Copyright Considerations

Ideas and concepts are free for everyone to borrow and use. In fact, copyright does not protect ideas, but only the expression of ideas. For example, the idea of making a ‘battle royale’ film, where characters are forced to fight against each other until a sole survivor remains, is not protected. What is protected is the way in which that idea is expressed, for example in the films Battle Royale (dir. Kinji Fukasaku, 2000) or The Hunger Games (dir. Gary Ross, 2012), or in the popular video games PUBG and Fortnite. This fundamental principle – known as the idea-expression dichotomy – can be further explored through the Copyright Bites resource.

If you want to reuse a work protected by copyright as a whole or any ‘substantial part’ of it, in principle you need to get permission from the copyright owner. This means identifying who owns copyright in the work you want to reuse and get a licence from them. However, if you intend to include various different works in your video-essays (e.g. clips from different films), the process of getting all relevant permission would likely be long and expensive.

There are licensing schemes that allow you to use copyright protected content in certain ways. For example, most UK Higher Education institutions hold the Educational Recording Agency licence, which allows teachers and students to record and use TV and radio programmes for educational purposes. If you study at a subscribing institution, you can use BoB – Learning on Screen’s on demand TV and radio service – to access over 2.4 million broadcasts. Also, a growing number of UK institutions have signed up to the Archives for Education licensing scheme, which allows student filmmakers to reuse clips from 142 documentaries in their projects.

Creative Commons (CC) are open licences that allow everyone to reuse videos and other materials for free, under certain conditions. This means that if you find a work that is distributed under Creative Commons, you can use it freely, but you need to check the terms of the licence. For example, all CC licences require ‘Attribution’, meaning that you have to credit the authors of the work you are using. Some also require ‘Share Alike’ (the work you create needs to be distributed under the same CC licence of the work you are using); ‘Non-commercial’ (you can use the work only for non-commercial purposes); and ‘No-derivative’ (you can’t modify the work). The following websites offer images, videos, music and books which are free to use under CC or other open licences:

● Wikimedia Commons – Images, sound and video: https://commons.wikimedia.org/wiki/Main_Page

● Incompetech – Music: https://incompetech.com/

● Flickr – Images: https://www.flickr.com/

● Unsplash – Images: https://unsplash.com/

● Wikisource – Books: https://en.wikisource.org/wiki/Main_Page

● Prelinger Archives (US) – Films: https://archive.org/details/prelinger

Copyright doesn’t last forever. In the UK, it generally lasts for the life of the author plus 70 year. After that, the work enters the public domain, meaning that everyone can use it for free. For example, Charles Dickens’ novels, Shakespeare’s plays or Mozart’s compositions are all in the public domain.

Films enter the public domain 70 years after the death of the last to die of the four following persons: director; author of the screenplay; author of the dialogue (if different); composer of the music specially created for the film. So if you want to find out whether a film is in the public domain, you need to identify those persons involved in creating the film and check whether they all died more than 70 years ago. This means that only a few old films are currently in the public domain in the UK. However, these include some landmark films such as Georges Méliès’ A Trip to the Moon.

It’s important to note that copyright law is territorial, meaning that different rules apply in different countries, so a work might be in the public domain in the UK but not in the US, or vice versa. For example, the Prelinger Archives listed above are a US resource and make films available based on US law. If you want to use a film from the Prelinger Archives in the UK, you should check that it is in the public domain under the life of the authors plus 70 years rule explained above. You can find guidance on copyright duration on the Copyright User website.

Works created by the US Federal Government are not protected by copyright, so you are free to use them. These include the NASA Image and Video Library.

UK copyright provides a number of copyright exceptions: cases in which – under certain circumstances and for specific purposes – you can use a copyright protected work without permission from the copyright owner. If you intend to include various clips from existing films in your video essays, copyright exceptions are probably your best option.

If you intend to use your video essay for research or study purposes only, you can rely on the exception for non-commercial research and private study. However, if you rely on this exception to use protected materials, you would not be able to use your video essay for commercial purposes, for example as part of your portfolio. Similarly, teachers can rely on the exception for illustration for instruction to use protected materials in their teaching for non-commercial purposes.

There are other exceptions that enable the creative reuse of protected works also for commercial purposes. You can find guidance on each of them below:

● Criticism or Review

● Quotation

● Caricature, Parody or Pastiche

Please note that relying on copyright exceptions is always a matter of risk management. Exceptions are defences that can be used if your use is challenged by the copyright owners, rather than rights to use the content. They are also based on ambiguous concepts such as 'fair dealing', which are not defined in the statute but by courts on a case by case basis.