Someone recently questioned whether I had permission to use a 10-second clip from the movie “Dunkirk” in my video “Why words are not enough”.
The answer is No, and here’s why.
I am relying on the interpretation of Fair Dealing (the equivalent is Fair Use in the USA) which provides exceptions to copyright law to allow for free speech. Fair Dealing doesn’t tell you what you can or can’t do, it just provides scope for you to defend yourself if the owner of the copyrighted material decided to sue you. Just like many other laws, it is open to interpretation which is why legal cases involve hours of discussion between very expensive lawyers.
You may think that makes it too uncertain and you won’t want to use movie clips. Fair enough, but if you do want to use movie clips to make a point or illustrate your content, an understanding of Fair Use/Dealing will help you decide whether you can get away with it. If you think you won’t, my advice is don’t do it!
Here are the general criteria which Fair Use/Dealing will consider in the defence of a copyright infringement. It will help you decide if what you are planning to do would cause the copyright owners to react unfavourably.
- Purpose and character of use. If your purpose was to report, educate, criticise or review then inclusion of the copyrighted material may be justifiable. If it was for commercial gain such as including some else’s material in your own material you then sold, it would not be acceptable.
- Amount and Substantiality. This has two words because sometimes a small amount of the material can contain a substantial or significant proportion of the intellectual or artistic content. A few seconds of a movie clip that doesn’t include a plot spoiler would probably be acceptable.
- Nature of original work. The courts will be more likely to protect something of an artistic nature, compared to something which was created for commercial gain.
- Impact on the market. This covers the impact of your use of copyrighted material on the revenue of the originator of the material. Have they lost money because of what you have done? If you have ticked the first three boxes above, the answer is probably not – in fact it is often the reverse because if you have attributed the clip it can help promote the original work. If you are using content already in the public domain such as from a movie trailer then you are on even safer ground.
I am not a copyright lawyer and I am relying on information shared by actual copyright lawyers, the Gov.uk website, Wikipedia and other content creators (links below). If you want to be sure, don’t rely on my interpretation, please check it out yourself before publishing.
In the event that your content does cause an adverse reaction from the owner, the first thing they are likely to do is to ask you or your hosting platform (Youtube, Vimeo etc) to take it down. They will probably comply instantly, and you will get a notification. If you want to appeal you can invoke Fair Use/Dealing and then you will be into a legal argument which could get expensive.
My advice is – be aware of what the scope of Fair Use/Dealing covers; decide if what you want to do can be defended within Fair Use/Dealing and only publish if you are fairly sure you are acting within what is allowable. If there is any hint that the copyright owners want you to remove the content, then unpublish it immediately, it’s not worth the expense of a fight.
There are thousands of videos published and watched daily which contain copyrighted material, included because they add value to the video in some way. There is no need to avoid using copyrighted material completely but when you do, make sure you follow the guidelines around Fair Use/Dealing.
So let’s carry on making great videos!
Gordon Firemark, Entertainment Lawyer https://youtu.be/DlIXcqnVM50
Tara Hunt, content creator https://youtu.be/SzkyYukW8G0