Guide to General Remix Rights

Materials to Mix & Mash

On the resources page you'll have found links to many sites dedicated to archiving public domain material and works published under Creative Commons (CC).

Here we'll look at two other sources of raw materials for your take on 'Britannia Rules, Britannia Sucks': stuff that you find yourself whose copyrighted term has expired, and extracts from protected works which can be used under the rules of 'fair dealing' for purposes of news reporting or review. The guidelines below are based on the law in the United Kingdom where the films will be stored and exhibited, but of course this is the interweb, so international problems can arise as well. This is a guide not intended as legal advice. In any case, this is just general information and if you have any tricky questions you should see a lawyer.

A. The Public Domain

These are works whose copyright protection has expired and are thus available to be used freely. Due to changes in the law you need to know what year a work was published to determine when the copyright term has finished. In addition, there are variations depending on the nature of the work: film, sound recording, book, photo etc. We know this is complicated, but if in doubt use CC licenced material you can find in our resource section.

Films:
Films made before 1945 are free to all. In 1998 copyright protection was extended to 70 years after the death of the last author (director, music composer, writers of (i) the screenplay and (ii) the dialogue) for all works still protected somewhere in the EEA (European Union plus Iceland, Liechtenstein and Norway) on July 1st 1995. Books, photos and artworks are also protected for the life of the author and seventy years.
Music:
There are several distinct rights in any song; the lyrics and the composition are protected for life plus 70, but the copyrights in the sound recording and performance are shorter: fifty years after recording or release to the public. Thus works will only be available where both the composer/author died prior to 1937, and the sound recording was made before 1957
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B. Exercise Your Rights

Fair Dealing “The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause.”
The Chicago Manual of Style

Creative practice is stifled by copyright laws, something which CC and copyleft are trying to change. Multi-million pound damage awards against musicians sampling James Brown (RIP) are one aspect of this but a related, more pernicious, effect of all this copyright-talk is self-censorship. This is the internalization of the idea that we can't do anything with a copyrighted work without permission or 'clearance' - and that's not true; there are a wide range of exceptions permitting uses in education, archives and libraries, as well as those falling under the rubric of 'fair dealing'. This last category is key for mixers and mashers, as it means that in some circumstances the images that constitute the visual environment can be recycled, critiqued or documented. Appropriation under fair dealing has consequences for how the work should be licenced, and we'll return to that at the end.

The foundation of the exception is fairness, something which the judge determines based on a subjective appraisal of the user's conduct and a series of more objective criteria: the nature of the work copied, the amount taken, the commercial or non-commercial nature of the new work and the damage done to the market of the original. Adding a musical track by the Beatles to a video of you dancing in front of the mirror and uploading it, for example, is not fair dealing. From what follows it will be clear that documentary work receives more latitude than narrative fiction. Unfortunately there is no general exception to protect transformative uses of recombined materials as such, so what is used should always be directly relevant, rather than being present simply for aesthetic charm or as part of a montage etc.

News:
If the piece is an intervention or commentary on current affairs you can use germane pieces of news footage to illustrate the point, if there is a logo, leave it in the frame, as that will satisfy the requirement mentioned below to acknowledge the original author. Take as little as you can but as much as you need. Avoid reproducing photos that 'scoop' a current event; these images are highly protected because of the competition between news agencies.
Criticism & Review:
A brader exception relates to criticism and reviews. These two terms are interpreted broadly. Review can mean an overview of a field, such as the recent film by Sophie Fiennes and Slavoj Zizek on cinema and psychoanalysis, 'The Pervert's Guide to Cinema'. Scores of clips were used, generally around thirty seconds long, to illustrate Zizek's analysis. What the law requires in this case is that the taking form part of a logical argument, a wider design that demonstrates that you're not just repackaging someone's work so as to piggy-back on it.
Over the years a mistaken idea has spread that there is some pre-defined amount that one can use whilst remaining within the law, ten seconds of a song, thirty seconds of a film - this is a myth. “Substantial part” is how the law charcterises the amount necessary to constitute infringement, and it can be very little; music sampling infringements can revolve around a couple of bars.
But where the use really is fair you can take a lot more than the mythical thirty seconds, as demonstrated by the case of a Channel Four production about Stanley Kubrick's “A Clockwork Orange”. Criticised for its violence when released in 1972, Kubrick withdrew the movie from exhibtion and never allowed it to return to circulation in the UK. Twenty years later a production company made a documentary comparing the level of violence therein with that of contemporary cinema. Despite repeated requests, Kubrick refused to be interviewed, and ultimately they made the program without his cooperation, incorporating numerous segments of the film to illustrate their thesis. In total the clips amounted to twelve minutes (eight per cent of the movie) in a program of thirty minutes. The use was successfully defended as a fair dealing necessary for the purpose of the program. Criticism may be targeted either at the work itself or the institution behind it - publication of a private circular from the Church of Scientology was allowed even though the object of the critique was not the text as such, but the Scientologists.
Films not yet available to the public should not be used, so resist the temptation to incorporate samples of new movies that you might find 'lying around' on the web (!).
Acknowledgement:
The law requires there be “sufficient acknowledgement” of the author where work is being used under fair dealing. In the case of "The Pervert's Guide To The Cinema” this was accomplished by a title accompanying the begining of each clip, providing the names of the (i) film, (ii) director and (iii) the rightsholder, as well as (iv) the year of its release to the public. If you're using an advertisement, add the name of the agency.

C. When the Remixing is Over...Licensing Considerations

Use of proprietary materials has consequences for your choice of licence for a work, and poses particular problems regarding derivative works. Successful claims of fair dealing are based on the unique context in which the appropriated materials are placed, and do not provide a carte blanche for subsequent users. CC licences are not magic wands that can be waved over fairly dealed materials to liberate them from their inherently proprietary nature. There is a danger of misleading people into the belief that the materials are free to be reused in general, thus landing themselves into unforeseen legal woes. CC licences apply to the work 'as is', which is to say that they do no provide any warranty to the user, leaving them liable if the rightsholder gets litigious. Most users do not understand this. Thus it should be made clear that only sections of the work other than those involving fair dealing are covered by the licence terms. All work in this competition will be licenced under a BY-NC licences enabling sharing and remixing of the content.