Using archived materials: Big legal mistakes and top tips to avoid them
Whenever anything like a photograph, an article, a video or a newspaper article is created, copyright arises automatically and is owned by someone. The copyright owner has the right to control how the work is used.
Generally, unless the copyright has expired or the use is permitted by law, if you want to use material for you project you will need to obtain written permission from the copyright owner.
Here are 5 common mistakes made by producers and our top tips to avoid them:
MISTAKE ONE: “It’s so old that copyright must have expired”
The standard term of copyright in literary, dramatic, musical and artistic works is 70 years from the end of the year following the death of the author. However, there are many variations to the rule depending on the date created, the category of copyright, if its crown or parliamentary copyright or if it’s an anonymous works. A lot of old records are still protected by National Archives for example. Always check the copyright position and never assume that there’s no risk if it’s old, as it will vary depending on a case-by case basis.
MISTAKE TWO: “What’s the worst that can happen?!”
If you use a work without permission you might be infringing copyright and possible other intellectual property and related rights (such as moral and database rights). This could result in legal action against you by the copyright owner, an injunction against the project moving forwards, legal action from contractual third parties for breach of your IP warranty to them and invalidation of errors and omissions insurance. So, pretty much the worst…
MISTAKE THREE: “I’m only using a little bit of it, I’m sure that’s fine”
There is a substantiality threshold of up to 5%. However less that that quantity could easily be substantial if it is qualitatively important and this is difficulty to assess with any certainty. Don’t take an unnecessary risk.
MISTAKE FOUR: “This must fall within some fair dealing exception as it’s a topic of public interest”
The most useful exceptions to copyright are called ‘fair dealing’. There’s great debate about this but ultimately, if you are standing to gain financially from your project, the exceptions are not likely to apply.
MISTAKE FIVE: “I’ll make the film and then worry later about rights”
THE most common mistake we see is rights clearance being left until the very last minute. Rights clearance can take a long time and can be expensive so make sure you factor cost into your budget. Be prepared for a scenario whereby the rights owner says no, imposes restrictions and/or asks for a licence fee to be paid. Allow plenty of time and have a plan B in case you don’t reach agreement. It’s far cheaper to get the agreement in place than it is to defend yourself when the rights holder takes action against you and you have to re-edit.
Our advice - next steps:
- assess whether the work is still in copyright
- identify and trace the present copyright owner
- ask for permission to use the wortk
- acknowledge the copyright, give credit as appropriate to the author, the rights owner and the custodian, and pay any associated fees In many cases rights clearance is handled by central licensing and rights organisations (eg Newspaper Licensing Agency, PRS for Music, Copyright Licensing Agency). These organisations represent the rights owners, issue licences and collect fees on their behalf, and distribute the income to them. You can obtain information about other licensing bodies from the British Copyright Council.
For a really clear but more detailed explanation including a very helpful flowchart to help you determine the duration of copyright please see this https://www.nationalarchives.gov.uk/documents/information-management/copyright-related-rights.pdf
How we can help
Paper & Chain can draft a simple and clear licence agreement for you to ensure you have the right to use the material in your project without infringing anyones rights. Please get in touch to find out more about how we can help and our fixed fee offering.