The Difference Between Rights and Wrongs: Navigating Stock Footage Clearance – From the myth of ‘fair use’ to the peril of libel, the pitfalls and policies of leasing footage

Sanitariums throughout the world are populated with producers who have delved too deeply into the arcane world of stock-footage rights - with good reason. Few things in the world are as complicated as the legal issues connected to the average strip...
March 1, 1998

Sanitariums throughout the world are populated with producers who have delved too deeply into the arcane world of stock-footage rights – with good reason. Few things in the world are as complicated as the legal issues connected to the average strip of celluloid.

A comprehensive survey of footage leasing would take up more space than many libraries themselves, but here are some basic factors producers should be aware of when incorporating someone else’s work into their own.

Whose footage is it anyway?

Before a producer need be concerned with which headaches might accompany the use of a clip, a seemingly elementary factor should be determined: Does the library own the copy it’s offering you?

Steven Selznick, a lawyer at Blaney McMurtry Stapells Friedman, Toronto-based specialists in entertainment and intellectual copyright law, explains the deal must be built on a properly represented piece of film. It has to have been acquired legally, and through traceable sources.

‘There should be a representation in their agreement to you, saying that, although they do not represent and warrant what you do with it, they do represent and warrant what they have, they legitimately have,’ says Selznick. A producer won’t be protected in legal proceedings if the company from which the footage was leased didn’t have the right to offer it.

‘A film has two elements,’ explains Selznick. ‘There is the tangible stuff, like the actual copy of the film, and then there is intellectual property, which is the various intangible rights which really give it value.’ Physical possession is simple – the library either owns it or not. It’s the other, ethereal aspect which complicates the transaction.

Watching your intangibles

Intellectual property is a unique concept in law. Most people wouldn’t dream of selling a house with a clause stipulating it could never be painted without the builder’s permission, but that’s what intellectual property law does. Intellectual property differentiates between rights to the physical piece of work, and the rights of the creator. Just because you went to Wal-Mart and bought a Simpsons video doesn’t give you the right to duplicate or edit it into another work. It only gives you the right to sell that particular copy after you’ve memorized the jokes.

International intellectual property law gives creators ‘moral rights’: the right of paternity (to say you created and have your name on a work); the right of anonymity (to have your name removed); and the right of integrity (the option to control restoration and renovation of the work if it impairs your reputation). These rights are usually waived when the creator gets the cheque, but it’s up to the producer using the footage to find that out.

‘There are a lot of people who are offering footage with a contract which basically says nothing,’ explains Joe Lauro, president of New York-based stock-footage library Historic Films. ‘It says that they’re giving you the material, and that’s it. In fact, in some cases, it says the user has to indemnify them. Producers have to make sure they get a contract, they’ve read it and understand they’re getting rights from someone.’

The clearing of intangibles is what puts filmmakers into straitjackets. In most cases, the rights involved in the creation of the original piece of film have to be addressed when the clip is re-used. Does the talent agree to the secondary use? Do they have to be compensated? What about the musicians? Was the new use of locations and recognizable buildings (like the Empire State Building) in the image authorized? Are there any advertising posters or pictures of Wayne Gretzky in the shot? The list of things which might require clearance is extensive.

While rights related to visual arts are relatively straightforward (if you can see it or it affects what you see, you probably have to pay for it), music presents the biggest headache. Performers and composers are involved, as well as parts of work which are not immediately obvious.

Dealing with music clearance generally falls entirely in the lap of the user. Kent-based researcher/rights agent Rosalind Bentley has found this to be a source of frustration. ‘We were having to clear old Palladium shows, and while we could easily get a hold of the print and transfer it, they didn’t have all the paperwork to provide to us that would give us all the names of the artists or the music involved,’ she says. ‘They didn’t have the cue sheets.’ Most producers usually run footage stripped of the original soundtrack to avoid the issue. (You have the rights to remain silent… )

Exposing yourself

Exposure plays a large role in a footage agreement, radically affecting pricing. British Pathž, for example, offers some footage for as little as £8 a second for u.k. tv rights, but might charge £60 for international rights to the same clip.

The greater the exposure, the higher the price, so producers should be specific. Consideration should be given as to whether they want world rights, cable and satellite rights, home-video rights, or even trapped-audience rights (planes and coaches). ‘If they’re taking a production on,’ points out Selznick, ‘the last thing a distributor wants to hear is that you can show this whole thing on television, but you have to cut out that one clip.’

To avoid this, precision is required from the outset. ‘Be very specific in rights,’ he advises. ‘Don’t just ask for the synchronization rights for 12 feet of video; say: ‘I want the license for the 12 feet, and I want to be able to use it in all of the following things, and for all purposes.”

Exclusivity is also a concern for some producers. Under normal circumstances, no stock-footage company will offer exclusive use of footage.

The extent of exclusivity is in direct proportion to the amount of money with which the producer is willing to part. When The Beatles were working on their recent anthology, they bought all the footage of themselves they could find. Few filmmakers have pockets so deep. ‘Everything is a matter of money,’ explains Lauro. ‘If someone is going to pay me a rate that gives me the incentive to take it off the market for a year, or the term of the contract, we’ll do it.’

Historic Films struck a deal with Van Halen for promotional material on a recent tour. The band wanted a black-and-white Movietone sequence of Captain Cannonball Frank Edwards, a man who made a living catching a cannonball with his stomach. Historic had the footage, but wanted to be doubly sure they could legally offer a comprehensive rights package. They searched Edward’s estate, checked all the countries where dead celebrities can retain rights and set up an account in escrow under his name for a year, so any claims could be legally addressed.

Where do you think you’re going with that clip?

How a clip is used also affects which rights need to be cleared. Unlike their counterparts in Europe, North American documentary producers are given wide latitude in their work, but that designation has boundaries. While documentaries and educational films enjoy special privileges, there is a growing, hazy region of which producers should be aware.

‘There is a real difference between something which tells a story, from something that is sheer entertainment,’ explains Jessica Berman-Bogdan, a New Jersey-based rights-clearance/research agent. Shows like Entertainment Tonight are informative, but are considered entertainment, and thus have to clear clips with studios, undertaking whatever extra cost that entails. Crossing the line into entertainment means increasing the cost of footage exponentially, and increasing the number of rights to be cleared.

Studios are careful for a simple reason: in a rights-infringement suit, the plaintiff will probably compare the bank accounts of producer and studio, and then go after the studio. Rosalind Bentley observes that, since the majors tend to be gun-shy, ‘they ask huge sums of money, which makes all of us in Europe turn around and go away most of the time.’

All’s fair in love and docs

There is a term native to North America which documentary producers use to separate themselves from their commercial cousins: ‘fair use’. Fair use, as most u.s. producers understand it, is the freedom to use clips in an educational or documentary film, without having to clear most intellectual rights. In the u.k., there is a similar concept called ‘fair dealing’, but it is limited to review purposes (such as tributes), and is not a protection policy.

Selznick cautions producers against complacency. ‘There is no difference in the common-law rules which differentiate between what kind of a film producer you are.’ What keeps the lawsuits from flying fast and furious are financial basics. He points out that the realities of the business are such that ‘suing someone when your rights are violated is often a pyrrhic victory, because if no damage can be proven, nor loss sustained, then getting a judgment you can enforce and collect upon isn’t going to do you any good… Sometimes you have to send a message though.’

Rick Gell, president of New York’s Second Line Search, also recognizes this. ‘People make the mistake of thinking that because it’s a documentary, they can just use things. That’s not true. People take the concept of fair use and want to use it as a blanket policy to apply to any piece of footage they don’t want to go out and pay to get the rights to. While that would be nice… ‘ He trails off, contemplating a world without nagging rights issues.

Gell outlines a few guidelines for fair dealing: the clip has to be very short; it cannot diminish the value of the original work; and permission probably wouldn’t have been given had it been asked for. That hardly resembles a rock-solid protection policy.

‘You can’t just go out and show the last ten minutes of Psycho, and ruin the end and its value in the marketplace’ explains Gell, ‘unless you have a really strong argument that you are commenting on Alfred Hitchcock’s production in a way that was critical, educational and would have ultimately been turned down by the rights holder.’

Getting to know a lawyer the hard way

Rights issues aside, producers should also be wary of libel. ‘It’s one thing that you may have produced a film clip in the original context of a production that is quite harmless,’ explains Selznick, ‘Yet, if you take a clip of it, and cut it into your production to make a poignant statement – maybe to ridicule someone who appears on the screen, or to make a point about someone’s character – that statement, taken out of context, may be defamatory.’ Obviously, natural-history producers get a break on this one, but those working with celebrities and politicians should be wary.

Selznick cautions that libel is difficult to defend. ‘All they have to demonstrate is that, if you showed the film to the average person – without having to prove whether or not it’s true, but on the plain and ordinary words alone – someone would think you made a defamatory statement.’ Producers don’t have the same freedom as writers. In print, a party who feels libeled has the opportunity for fair response the next day, or in the next issue. In film, commentary is sealed, with no such opportunity.

Public domain

Rights issues and cost are the main reasons producers are turning to public-domain material in North America. In Europe, public domain isn’t an issue, as almost everything is under copyright. Most of what was previously available was returned to copyright with the inception of the European Economic Community. In an attempt to standardize copyright on the continent, the stricter German and French laws were adapted for all Europe. Copyright now applies 70 years after the creator’s death, as opposed to the 50 which had been standard.

‘It’s a big surprise for Americans,’ points out Bentley, ‘because they have public domain in their archives. What a lot of us in England do now is employ an American researcher to go to the national archives to find footage which we could find just as easily over here, but we would have to pay for.’

Rights and their costs have forced many, especially those working for cablecasters, to the public archives. ‘There’s no question that public domain is the rockbed of documentary production at this point,’ observes Gell. ‘It makes it possible for many of the programs you see on cable to take place. They couldn’t pull it off at the fees they’re getting paid without having a large percentage of public domain built into their programs.’

That amount of competition for a non-exclusive source of footage does cause some problems. ‘You see the same kind of stuff turn up on the cable stations, because in many cases they don’t have the funds to do a bang-up job, or know where to go,’ says Berman-Bogdan. This fiscal reality will ultimately hurt programming, as the same footage shows up repeatedly in cost-cutting attempts.

Repeated use of footage leads to programs which appear to duplicate others, and might have some producers casting an eye towards copyright-infringement laws. In most instances, even if this concern is valid, they don’t have a case. Copyright only extends to the manifestation of an idea, not to an idea itself. In other words, even though a film might seem similar to yours, it’s doubtful you have legal recourse unless you can prove the other filmmaker had access to your film and knowingly copied it. It’s described legally as the right to independent invention. There are thousands of films on the jfk assassination, for example, and most use the same motorcade footage with similar commentary. It would be almost impossible to prove copyright infringement against any of them.

Pay now, or pay later

Stock usage doesn’t have to be complicated. According to Selznick, ‘If a producer has diligent, regular procedures, clearing stock footage should be no more difficult than going through your production, saying, ‘Do we have location releases for all the buildings we shot in? Do we have extra releases? Do we have all the releases for all the background signs? Just be cognizant that it’s an issue.’

Foresight can be critical. ‘I think more deals are lost because when I get a call from the legal department of some big studio, and they say: ‘Steven, this is all fine and good. This is a matter of socially redeeming importance and it’s equally important we bring this message to the world. But… can we make a theme park ride out of it, and did we clear all the rights to use the images at Disney World? Do they have the rights?’ If I say no, they’ll say, ‘let’s forget it then.”

There is plenty of help for producers who don’t feel up to the task. Agents are available internationally who will do rights and film research, and, for most producers, they make sense, financially and legally. For an average cost of us$200 per day, agents will find footage and do the rights searches required. That cost obviously doesn’t include the price of the footage itself, or whatever fees are required to clear the rights, but it is good insurance against possible surprises later on.

Clearance is a lot easier and cheaper if it’s done beforehand. Once a film is made, the producer has lost bargaining power. The last call you want to make is to the head of Paramount, explaining how you borrowed five feet of film to finish your documentary – which just happened to win an award at an international festival.

It’s calls like that which put producers in sanitariums.

It’s a Wonderful Lawsuit

Most television viewers grew up watching It’s a Wonderful Life a dozen times every Christmas. That was before someone looked into the copyright. It seems that, while the footage has become public domain, the story is still under copyright. You can now freely show George Bailey learning the importance of life from his guardian angel, Clarence – only without the benefit of dialogue. That you have to pay for.

Justifying their existence: Agents

According to New Jersey-based agent Jessica Berman-Bogdan: ‘Every time you go to a library, you are accessing a minimum number of charges. If I buy from a library, I usually end up paying for a 15-30 second minimum. So, obviously, you don’t want to have to make deals with 20 different libraries because you’ll end up spending a fortune. The idea is to have someone who knows which library will cover the most bases.’

About The Author
Daniele Alcinii is a news reporter at realscreen, the leading international publisher of non-fiction film and television industry news and content. He joins the rs team with journalism experience following a stint out west with Sun Media in Edmonton's Capital Region, and communications work in Melbourne, Australia and Toronto. You can follow him on Twitter at @danielealcinii.