Copyright Guide for Film Students

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:

• The inclusion of a copyrighted work is incidental and not deliberate. The work unintentionally captured should not be the main focus of the scene. Also, the particular scene with the inclusion is a necessary part of the film. For example, ring tone of someone's mobile phone going off unexpectedly or people that are wearing a logo t-shirt walking by during a shoot. 
• This exception is not available in the US copyright law, and there were several lawsuits in US related to inclusion of copyrighted works in films and artworks. However, the American Documentary Filmmakers' Statement of Best Practices in Fair Use suggested that incidental inclusion of a copyrighted work in a film may be fair use under certain circumstances.

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.

What can you do:

• Do a fair dealing evaluation to see if it applies in your situation; OR
• Obtain permission or a licence to use from the rights holder if fair dealing doesn't apply or is unclear in your use (note that obtaining permission or using an alternative resource is often recommended since there is a lot of grey area in fair dealing evaluation);

An example of this use is including film clips from the different pride parades for a documentary about their history in North America. 

What can you do:

• Do a fair dealing evaluation to see if it applies in your situation (note that obtaining permission or using an alternative resource is often recommended since there is a lot of grey area in fair dealing evaluation);
• Obtain permission or a licence to use from the rights holder if fair dealing doesn't apply or is unclear in your use
• Alternatively, use videos that are available in the public domain or under a CC BY licence, if there are any that would work for your needs;
• Find amateur videos created by individuals and groups on the Web. There is an increase of user-generated videos with the proliferation of cell phones. For example, if you are looking for footages of a public event, there may be useful videos online created by individuals that attended the event. You can contact the creator for permission to use their video. But beware of any infringing third party copyrighted content in these videos and potential legal issues (e.g. privacy); OR 
• Instead of film clips, consider whether using images would work for your needs since it may be easier and less expensive to obtain permission for images.  

What can you do:

• Do a fair dealing evaluation to see if it applies in your situation (note that obtaining permission or using an alternative resource is often recommended since there is a lot of grey area in fair dealing evaluation);
• Obtain permission or a licence to use from the rights holder if fair dealing doesn't apply or is unclear in your use
• Alternatively, use materials that are available in the public domain or under a CC BY licence, if there are any that would work for your needs;
• Use royalty free or rights managed licensed resources, if there are any that would work for your needs; OR 
• Some documentary filmmakers hire visual researchers (The website of Visual Researchers' Society of Canada has a directory for finding a researcher) to help them with locating the right resource and copyright clearance; these professionals have resources and licensing networks that can simplify and expedite the process for film makers. 

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.

What can you do:

• Obtain permission from the rights holder;
• Alternatively, use materials that are available in the public domain or under a CC BY licence, if there are any that would work for your needs;
• Use royalty free or rights managed licensed resources, if there are any that would work for your needs; OR 
• Hire an independent composer or music student to create original scores for your film. You may also need to hire musicians to perform the music for recording. Be sure to factor in the costs associated with hiring someone to create original scores and/or perform the music. 

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. 

What can you do:

• Obtain permission from the artist or rights holder - this is the less risky option given that the music will be a central part of a film; 
• Do a fair dealing evaluation to see if it applies in your situation;
• Alternatively, use music from other artists that would be willing to provide permission; OR 
• Keep in mind that it may be an infringement to get another musician who is not the original creator to play the music you need for filming unless fair dealing applies for the use. The same principle applies if you want to get another artist to create music with similar sound or style. 

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. 

What can you do:

• Consider asking the individual to cover up their tattoo (e.g. a long sleeve shirt for an arm tattoo) if you think the tattoo will be shown prominently in the film; 
• Blur out the tattoo during editing of a film;
• Obtain permission from the artist or rights holder. For example, it may be necessary to show a tattoo in a case where the tattoo is the distinctive characteristic of the individual you are filming; OR   
• Do a fair dealing evaluation to see if it applies for your use (note that obtaining permission or using an alternative option is often recommended since there is a lot of grey area in fair dealing evaluation);