A copyrighted work such as a billboard, logo or music (including ring tones) may get captured unintentionally in the background of a video especially if filming is done on the streets or in a public space.
Section 30.7 of the Copyright Act allows inclusion of a copyrighted work in another work provided that the inclusion is incidental and not deliberate. Based on previous court decisions, “incidental” means an activity that is “casual, inessential, subordinate to a principal activity, or merely background.” What is "deliberate" applies to the inclusion of the content, not the activity or filming itself.
You may also film buildings and sculptures permanently situated in public places under Section 32.2(1)(b)(ii) of the Copyright Act.
Considerations:
Being able to use an excerpt of a copyrighted work would be helpful if you need to review or critique the material. For example, if your film reviews the portrayal of minorities in films, you may want to include relevant film clips to provide accurate depiction. If you are reporting on a speech, it would be helpful if you can include part of the text or video of the speech.
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An example of this use is including film clips from the different pride parades for a documentary about their history in North America.
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Music is often an integral part of a film, adding to the mood or atmosphere of scenes. For example, the right background music can heighten audience's tension in the scenes leading up to a murder in a horror film.
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An example of this use is including music of artists or videos of artists playing their music in a documentary about a local indie music community.
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If the tattoos of an individual would be shown prominently in your film (e.g. the interviewee has a recognizable tattoo), then you would need to consider the copyright implications.
Copyright applies to all original literary, dramatic, musical or artistic works that are fixed in a "tangible" format. Tattoos can qualify for copyright protection especially if they are original designs created by tattoo artists. Copyright belongs to the artist of a tattoo, not the individual that is wearing the tattoo, unless there is a contract stating otherwise.
There have been several copyright lawsuits involving tattoos featured in films, commercials and photographs. For example, Warner Bros was sued by S. Victor Whitmill for using the tattoo he created for Mike Tyson on another character in the Hangover II movie. The case was eventually settled outside of court.
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