In practice, what this means is that if a film or television show includes the creative works of others (which could include excerpts from interviews taken from previously aired documentaries or from letters or diaries), there is typically a requirement for the producer to obtain consent from the owner of the copyright in the creative work in question, typically by way of a signed licence agreement which sets out the basis on which the creative work can be used.
If creative works owned by others are used in a film or television production without consent from the content creator, there is likely to be infringement of copyright, which occurs where a work has been used without permission or a licence and where the whole or a substantial part of the work has been copied. “Substantial” refers to quality, not quantity – for example, the inclusion of 20 seconds of the Colonel Bogey March was held to be infringing because the 20 seconds used were recognisable, whereas ideas taken from entire chapters of a book did not qualify as “substantial” because the chapters in question related to facts, ideas and theories (as was the case where Dan Brown was sued in relation to the Da Vinci Code). As such, the question of what qualifies as a “substantial part” is a question of degree and depends on the circumstances.
The Copyright, Designs and Patents Act 1988 (“the Act”) does, however, offer a number of defences to a claim of copyright infringement under the umbrella of “fair dealing” (“fair use” in the US), which sets out circumstances in which a work can be used (in full or in part) without permission from, or payment to, the owner of the copyright. These defences are exhaustive, meaning that faced with a copyright infringement claim, a defender must be able to hang his hat on one or more of them for the fair dealing defence to apply. This can be contrasted with the position in the US, where the US Copyright Act 1976 features an illustrative, open list of purposes to which the fair use defence may apply.
The fair dealing defence applies to five specific uses of a work protected by copyright:
For the producer, four out of the five uses are particularly relevant and worth further exploration:
This is likely to be the most relevant escape hatch for producers. Section 30(2) of the Act provides that this defence applies to all copyright works apart from photographs, so long as it is accompanied by a sufficient acknowledgement. A common way to fair deal under this Section is to use clips to report directly on a current event (for example, one broadcaster might use clips of another broadcaster’s footage of a natural disaster / serious event to report the fact that the incident had taken place).
Photographs, though, do not qualify, with an English court holding that the use of stills from a security video showing Princess Diana and Dodi Al Fayed arriving and departing from a Paris villa could not be defended under Section 30(2), even though the stills had been used (the court agreed) for the purpose of reporting a current event.
In order to ensure that the Section 30(2) defence applies, the following should be borne in mind:
Finally, it is worth noting that most sports broadcasting is excluded from “current events” because it is regulated separately.
Section 30(1) of the Act provides that “Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public”.
In the context of film and television, this typically relates to the use of clips. For example, in Pro Sebien Media AG v Carlton UK Television, the claimant had broadcast a programme which included an exclusive interview with a woman who was pregnant with sextuplets. The second defendant had produced a current affairs programme which featured a 30 second extract from the first programme and this was broadcasted by the first defendant. The claimant alleged copyright infringement. Though successful at first instance, the Court of Appeal ultimately ruled in favour of the defendants, on the basis that the second programme was created to criticise chequebook journalism. The Court of Appeal noted that “criticism and review” should be interpreted liberally and in the interests of freedom of speech, and that for the defence to apply, a significant acknowledgment should be given.
A similar outcome was reached in Time Warner v Channel 4 Television, in which the claimant, who owned the copyright in A Clockwork Orange, objected to the showing of clips from the film totalling over 12 minutes in the context of a television programme about the film. In this case, the court held that the Section 30 defence was available to the defendants, since one could not do justice to a review of the film unless one showed a number of clips from it.
In order to ensure that the Section 30 defence applies, the following should be kept in mind:
Section 30(1ZA) of the Act provides that copyright is not infringed by the use of a quotation from the work (whether for criticism, review or otherwise) provided that the work has been made available to the public, the use of the quotation is fair dealing with the work, and the extent of the quotation is no more than is required by the specific purpose for which it is used. There must also be a sufficient acknowledgment.
The Act does not define “quotation” so what constitutes a quotation depends on the circumstances – it might be a very specific quotation or it could be interpreted more broadly. European case law has made it clear that what is required is that there is a “dialogue” with the original work, but what qualifies as a “dialogue” can be very broad.
As a matter of practice, we suggest that when using quotations, thought is given to the purpose of the quotation, the way in which the original work is being engaged with, and the fact that the original work requires to be credited clearly. As yet, the “quotation” defence remains untested by the UK courts so there is still a degree of latitude in terms of how the statute is interpreted.
Until 2014, the UK did not have a separate parody exception or indeed specific principles in the case of parodies. That changed with the introduction of Section 30A(1) of the Act which introduces a fair use defence in the case of parody, caricature and pastiche. These terms are not defined within the Act but according to guidance issued by the Intellectual Property Office are to be given their everyday meanings.
European case law provides that to constitute parody, a work must “evoke an existing work”, while being noticeably different from it, and must constitute an expression of humour and mockery. The matter was considered more recently by the UK IPEC, in Shazam v Only Fools The Dining Experience, where it was noted that a mere imitation does not qualify since it lacks any opinion or criticism. “Pastiche” has not yet been subject to judicial scrutiny but it has been argued by academics that mash-ups, fan fiction, music sampling, collage and appropriation art might all fall within the scope of “pastiche”, suggesting that the exception is broader than might have originally been envisaged.
In practice, this exception is intended to allow creators to refer to other, earlier works within a work they are creating, so long as the amount of the work used is not excessive. This means that a comedian can freely use a few lines from a film for a sketch or that an artist may use small excerpts from other work to create a work of collage.
Whether any of the above defences will apply is generally a matter of fact and will depend on the circumstances at hand. Producers should as a matter of generality bear in mind the following practical tips when considering whether to include material from an earlier work, to what extent and on what basis:
If you are producer and are looking for advice in relation to clearance, the application of the fair dealing defence, or obtaining licences as part of the production of a film, documentary or television show, please contact Lauren McFarlane at lmf@bto.co.uk or 0131 222 2944.
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