As a filmmaker, videographer or content creator, you should be aware that recording footage in public may have copyright implications. For instance, this may be the case if you capture someone’s creative work without permission. In this article, we discuss the rules for filming in public from a copyright lens and tips to avoid copyright infringement in this setting.
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What is Copyright?
Copyright is a type of intellectual property that protects the expression of ideas. Further, it is an automatic right in Australia, meaning it is effective as soon as an original work is created. Examples of work that copyright protects include:
- artistic works;
- literary;
- dramatic and musical works;
- sound recordings;
- films; and
- broadcasts.
In the context of filming in public, a copyright concern may arise when music is playing in a shop, and you capture it in the background of your footage.
Copyright Infringement
Copyright infringement has likely occurred where you have used a ‘substantial part’ of someone’s work without permission. Moreover, this applies in cases where your use is not covered by one of the ‘fair dealing’ exemptions.
There is no concrete definition of ‘substantial part’. Although, it is often referred to as a critical, memorable, and unique part of a work. Contrary to popular belief, what is substantial does not have to amount to a large portion of a work or be more than 10% of the original work to be copyright infringement. Moreover, if you capture the chorus of a recognisable song in the background of your video, this may be the use of a substantial part despite it being only a tiny portion of the song.
Continue reading this article below the formFair Dealing Exceptions
As mentioned briefly above, fair dealing is an exemption to copyright infringement, where the protected material is used for a specific purpose. These exceptions include the use of copyrighted material for:
- research or study;
- criticism or review;
- parody or satire;
- reporting news; or
- professional advice.
Notably, the use of the copyrighted work must be ‘fair’ and assessed on a case-by-case basis. To illustrate, if you are a cameraman for a news station, your use of copyrighted material in the filming process may be exempt from copyright infringement as long as what you capture is fair and for the primary purpose of reporting or commenting on the news.
Rules for Filming in Public Places
When filming in public, consider the following points on what can and cannot be filmed without permission. Doing so will help you to avoid infringing someone’s copyright:
- Avoid filming a ‘substantial part’ of someone else’s original work in public to minimise the risk of copyright infringement. If you need to use someone’s work, consider seeking permission from the copyright owner, or whether a fair dealing exception might apply.
- Permanent works of artistic craftsmanship, such as statues and buildings can be filmed without the permission of the copyright owner. Although, you cannot use temporary displays of artwork such as paintings and graffiti without permission.
- Filming of artistic works (except photographs) may be allowed if it is considered ‘merely incidental’ and the work does not have any relevance or importance to your film. However, this exception does not apply to the filming of literary, dramatic or musical works.
Importantly, if you are a filmmaker, you must provide certain warranties to third parties involved in the development and production of the film. It may be difficult to secure funding if you do not have the relevant copyright permissions in place.
Key Takeaways
If you frequently film in public, it is essential to consider how copyright might affect you. This way, you can avoid potentially infringing on someone’s creative work. Namely, you may find it helpful to consider:
- ways you can infringe on someone’s work;
- fair dealing exceptions; and
- rules for filming in public places.
If you have any questions and would like to speak to a copyright expert, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Depending on the location you are filming, you could capture a range of artistic works such as graffiti, billboards, posters and paintings, or other works such as music, radio shows or videos.
In certain instances, you may not require the permission of a copyright owner if your use of their work falls under a ‘fair dealing’ exemption. Given that research and study is one of these exemptions, if your use is solely for an educational purpose, then you may not need to request permission to use the creative work.
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