Before we get started, just a few things to bear in mind – the first is that this information is based around laws and practices in the UK, and while there’s much crossover, you should always check which laws apply to you. The second thing is that this article should be taken as information and advice only, it’s always wise to double-check any specific queries you might have with a legally qualified professional.
What is Copyright, What is Licensing?
Copyright and licensing are sometimes confused by people who aren’t used to the terminology. Although that confusion can be frustrating for filmmakers, it helps to be in a position to explain the difference simply and clearly.
Copyright is the legal ownership of your work. In the UK, that starts from the moment you create it, whether that’s a picture you’ve taken, words you’ve written or footage you’ve shot. If it’s your intellectual property, the copyright is yours. Copyright is different to a trademark, the latter usually applies to brands, logos and taglines and requires payment and registration to action.
Licensing is something the copyright holder can provide to another party to allow them to use their intellectual property, so in this case we’re talking about film footage. What form that license may take is a little more complicated and can vary from case to case. I’ll go into more detail next, but the main takeaway about a license is that it gives permission for someone else to use your footage, without you needing to relinquish the copyright.
What Form of License?
Asking about a license can be a little like asking how long is a piece of string. In short, it can be anything you want it to be, if the footage is yours then it’s up to you to set the terms and restrictions of the license. Here are a few of the most common examples:
With traditional, rights-managed stock, you buy one item for one specific project. If you want to re-use the image or use it outside the original agreement you need to renegotiate or buy further use rights. What's usually most appealing about rights-managed audio and video is that it can be exclusive, meaning you are the only one who can use the clip.
Royalty Free (RF)
I find myself frequently yelling that royalty free doesn’t mean you can use something for free. I appreciate the wording sends a mixed message if you aren’t in the industry, but don’t let it trip you (or your client) up. Royalty free means that once you’ve paid for your license, you can use the footage across more than one project without paying again. There are usually restrictions and you should read those carefully to be sure you’re abiding by them.
This is a lengthy explanation, but it’s probably the term that’s most crucial to understand and be able to convey to others, so stick with me. Fair use isn’t a license as such, but it is something that gets bandied around, particularly when it comes to using audio tracks and someone else’s video footage.
There’s a common misconception that you can use a certain length of footage or music and ‘get away with it.’ That’s not the case, and it’s something people can confuse as ‘fair use.’ Fair use is actually an elastic and precarious term; you should always make every effort to get official permission to use something. That isn’t always possible, and if you’re then using that footage or music as something short and demonstrative, then it could be considered fair use.
Fair use, almost always, will only apply to fact-based programmes like a documentary and only then if it’s demonstrative within the mix, not entirely created from other people’s material.
Fair use doesn’t have any strict rules, and that’s what makes it a dangerous line to tow. If you get into trouble, it’ll be up to a judge to decide how it goes based on their interpretation of how you’ve used the material. They’ll likely take into account things like the intended purpose of the footage used, the nature of what you’ve used and how much of it you’ve shown, and the potential ‘damage’ to the copyright owner of that material – whether in monetary terms or perhaps more murky considerations like reputation damage.
Creative Commons is broken down into a number of sub-licenses. Here’s a quick rundown of those:
Attribution CC (CC BY)
This allows someone to alter the footage (including commercial use) as long as you’re credited for the original.
Attribution-ShareAlike (CC BY-SA)
As above, including credit but also means any new footage created with yours will carry the same license, so any offshoots will allow commercial use.
Attribution-NoDerivs (CC BY-ND)
Allows someone to redistribute or commercially use your work as long as it isn’t altered and still credits you.
Attribution-NonCommercial (CC BY-NC)
No commercial use allowed, but your work can be altered as long a credit is included.
Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)
Again, non-commercial use, but allows altering with a credit and identical license for their new creation.
Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)
Enables sharing with a credit, but no commercial use and no changes allowed.
Public Domain or CC0
This choice essentially opts you out of copyright protection, so footage (or any content) can be used for anything and by anyone.
Avoiding Logos and Trademarks When Filming
If you film someone else’s logo or trademark, you need permission to show it, even if it’s just on a billboard in the street. It’s the reason many stock footage creators go to great lengths to create good street scenes that can be sold, because it’s darn hard to film these days without getting someone else’s brand in the shot accidentally!
This also drags us back to fair use. If you’re filming and you happen to accidentally catch a logo on something as you pass, yes it probably does fit under fair use, but you need to consider everything previously discussed. It’s probably better to avoid it entirely where possible.
If you’re uploading footage to a stock site, like Envato Market or Envato Elements, this is something that will be covered in the terms and conditions of the uploading, so make sure you’ve covered your bases.
Many broadcasters, won't show something that is considered to give undue prominence to a brand or product, even if that's entirely accidental.
Filming in Restricted Locations
Another falsity that rears its head from time to time is the notion that land that the public has access to is always public land. Filming and photographing in privately owned places like transport stations and shopping malls is usually forbidden, and you can find yourself in trouble if you ignore those rules. It’s also the case (here in the UK) that certain historical properties don’t want you using them commercially, and so if you were to film on their land without permission, when they’ve said not to, they’d be within their rights to take you to court. You’re usually fine with filming on actual public land (or common land) but it’s always wise to check who owns what before you plan a shoot.
Did you know, for example, that filming or photographing the Eiffel Tower by night isn't allowed? The light show is considered an artistic work with its own copyright and so it's actually that, rather than the tower itself, that you're not supposed to show.
Filming people who are in crowds or who are in the background of a scene, has become more complicated in some countries since the introduction of GDPR. It’s really another article in itself, but in essence the law changed to say that an (identifiable) image of someone is now considered data in the same way as their name or address, and so there are extra things you need to think about now before you include anyone ‘accidentally’ in your footage – they have the right to ask to be removed, which could cause you real problems if you’ve already sold that footage.
How do YouTubers Get Away With it?
This is the argument I have to negotiate
the most with people who don’t work in media. If ‘such and such’ is doing it
and getting away with it then it must be okay. When I’m done screaming noiselessly into the
void, I offer the following take:
Firstly, just because someone else is doing it doesn’t make it okay, and if you’re a professional who wants to make a legitimate income and be respected in the industry, appropriating someone else’s work and using it for commercial gain probably isn’t going to win you many fans. I think the word ‘professional’ is often the key here, and it generally goes hand in hand with ‘commercial.’
There are lots of enthusiasts making fan videos about their favourite things, be that film, music, celebrities and so on. In doing that, they generally use any number of clips, music and assorted bits that will be someone else’s copyright. Is that legal? No. Is it okay? Well… big companies have come to understand that hitting their supporters with injunctions for fan art/videos is not the best look. Sometimes, it’s actively encouraged, in fact.
The major caveat with this sort of thing is that it’s non-commercial, and YouTube have even gone so far as to flag up videos using copyrighted material and attach adverts to the video (if the owner of the material has marked that action as acceptable) as a means of recouping some of the revenue potentially lost by someone else using their work. They can however, ask for it to be removed.
‘Fans’ who move into commercial use without a license, and catch the eye of large companies, can expect to be brought down to earth with a costly bump. Disney in particular, is no stranger to making an example of copyright infringement.
A bit like ‘fair use’ arguments covered above, the whole area is a minefield and if you’re a professional filmmaker, or even someone who wants to use music or footage fairly, then just avoid this entirely: patiently explain to your client why you can’t put their favourite pop song over their commercial video without paying a huge fee.
You can dig down into copyright and licensing until it starts to feel like Inception, layers upon layers of rules, ifs and buts. Generally, though, it’s down to common sense and professional courtesy. If you didn’t make it, ask the person who did. If there’s a fee to pay to use something, accept that or leave it out. If you have a little voice in your head saying ‘it’ll probably be okay’ or ‘I’m sure I’ll get away with it’ then it’s probably wise to take another look at what you’re doing and whether it’s really okay. As we often say in our office, if in doubt, leave it out!