, because you might be surprised that they’d be really up for it. If they do say “No” though, just respect that.

And respect that this is a new context of use. It’s interesting, Claudy at the start of the day said every print of that original Sherlock Holmes was a unique artefact and print, and I just think that it’s useful to remind ourselves that actually archive has been made for a purpose somewhere by someone and just respect that when you are re-using it.

And, yes, polar bears don’t have agents, but remember all the other rights holders in archive footage….