Harbottle & Lewis partner Andy Millmore outlines the need for consent when using third-party material in film.

Andy Millmore

You should usually assume that you will need consent if you are going to use other peoples’ materials in your film.  Obtaining a licence is the only certain way to be sure that you won’t subsequently have any legal problems.

However, there are in fact a number of situations in which consent may not actually be needed in the UK to use someone else’s copyright materials. 

The brief discussion which follows looks only at copyright implications.  You should bear in mind that there are other IP and similar rights which exist and which might give rise to difficulties. 

In particular, trade mark law which protects brands and other trade mark registrations, and privacy/publicity/defamation laws, which control how you can use someone else’s image and reputation.  Closely related to copyright are the so called “moral rights”, which in many cases entitle the creators of copyright works to be identified, and also to object to derogatory treatment of their works.

So far as copyright is concerned, there is only an infringement if there is a “substantial reproduction”.  This is a quality and not quantity test, but it is possible that a very small use of a part of a work may not be sufficiently “substantial” even to amount to an infringement in the first place.  But if there is enough of a reproduction for copyright infringement rules to engage, then the following potential defences also exist:-

  • Copyright in a work is not infringed by its “incidental inclusion” in a film.  This can sometimes protect true (and unintentional) “background use”, although it is unlikely to protect where something has been deliberately included, and statute (the Copyright, Designs and Patents Act 1988) specifically provides that the exception does not apply to musical works that have been deliberately included, regardless of how prominent they are.

  • The statute also includes a number of situations in which it is not an infringement to use a work if the use falls within certain specified categories.  These are generally referred to as “fair use” defences, but you should note that “fair use” is actually a US copyright concept and term, and in this country the analogous concept is not as broad, and only applies to particular uses as set out in our statute, as long as that use also amounts to “fair dealing” with the work. 

    What is “fair dealing” will always depend on the full context, and factors such as the amount and the importance of the material being used, and whether or not the new work competes commercially with the original work, will be important factors.  “Fair dealing” exceptions include the following:
  1. Fair dealing with a work for the purpose of criticism or review can be acceptable, as long as it is accompanied by  a sufficient acknowledgement identifying the title and author of the original material.  The criticism in fact need not be directly about the work itself, and can extend to cover “criticism” in a broader sense.  This can be helpful for documentary works, as can the exception for news reporting.

  2. Since October 2014, there has been an exception for providing quotations from copyright works, provided again that the use is fair, that sufficient acknowledgement is given, and that the extent of the quotation is no more than is required by the specific purpose for which it is used.

  3. There has also since the same date been an exception for fair dealing with a work “for the purposes of caricature, parody or pastiche”.  European law has given some guidance on how this provision will be applied, explaining that a “parody” has to be something which is sufficiently close to the original that it is recognisable, sufficiently different that it is clear that it isn’t the original, and to have been produced for the purposes of “mockery or humour”.  On its face, therefore, this is a defence which could be broad in its application, and we are currently waiting to see how it is applied through case law.

To repeat, most producers will adopt a “safety first” approach (especially given the need to warrant compliance and the possibility of international distribution, where rules may be different), but these are potential exceptions and defences which can be considered further where necessary.

Andy Millmore is a partner at London-based law firm Harbottle & Lewis