Ep. 45 A filmmaker’s guide to licensing materials

One of the first lessons I was ever taught as an early-career filmmaker was this: never use another artist’s work without seeking the proper approvals first. This goes for everything from stock imagery, to YouTube footage, archival material, animation, art, music – even a capella renditions of famous songs! 

In fact, many moons ago Mike and I were filming with a participant for one of our documentaries when the participant burst into a version of Take Me Home, Country Roads by John Denver. It was poignant and touching and, thankfully, we caught it on camera. We knew before we even watched the footage back that it would end up in the film. 

After the interview, we started thinking – maybe we could licence the original song and include that in the film as well. So we investigated …and thank goodness we did! It turns out we’d actually have to pay a license fee to use the participant’s take on the song too. 

Phew – close one! 

Why am I telling you this story? 

Because if we had bypassed that step and distributed the film without all the correct legal permissions, we could’ve been facing some serious copyright infringement penalties. We might even have had to can the documentary entirely. Yep – you read that correctly. All that work disintegrated over a little legal loophole … can you imagine! 

The thing is, many filmmakers spend months, even years, mapping out shoots, conducting interviews and piecing their documentary together. But they don’t know the ins and outs of the legal aspects of their production. 

Which is why I thought it was time to talk about it on the Moonshine Moonshot series. The last thing I want is for you to make an awesome moving picture, only to find out right at the end that you can’t distribute it because you didn’t secure the necessary rights and permissions. 

So let’s find out how to protect yourself and your film from any copyright infringement. 

Listen now! 

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Transcript

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SPEAKER_00 0:03

Hello fellow filmmakers. One of the very first lessons I was ever taught as an early career filmmaker was this never use other people's work without seeking proper approval first. Look, it was true in high school when you wanted to plagiarize for an essay, and it's doubly true now that you're a fully grown adult. This goes for everything from stock imagery to YouTube footage, archival material, animation, art, music, even a capella rendition of a famous song. In fact, many moons ago, Mike and I were filming with a participant for one of our documentaries when the participant burst into a version of Take Me Home Country Road by John Denver. It was poignant and touching, and thankfully we caught it on camera and we were absolutely thrilled because when we watched the footage back, we just knew it was going to make the final cut because it was really moving. And after the interview, we started thinking maybe we could license the original song. How cool would that be? And we could include that in the film as well. So we investigated and oh my gosh, I am so glad that we did because it turns out we'd actually have had to have paid a license fee not only for the original recording, which was crazy expensive, but also to use the participants' take on the song. Yeah. So an a cappella version sung impromptu, just a few lines, still cost us quite a couple of thousand dollars. So you've got to be really close. You've got to know what you're doing. And why am I telling you this story? Well, because if we'd bypassed the step and distributed the film without the correct legal permissions, we could have been facing some serious copyright infringement penalties. And we might have even had to can the documentary completely. Yes, you heard me correctly. All that work disintegrated over one little legal loophole being copyright. Can you imagine? So the thing is, as many filmmakers spend months, even years, mapping out shoots, conducting interviews, and piecing their documentaries together, they don't know the ins and outs of the legal aspects of their production, which is why I thought it was time to talk about it on this Moonshine Moonshot series. The last thing I want is for you to make an awesome moving picture only to find out right at the end that you can't distribute it because you didn't secure the necessary rights and permissions. So in this episode, we are going to find out how to protect yourself and your film from any copyright infringements. I'm Sue Collins and I am part of the team behind Moonshine Agency, an Impact Film Production House producing films that have positive social impact. Now, Impact Films are films that are designed to take an audience from passive viewing to being an active participant. In other words, it gets them doing something, getting involved, and being part of the solution. Now I've recognised that learning how to craft films is a pretty challenging process. When I was just starting out, it was really hard to find information and learn about filmmaking without formal study or without being under the wing of a mentor. So avoiding the pitfalls, being pigeonholed, running out of funding, or simply not understanding the business side of the industry has meant that over the years I have seen many people, people with a lot of talent, give up or simply move on to more stable work. But my hope is to see the industry thrive here in Australia and beyond, and I recognise that to do that, I've got to be more open with my skill sharing. So that's why I've decided to share more what I've learned through many years of filmmaking, through this podcast, The Moonshine, Moonshot, and with online courses at the Moonshine Communications Academy. So make sure you check out the Academy, particularly the resource section where you can access the free downloads like check sheets and ebooks. And if you haven't already come across them, there are some really great online courses available through the Academy as well, such as Define Your Ideal Audience, which will help you figure out who your project is best suited to well before you even roll camera, and that is gold for anyone who is trying to market their film. So, today's episode, I am talking all about licensing. What is licensing and why it is so important for you to understand and know. Now I should also mention at this juncture if you're feeling a little bit freaked out by the idea of the legals involved in understanding copyright, do not stress because when I was just starting out, I really didn't know this stuff as well, and I've just learnt it through years and years of doing it. I am by no means a lawyer and I have absolutely no legal training. My experience really just comes from reading dozens and dozens of contracts and licenses over the years and getting familiar with the terminology and understanding the meaning behind a lot of it. And this is stuff that you can definitely learn yourself. The important part is to understand what you need to be looking for so that you don't fall into any traps and get yourself caught up in a copyright issue. So if you've ever watched a movie or heard a well-known song, think, I don't know, like Under Pressure by Queen and David Bowie or Staying Alive by the Bee Gees, it means that filmmakers have received a license to use those songs. Well, at least I hope that they did. But this actually goes for any music that you hear in a film or a TV commercial, a YouTube clip or a video game. Although YouTube's a little less strict on this, but it is they do have algorithms that can pick up if you're using licensed music. So it really does apply to anything that you're doing. So trust me, even if you want to use some obscure song released decades ago, you need to seek out the proper permissions. The recording artists will likely find out. Don't underestimate the power of those algorithms in finding copyrighted material online, or worse, their lawyers will find it. And then you will be facing all sorts of issues, and they won't only cost you time and money. It could mean the end of your film entirely. So the long and the short of it is this. If you want to use somebody else's work in your film, you have to seek approval. Not only is this your legal responsibility as a filmmaker, it's also a common courtesy to your fellow artists. It's worth noting that licensing doesn't just apply to music. You also need to license other things like stock footage and images. And as a filmmaker, I'm sure you're very familiar with doing that. But other creators' footage, archival material, animation, artwork, all of these things all have to have permissions for you to use them. There are a few quirks that can come into play. For one, there are some materials that you can use without needing to seek a license. But usually this only applies when the content you're producing isn't for any commercial gain or it's only intended to be seen by a very small audience. So for the purpose of what I'm talking about today, assume any content that you're using will need to have copyright checked, which is why it is always wise to check on the source of the material you want to use and any licenses attached to it. And to add another layer of complexity, there is a stack of material that falls under Creative Commons, which is a public copyright license that enables a free distribution of a copyrighted work. For example, the John F. Kennedy Moonshot speech falls under this category, which is something we used in our feature film Conquering Cancer, making history by eliminating cervical cancer everywhere. And I had just simply assumed that we were going to be in for a hefty license fee to use that footage. But what a nice surprise. It was a Creative Commons, and we didn't need to, but you have to read the contracts to know that. So that was a lucky break, and it can happen. So what happens if you rip some footage off YouTube and put it into your film? Will anyone know? You could if you get away with it? You probably won't get away with it. That is the problem. Well, whoever owns that footage could sue you is the first problem. And it can derail the whole distribution plan for your film because a broadcast or a streaming service won't be able to publish it if it includes unlicensed footage, imagery, or music. And believe me, they usually ask for the licensing paperwork. So highly recommend you keep a good filing system because it's such a pain a year down track to try and go back and find all the licensing that you have already done. So keep it all in one good, safe spot. This is the other problem. You might receive a cease and desist letter from the original creator. So they might not go straight to a lawsuit, but they might tell you you do not have permission to use it and you must cease using it, or they will pursue you for damages, which is usually financial. And therefore, you'd be legally required to pull your title from the market entirely. Yeah. All your hard work undone just because you didn't follow a few legal steps. So the good news is that you can use anything you have a license for. If you receive a license to use the material from the copyright owner and use it within the scope of that license, then there's no risk of you infringing any copyright. And common license terms might include the duration, which means how long the license might last for. I usually ask for worldwide in perpetuity. If you can get that, that's great. It means you don't have to worry about it again. Geography, as I said, worldwide is brilliant because then you don't have to worry. But sometimes it's you might only be distributing within your home country. So for example, I might only need it for Australia. And it might cost more to have worldwide. So you've got to weigh up these things. And the amount of people who will likely see the work and how much of the licensed work you intend to use. And what that means is sometimes, you know, with Creative Commons license, it might be free if your content might only be seen by 5,000 people. But if you think it's going to be distributed on Netflix, it might have a much higher fee attached to it. So you do have to think about what the distribution for your content is going to be, because sometimes that can weigh into the licensing. The other thing is you might find you only need 15 seconds of the piece of music you're trying to license. So you might only have to pay for 15 seconds worth, you don't have to pay for the entire track, which can make it much more affordable. So it's really good to understand all these different bits and pieces when you're reading those licensing contracts. So before I get really deep into the costs, I also want to really reassure you that this scary kind of lawyer-y speak in this podcast should not be a stopping force for you. It should not be a stopping force for you to use licensed content, and it should not be a reason for you to stop making your project. Never let anything you're not confident in doing be a reason to stop. All it means is it's just something you need to learn, and this is definitely things that you can learn. So a big question on all of this is often, isn't licensing really expensive? It's a really good question. And the honest answer is, yeah, it can be. Just a few weeks ago, Mike, my co-producer, and I had a conversation with a music supervisor in Hollywood about using a particular song in one of our upcoming productions. It's a traveling Wilbury song, and the quote for is in excess of $100,000. Yeah, so we're not going to use that track. But on other occasions, licensing fees can be very reasonable and even minimal. And if they fall under the Creative Commons license that I mentioned earlier, there might not be a fee at all. But the key takeaway here is to check the licensing requirements. Decide if the fee is worth budgeting for and go from there. If it's too expensive, find another solution. Just don't, please don't use the material without proper approvals or without crediting the original source. That's another point I should make. Is with this, for example, the Traveling Wilbury song that we were really hoping to license, but it's just beyond our budget. We're going to speak to our composer about that's the type of sound that we want in our film. Can they work with that as part of their inspiration for the original score that they're going to produce for us? So all is not lost. Now you need to have a license agreement with any participants who may provide photos or footage for you to use. Not just music. It's also applying to photos and footage. Because they may not charge you any fees. So think about, you know, often you see this in films, particularly documentaries. People will provide personal photos, home videos, etc., and you can use those in the film to enhance the story that they've told you. And that's completely fine. And they might not charge you any fees. But if you're going to sell your film to a broadcaster or Netflix or any of the streamers, they're going to need to see licensing paperwork, which is just a really simple participant agreement form that you can easily create, and there's heaps of templates online. But make sure you get a signed agreement from them to use. And the reason I say this, do it up front, is because I have had to, almost two or three years after an interview, chase down an interviewee in Africa who had participated in the film and had to, I had no way of getting them to sign a form. Eventually the broadcaster accepted text messaging, which the participant agreed that I could use their photos via text message and that satisfied them. But it was such a rigmarole. So highly recommend at the time when someone gives you the photos, get their permission. Even if it's just in email, just get it in writing. Anywhere you can get people to actually commit to the fact that they've given you permission is going to be really helpful for you. Now, before I sign off, I do realize that this sounds like a lot of information, which is why I always recommend seeking guidance from a copyright lawyer or from your production lawyer if you are in any way unsure or unclear about the terms that you might be agreeing to. You can certainly do all the initial licensing checks yourself, and this can save you a lot of dollars because by the time you hand over the licensing to your lawyer to prove, you'll have a pretty good understanding of whether you've got the right permissions in place and they're just doing the final checks. So they're not doing all the legwork, which will definitely reduce your legal fees. And it's always worthwhile seeking professional advice before delivery to confirm that you are in fact complying with all the necessary licensing agreements you've created. And it's just going to avoid really big headaches and stress later on. I can think of another production that I worked on where they licensed a song and it was for the feature film, but then that music had also got used in the trailer. And when I was going through all of the paperwork, I was trying to think, why doesn't this license say anything about the trailer? This music's in the trailer. And it turned out that that had been missed in the contracting. And so before the film was released, thank goodness we'd picked up on it and it went back to the licensee and they granted permission, but there was an additional fee. However, had we not done that, can you imagine the lawsuit instead or having to pull the film or whatever could have happened? So, you know, you just gotta dot your I's and cross your T's whenever it comes to copyright law. So if you want to get really nerdy about it, you can also check out a site called Arts Law Australia, and that's got some really good background as well. So I definitely hope I haven't freaked you out with all of his legal jargon and legal talk, but it is just so important and it's really good to have in the back of your mind so that you don't get caught out in any copyright issues when you're producing your film. So if you've got any questions, do not hesitate to contact me at support at moonshinecommunicationsacademy.com or on any of our social media platforms. And please hit subscribe on whatever platform you're listening on because it helps people know that you've enjoyed this podcast and then maybe they might as well. Anyway, I really look forward to speaking to you next week. Have a great time, and till then, happy filmmaking.