- Almost all creative works are protected by copyright, which restricts how they can be used by content creators.
- The content creator is responsible for ensuring that all necessary clearances have been obtained for their content.
- Fair dealing is a defence to copyright infringement which allows copyright works to be used in certain circumstances, without being licensed.
- The types of fair dealing relevant to content production are for reporting current events; criticism and review; quotation; and caricature, parody or pastiche.
- Most sports footage cannot be fair dealt.
Content creators are responsible for ensuring all necessary clearances (copyright, trademarks etc.) are obtained for their content. When including the creative works of others, content creators must obtain prior consent from the copyright owner, normally by way of a signed licence agreement setting out the terms upon which the material in question can be used. Published material must not infringe any third party’s copyright or other rights. As the publisher, we are liable for all content on our sites.
If you have a copyright clearance query, contact your allocated Commercial Affairs Executive or the Commercial Affairs Rights Department at Channel 4 for general enquiries regarding music clearance matters.
If you encounter problems clearing footage or other material, or consent from the copyright owner is denied, you must ensure the material is removed from the content or, otherwise, refer up to the content lawyer/compliance advisor, who will access whether the material can be used pursuant to one of the statutory defences available in the UK (see below).
Where international sales or broadcasts are anticipated (or where content is to be made available on the internet), consideration should be given as to whether works covered by a statutory defence or exception in the UK need to be cleared for foreign jurisdictions, and if specific jurisdictional legal advice needs to be sought.
What is copyright?
The law of copyright exists to protect people's creative endeavours so they can properly benefit from their work. If such protection didn't exist and people were able to copy, sell or profit from another's work, there would be little incentive for people to create.
Copyright protects the form of the creative work, not the idea itself. It must be in tangible form, e.g., in writing or some other permanent form. There is no copyright in an idea (although it may be protected by the law of confidence – see also 'Privacy').
‘Copyright’ covers a collection of exclusive rights to do certain acts in respect of certain types of creative works. It extends to almost any work, the creation of which took some endeavour, and it arises automatically (there is no need for registration).
Virtually all creative works are protected, including literary works (e.g. novels, newspaper articles, books, letters, computer programmes); all kinds of musical works; dramatic works (e.g. stage plays, dance); artistic works (e.g. paintings, photographs, sculpture); sound recordings (e.g. CDs); all types of films; broadcasts (there is separate copyright in a broadcast, in addition to any copyright in the creative content); cable programmes; and published editions (the layout of a book or magazine).
The copyright owner has the exclusive right to do and authorise others to do the following:
- copy the work, issue copies of the work to the public
- perform, show or play the work in public
- broadcast it or include it in a cable programme service
- rent or lend copies of it
- make an adaptation of it or do any of the above in relation to an adaptation
Who owns it?
Copyright generally lasts for the creator’s lifetime plus 70 years. Generally, the first owner of copyright is the author of the work unless they have created the work as part of their employment – then the first owner of copyright will be the employer (either an individual or a company). In the case of a film, television programme or sound recording, the first owner of copyright is generally deemed to be the person or entity that made the arrangements for the making of the film or recording, usually the producer or production company although it may be the commissioning broadcaster.
If creative works owned by others are included in content without proper consent, there is likely an infringement of copyright. This is serious and may lead to content creators and the broadcaster being sued by the copyright owner for damages (money); an account of profits (profits arising from the infringement); an injunction (a court order prohibiting the continued copyright infringement); and/or delivery up (a court order forcing delivery of all copies of the infringing work to the copyright owner).
Copyright is not infringed by the 'incidental inclusion' of a copyright work in a film or sound recording. What is 'incidental' is open to argument and, if a work has been deliberately incorporated into content, it’s likely difficult to argue that its inclusion is incidental (the law specifically says that it isn’t in the case of musical works).
The incidental inclusion exception is likely helpful where there is a fleeting or partial glimpse of a copyright work within content, e.g., a quick camera pan across a poster on a wall or a billboard on the street; a brief or partial shot of a magazine cover in a doctor’s waiting room where filming is taking place; a snippet of a programme on a television screen in the background; or where there is some background music playing where you are filming, perhaps in a lift or shop (and it has not been deliberately added in the edit).
What is fair dealing?
Fair dealing is a statutory defence to an action for copyright infringement and describes several circumstances in which copyright works can be used (in full or in part) without permission from, or payment to, the copyright owner. Relevant considerations are (1) whether the alleged fair dealing competes commercially with the copyright owner’s exploitation of the original work (if it does, the defence will very likely fail); (2) the importance and amount of the work taken; and (3) whether the work has previously been published (if not, then it’s unlikely the use would be considered fair).
The most common type of fair dealing when making content involves the use of 'clips', e.g., clips of television programmes, online videos, films, advertisements and music videos. Although 'clips' are referred to throughout, all copyright works, e.g., literary, dramatic, musical, photographic, etc., can be fair dealt (although photographs cannot be fair dealt for the purposes of reporting a current event).
Where there is any wish or intention to ‘fair deal’, content creators must seek the consent and advice of their Legal & Compliance contact.
Fair dealing should not simply be used to save money on your clips budget. This would undermine the defence and you may be found liable for copyright infringement. However, if a copyright work is legitimately used under the fair dealing provisions, it’s unnecessary to clear any underlying rights in the work, e.g., if fair dealing a clip from the film Titanic, it would not be necessary to clear the soundtrack contained in the clip used.
Section 30 of the Copyright, Designs and Patents Act 1988 – as amended by the Copyright and Related Rights Regulations 2003 and the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 – sets out the main conditions that must be met to legitimately fair deal a copyright work.
How does it work?
The four most relevant types of fair dealing set out in UK law are as follows:
1. For the purpose of reporting current events
2. For the purpose of criticism or review
3. The use of a quotation from a copyright work
4. For the purposes of caricature, parody or pastiche
how do I get hold of the copyright work?
The following is applicable to all types/limbs of fair dealing:
The sourcing of the copyright work must be fair. You must not obtain it in any unlawful, devious or underhand way, e.g., obtaining preview tapes from a copyright owner by pretending that you intend to license clips.
If you have already signed a licence or if you have already begun negotiating a licence or licence fee, you may have created a contractual relationship where it would not be possible to 'fair deal'.
In such circumstances, you must seek immediate advice from your content lawyer/compliance advisor Legal & Compliance contact.
See ‘The Clockwork Orange case’ below for an example of sourcing copyright work fairly.
How much of the copyright work am I allowed to use?
You are only permitted to use a 'fair' amount of the copyright work. The clips should not be unreasonably long or frequent in use. Each clip must be justified in terms of its duration and its relevancy to the purpose it’s being used for.
See ‘The Clockwork Orange case’ below for an example of what may be considered ‘a fair amount’.
1. Fair dealing for the purpose of reporting current events
The most common way to fair deal under this limb is by using clips to report directly on a current event, e.g., a news report about the Oscars ceremony might show a clip taken from a US broadcaster's coverage of the awards to report who won ‘Best Actor’, or a broadcaster might use clips of another broadcaster’s footage of a natural disaster to report the fact that the disaster had taken place.
What constitutes a current event will depend on both the currency of the event and whether the event is genuinely newsworthy. Any clip being fair dealt needs to have some direct relevance to the current event being reported and not just a tenuous connection.
Also, the ‘current event’ must be current, e.g., the Oscars Ceremony may only have currency for up to 24 hours after the announcement of the winners. Accordingly, a broadcaster would not be justified in using clips of another broadcaster’s footage of the ceremony weeks later under this limb of fair dealing.
However, you may be able to fair deal clips of other events for longer, e.g., footage of the devastation caused by a major natural disaster could be fair dealt for some time, as part of ongoing news coverage into the continuing plight of victims. The ‘event’ would remain ‘current’ for some time because of ongoing developments.
You may also be able to use old clips when reporting a current event if the clip has sufficient relevancy to the current event, e.g., to report the death of a famous actor, a broadcaster may be entitled to use a clip of the actor receiving a Lifetime Achievement award (from years earlier); a clip of the actor talking about dying or about his impending death (again, footage which might be old); or possibly a clip from a film that the actor was particularly associated with (again, which may be a very old film).
In the case brought by the Duchess of Sussex against Associated Newspapers, the court found that the letter written to the Duchess of Sussex by her father was not intended for commercial publication, and therefore the use made by Associated Newspapers in copying large parts of it was not fair dealing. It was essentially for the purpose of reporting the contents of the letter and was not deemed a current event.
Note, you cannot fair deal a photograph to report a current event. Also, most sports material is excluded as it’s regulated under an agreement between the main broadcasters called the Sports News Access Code of Practice (see ‘Fair dealing and sports footage’ below).
2. Fair dealing for the purpose of criticism or review
The law states that: “Fair dealing with a work for the purposes of criticism or review, of that or another work, does not infringe any copyright in the work provided that it’s accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) and provided that the work has been made available to the public.”
Clips can be used in a variety of ways, including:
- In the context of reviewing/criticising the clip itself – e.g. the use of clips of a music video to illustrate how well/badly the artist performed in it or how it was directed.
- In the context of some other review or criticism, such as of a theme or philosophy behind a work – e.g. the use of clips from the film A Clockwork Orange in the context of criticising the treatment of violence in the film and whether it was a justifiable reason for the decision of director Stanley Kubrick not to release it in the UK (for more information, see 'The Clockwork Orange case' below).
- To show an advertisement, or a clip from it, criticising the exploitation of children by a burger chain, by reference to the way the advertising deliberately appeals to children.
Fair dealing under this limb is often seen where permission to use material would be refused, or where unreasonable restrictions are placed on use. It’s commonly used where a subject of content is unlikely to like the way in which they are portrayed, e.g., biographical content about an actor which is critical of them and with which they have not co-operated.
For fair dealing for the purpose of criticism or review the copyright work must have been previously published (e.g. by means of an authorised performance, exhibition, playing or showing of the work in public).
Also, the clip being used should be directly relevant to the review or critique being undertaken and not just have a tenuous connection. Consideration should be given to the amount and importance of the work taken too; you should only use what is absolutely necessary of the work.
Clips cannot be used simply as ‘wallpaper’, and it’s unlikely that fair dealing under this limb will support clips being used in a ‘sting’, title sequence, a start or end of part reprise, tease, or a fast-cut montage or as a backdrop.
In the event of a dispute, when deciding whether clips have been used for the purpose of criticism or review, any court would consider the content’s likely impact on its audience and what a reasonable viewer would understand to be the purpose of including the material.
The criticism or review may be in the form of an interviewee's sync, voice over/commentary or text on screen, provided the review or critique is pertinent and the clip is not unduly lengthy (see ‘How much of the copyright work am I allowed to use?’ below). The criticism or review can run before, after or concurrently with the clip being used, or all three.
While clips may be edited to accompany the critique or review, clips should not be altered or manipulated under this limb of fair dealing, e.g., by adding in comic or special effects or overlaying sounds/music not original to the clip (although see ‘4. Caricature, parody or pastiche’ below). The use of slow motion may be acceptable under this limb of fair dealing, where it’s essential to the point being made.
If you plan to rely on an interviewee talking about specific clips, you should show them the clips beforehand, to ensure their comments are specific and relevant, and so you have the necessary material in the edit in order to review/critique the clips that you want to.
See ‘What is a sufficient acknowledgement?’ below for further guidance.
3. Fair dealing for the use of a quotation from a copyright work
The law states that “Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise)” provided that:
- the work has been made available to the public
- the use of the quotation is fair dealing with the work
- the extent of the quotation is no more than is required by the specific purpose for which it’s used
- the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)
The IPO (Intellectual Property Office) has provided some limited guidance: see 'Exceptions to Copyright: Guidance for creators and copyright owners’, which states the law “… only allows use of material where it is genuinely for the purpose of quotation, and only where the use is fair and reasonable (e.g. it does not replace a commercial sale)”. It also gives an example of what will be acceptable: “… it could permit a short quotation that is necessary and relevant in an academic paper or a history book but it would not permit a long extract”.
The guidance doesn’t provide a definition of “for the purpose of quotation”; however, it’s suggested that the courts may interpret the section in the following ways:
It seems clear content creators can fair deal with quotations from all types of copyright works. A quotation from content would be ‘a clip’ from that content. Sampling music recognisable to the ear may also amount to a quotation in certain cases. Whilst photographs are not excluded (i.e. one can quote from a photograph under fair dealing rules), it’s only likely to be acceptable in exceptional circumstances.
When quoting from copyright works and relying on this section, it’s unlikely that you will be justified in using large amounts of the original work. In most cases, when fair dealing with quotations, you should be cautious as to the amount of the work you are taking/quoting. The law doesn’t provide a definition of ‘quotation’ but IPO guidance suggests, as do most dictionary definitions, that quotations tend to be short snippets, extracts or passages taken from existing works, as opposed to something more substantial.
There are no clear limits of how big or small, or long or short, a quotation can be relative to the work it’s taken from; it’s considered on a case-by-case basis. However, we expect content creators to err on the side of caution, particularly until the parameters of this section are more clearly understood, following judicial consideration. Any quotation that is used should be directly relevant to the purpose for which the quotation is being used, and particular attention should be paid to any proposed fair dealing with a quotation, where anything other than a ‘short extract’ of the original work is intended to be taken.
Whilst the idea of a quotation being a ‘short extract’ fits easily with the word’s everyday meaning, when thinking about books, songs, television programmes and films (short clips), what it means practically in terms of a piece of art or photograph is less clear, particularly where the work consists of a single image. Quoting from a painting, sculpture or photograph is likely to involve showing the entire work, albeit briefly.
The IPO guidance on this section states that whilst the quotations exception does apply to all types of copyright work, ‘… it would only be in exceptional circumstances that copying a photograph would be allowed under this section. It would not be considered fair dealing if the proposed use of a copyright work would conflict with the copyright owner’s normal exploitation of their work. For example, the ability to sell or license copies of photographs for inclusion in newspapers would be normal exploitation.’
Nevertheless, particularly given the IPO’s warning, you should proceed cautiously when considering relying on the fair dealing with quotations exception to reproduce photographs. If a photograph is to be fair dealt it may well be prudent that review or critique of that work is included within the content too, so that the defence of “fair dealing for the purposes of review or critique” can also be relied upon in the event of any complaint.
As regards other copyright works where fair dealing with a quotation is likely to involve using/showing the whole of the work, e.g., paintings/sculptures, it’s suggested to proceed with caution. A particularly important consideration in such circumstances is likely to be whether and to what extent the use competes with the original work and whether the use might be capable of reducing the value (to the copyright owner) of the work being quoted.
Consideration must also be given to ‘the purpose’ i.e. the editorial reason being used.
A quotation is a reference to some pre-existing work. If there is a clear editorial purpose for reference to that work, particularly where that is clear to viewers, then it’s more likely to fall within this fair dealing provision.
At times, there is likely to be overlap between fair dealing using a quotation and fair dealing for the purpose of review or critique, and this is expressly recognised by the law. The use of clips and other material may well be defensible under both these limbs of fair dealing. Where ‘fair dealing with a quotation’ is likely to be particularly useful is where content creators wish to refer to another work, but there is no or limited scope within the content to review or critique that work.
In summary, when fair dealing with quotations:
- Consider carefully the purpose of using the quotation. There should be a clear editorial purpose. Quotations should be contextualised. Viewers should be clear where the quotation is from and why it’s used. In practice, this is likely to mean making an explicit reference to the work from which the quotation is taken.
- Consider carefully what it is you are quoting. Does it have direct relevance to the purpose for which it’s being used? Consider how much of the work you are reproducing, when compared with the work as a whole. It should be no more than is required by the specific purpose for which it’s being used. As noted, whilst there are no set limits on size, the everyday meaning of a ‘quotation’ doesn’t sit easily with taking large amounts of other works – although this will need to be assessed on a case by case basis.
- Ensure the work you are quoting from has been published before (legitimately).
- Ensure the quote is attributed, i.e., provide the sufficient acknowledgement of title and author (unless impossible for reasons of practicality or otherwise).
4. Fair dealing for the purposes of caricature, parody or pastiche
The law states: “Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.”
The law allows creators to use other people’s copyright works without their consent for the purposes of “caricature, parody or pastiche”. When relying on this limb of fair dealing, there is no requirement to acknowledge the work with ‘title’ and ‘author’ (as there is with other types of fair dealing) or indeed give any other form of acknowledgement.
The Act doesn’t provide definitions of ‘caricature’, ‘parody’ or ‘pastiche’. However, the IPO Guidance makes it clear that Parliament’s intention was for these terms to have their everyday meanings (whilst considering the context and purpose of the copyright exceptions).
The guidance provides the following definitions:
- “In broad terms: parody imitates a work for humorous or satirical effect. It evokes an existing work while being noticeably different from it."
- “Pastiche is musical or other composition made up of selections from various sources or one that imitates the style of another artist or period.”
- “A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.”
The IPO Guidance provides helpful assistance on how this section is likely to be interpreted:
The exception is intended to allow creators to refer to other copyright works within a work they are creating, in essence ‘building on’ the earlier work. The guidance states ‘this means it is very unlikely that someone could copy a whole unchanged work, without permission from the copyright owner. For example, it would not be considered “fair” to use an entire musical track on a spoof video.’
This particular provision will only permit use of works for the purposes of caricature, parody, or pastiche to the extent that it’s ‘fair dealing’ and the guidelines state that “fair dealing allows you only to make use of a limited, moderate amount of someone else’s work”.
When fair dealing for the purposes of parody (or pastiche/caricature) you do not have to comment on the original work you are using or its author.
The exception does not affect an author’s right to object to a derogatory treatment of their work.
Case law provides guidance not just on what characteristics something must have to qualify in law as a parody, but also sets out some characteristics which are not essential. For example, a parody does not have to “display an original character of its own, other than that of displaying noticeable differences” to the original parodied work. In addition, it doesn’t matter if the parody could not reasonably be attributed to someone other than the author of the work being parodied (although see 'derogatory treatments' below). There is also no need for a parody to “…relate to the original work itself or mention the source of the parodied work.”
In 2022, the courts decided that the parody and pastiche defences did not apply to an interactive dining show – Only Fools The (Cushty) Dining Experience – which used characters, mannerisms, voices and catchphrases from the TV comedy, Only Fools and Horses. They said a parody must have a target, some critical distance between the new and existing work, and could only facilitate dialogue or artistic confrontation if it was an expression of opinion (humour or mockery) itself. Just imitating a comedic work was not enough to constitute a parody. Using the characters, backstories, catchphrases and jokes from Only Fools and Horses didn’t amount to a parody in the dining experience, as it didn’t mock or critically engage with the original TV comedy, it was more an adaption by reproduction.
In the case of pastiche, it was said that new works need to be noticeably different from the original, and the use needs to imitate the style of another work (or several works), assessed on a case-by-case basis. The scripts used at the dining experience took the characters, their catchphrases and backstories from Only Fools and Horses and presented them in a live dining format. But they didn’t use those elements to imitate the style of Only Fools and Horses, so it was not considered a pastiche.
When determining if your use of a copyright work could fall within this fair dealing exception, it’s suggested that the following matters are considered:
- What copyright works are you intending to use in your caricature, parody, or pastiche? It may be useful to list them.
- For each copyright work, is it being used for the purposes of caricature, parody or pastiche? Note it may be that your use qualifies as both parody and pastiche, even perhaps all three.
- To ascertain if your use is for the purposes of caricature, parody or pastiche, analyse what it is you are intending to do and consider the definitions closely. For example, if you want to fair deal a work for the purpose of parody, ask yourself whether the work you are creating imitates another work for humorous or satirical effect. Does it evoke an existing work, whilst being noticeably different from it? If the answer to these questions is ‘yes’, you may be justified in using limited amounts of existing copyright works under this limb of fair dealing; if the answer is ‘no’ to any of these questions, it’s not.
- What are you using or ‘borrowing’ from other work(s)? How much of the original have you taken? Is it reasonable or appropriate to take as much as you have for the relevant purpose? When fair dealing, usually only part of a work may be used. If you are taking a limited amount of another work and ‘building on it’ for the purposes of parody etc., this is more likely to fall within the exception.
- Consider also whether the use might affect the market for the original work. Generally, it has been held that use is not ‘fair’ where the use acts as a substitute for the original, causing a copyright owner to be out of pocket, i.e., devaluing the work being fair dealt.
You should always seek early advice on any proposed fair dealing from the commissioning editor and your content lawyer/compliance advisor.
What is a sufficient acknowledgment?
A condition of fair dealing a copyright work for the purpose of reporting a current event or for the purpose of criticism or review, or when quoting from a work, is that the work is accompanied with a sufficient acknowledgement of the ‘title and author’ of the work. The required acknowledgment is usually ‘supered’ on the screen when the clip is shown but, in some exceptional cases, it may be sufficient to put the acknowledgement in the end credits of the content. The acknowledgment may also be given verbally in appropriate cases.
In exceptional circumstances no acknowledgement is required - "where it would be impossible for reasons of practicality or otherwise". In circumstances where, in spite of best endeavours, it’s not been possible to trace what the title of a work is, or who its author is, you may decide to fair deal a work without giving an acknowledgement.
Content creators must always seek the advice of the content lawyer/compliance adviser, as to what is required in a specific case.
The acknowledgement needs to refer to the title of the work and its ‘author’, which will often, but not always, be the copyright holder. The following are examples which can be used for different types of copyright works:
- Literary works - the author e.g. 'Harry Potter and the Goblet of Fire'/J K Rowling
- Dramatic works - the writer e.g. 'A Few Good Men'/Aaron Sorkin
- Music - music composer and lyricist if applicable e.g. 'Yesterday'/Lennon and McCartney
- Music video - the artist, lyricist, composer, record company, and director e.g. 'Angels'/Robbie Williams/R.Williams & G. Chambers/EMI Music/Vaughan Arnell
- Art - the artist e.g. 'My Bed'/Tracey Emin
- Photographs - the photographer e.g. 'Princess Diana'/Mario Testino
- Film - the studio, producer and principal director e.g. 'A Clockwork Orange'/Warner Brothers Inc./Polaris Productions Inc./Stanley Kubrick
- Broadcasts - the Broadcaster and Production Company e.g. 'Big Brother 6'/Channel 4/Endemol Productions
- Advertisement - the advertising agency and the production company e.g. 'Mr Kipling-Delivery'/Saatchi & Saatchi/David Lodge
- Online/UGC clip - the creator (often, but not necessarily, the uploader) and the original name of the clip e.g. Gnewstv/'Arson Backfires as Biker Sets Fire to Himself' or Stephennewton/'Manchester Bollards'
The courts have held that where a clip featured an on-screen broadcaster's logo, that was sufficient to identify the broadcaster as the author of the work, although the broadcaster was not named in an on screen aston.
The courts have also held that oral statements that accompany the clip, e.g., an interviewee's sync which acknowledges the author, would equally constitute a sufficient acknowledgement.
The acknowledgement must be large enough to be legible and on screen long enough for viewers to be able to identify the title and author of the work.
The Clockwork Orange case
In 1993, Time Warner took legal action against Channel 4 to prevent clips from the film ‘A Clockwork Orange’, which Time Warner owned, being used in a programme critique. Time Warner failed, and the programme was broadcast. This was the first case to test the 'fair dealing' legislation (for the purposes of criticism and review) and laid down many of the guiding principles.
At the time, the film was not available in the UK, so a laser disc of the film was legitimately purchased in Paris, then brought to the UK and transferred to BETA. This was deemed by the Court to be a fair method of obtaining the material.
The programme included a total of 12 minutes of clips from the movie in a 30-minute running time. The Court also accepted that one could not do justice to a review of the film unless one showed a number of clips from it.
Do I need to inform the copyright owner before transmission?
There’s no requirement to inform the copyright owner before transmission. It’s not necessary for the copyright owner to refuse permission to fair deal material.
Sometimes, we may decide to inform a rights holder that we are intending to use clips of their material under 'fair dealing' before transmission. However, this is rare.
You should check with your content lawyer/compliance advisor before contacting rights holders to inform them of your intention to 'fair deal' material.
If you plan to 'fair deal' any Channel 4 purchased content or films, you must ensure that your commissioning editor is made aware as soon as possible, as this may give rise to potential contractual/commercial issues. This isn’t intended to restrict your right to legitimately 'fair deal' but to ensure that it doesn’t compromise the broadcaster's contractual relationships with suppliers.
Under copyright law, authors of copyright works are entitled to object to a ‘derogatory treatment’ of their work(s). A ‘treatment’ in this context means in general any addition, deletion, alteration or adaptation of the work. This right would at first glance appear to sit uneasily with the defence of “fair dealing with a work for the purposes of caricature, parody or pastiche”, as such purposes are highly likely to involve a ‘treatment’ of existing copyright works, and may well be derogatory, certainly in the eyes of the author. In addition, fair dealing is no defence to an author’s objection to a derogatory treatment of their work(s).
When fair dealing for the purpose of review or critique, care should be taken not to alter or change the work (other than basic editing of clips or perhaps slow-mo – see ‘Fair dealing for the purpose of criticism or review’ above), lest it amount to a derogatory treatment.
How then can work be fair dealt for the purposes of caricature, parody or pastiche where altering, changing, ‘building on’ copyright works is inherent in what is being done? The answer lies in what makes a treatment derogatory. Statute provides that to amount to a derogatory treatment, the treatment must (objectively) be one which is “prejudicial to the author’s honour or reputation”. If it’s clear to viewers that the parody (or caricature, pastiche) is the work of someone other than the author, e.g. the work of the content creator, it’s most unlikely to be prejudicial to that author’s honour or reputation. Where viewers might reasonably conclude that the parody (or caricature or pastiche) is the work of the original author (i.e. the author of the work being parodied), problems may arise.
Fair dealing and sports footage
Shortly after the fair dealing provisions of the Copyright, Designs and Patents Act 1988 came into force and following legal proceedings between the BBC and Sky, broadcasters agreed a code of conduct in relation to the use of each other’s sports footage. This agreement was named the "Sports News Access Code" and Channel 4 is a signatory. This means most sports footage cannot be fair dealt and can only be used in accordance with the provisions of the Sport News Access Code.
For further advice, please contact the Legal & Compliance team.
The below sets out some general guidance but each case needs to be assessed on it's own facts so specific advice must be sought from your content lawyer/compliance advisor.
This depends on several factors, such as how prominently it appears or whether its inclusion is deliberate or merely incidental. A fleeting glimpse of a poster or picture on a wall in a documentary is unlikely to require clearance, if its inclusion could be defended as being "incidental" in the UK (see 'Incidental Inclusion', above). However, if the poster was deliberately included within the content, e.g. within a drama set, or was shown prominently - the poster was picked out and commented upon - then it’s unlikely its inclusion would be classed as 'incidental' and clearance from the copyright owner would likely be necessary.
Newspapers, which consist of written articles and photographs, are copyright works and need to be licensed if they are to be included within content, unless their use falls within one of the statutory defences, e.g. incidental inclusion or fair dealing. In most types of content, if newspaper articles or pages from newspapers are shown ('rostrummed' or held up to camera) they will need to be licensed in the usual way.
In some types of content, in particular topical, review or news-type programmes, showing pages or articles from newspapers may fall within fair dealing provisions (potentially to report a current event and/or as part of a review/critique). If so, clearance will not be required.
Content creators often want to include newspaper headlines in their content, either taken directly from the page of the newspaper in which they originally appeared or reproduced as a graphic. Case law suggests that the courts would be unwilling to find the reproduction of a simple headline amounted to copyright infringement of the article or publication from which it came (as it wouldn’t amount to a 'substantial part'). As with all rights clearance issues this is primarily a matter for the producers who should decide whether clearance is necessary based on the nature of the content and intended use. In certain circumstances clearance may well be advisable, while in others it may be wholly unnecessary.
No. If a film clip is being fair dealt, underlying rights such as a musical score within it, would not need to be separately cleared. If this wasn't the case and underlying rights had to be cleared, it would make fair dealing practically impossible and frustrate the very purpose for which it was introduced. This applies to all fair dealing – if a work is being properly fair dealt, underlying rights do not need to be cleared.
Yes. It does not matter if the copyright owner has refused permission if the copyright work is being properly fair dealt.
This is a common misconception. Content (including articles, pictures, music, graphics, photographs, footage) found on the internet is as much protected by copyright law as any other copyright material. Just because it can be accessed or downloaded through/from the internet does not mean that it’s free to use, copy or distribute without authorisation from the copyright owner. Some material accessed via the internet is 'public domain' and free to use, but where it is, it will be clearly spelled out in a licence agreement accompanying the material in question (and might have certain conditions attached). Other copyright material found on the internet may be free to use but only in certain defined ways, e.g. material posted onto the internet under a Creative Commons Licence.
If in any doubt at all whether clearance is necessary, content-makers should err on the side of caution and contact the copyright owner for consent unless the intention is to fair deal the material.
- Section 30 of the Copyright, Designs and Patents Act 1988 – as amended by the Copyright and Related Rights Regulations 2003 and the Copyright and Rights in Performances (Quotation and Parody) Regulations (SI 2014/2356) – sets out the main conditions that must be met to legitimately fair deal a copyright work.
- 'Exceptions to Copyright: Guidance for creators and copyright owners’, Intellectual Property Office (IPO).
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