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News - 25 June 2018

Are there any legal rights in video footage? Is permission required to use them?..

October 1 is a Nigerian film that captured the attention of its audience especially Nigerians. The film received commendations for the quality of the acting, production designs, and cinematography. October 1 was set in the period before Nigeria's independence. The film was brought to life by footage from this period. The footage helped the audience to understand the historical context and appreciate the film better.

Finding Fela, a documentary film about the life of Fela also incorporated footage which helped the audience to appreciate the context of the film. Without the footage, the message of the film and Fela's very interesting life may not have been appreciated.

Some filmmakers incorporate footage in their films. The footage is edited and adapted into the new film to enhance the message.  Footage refers to all sequences used in film and video editing. There are different types of footage i.e. archive footage, stock footage, etc. Although they can be used interchangeably, there is a difference between archive footage and stock footage.

Archive footage is retrieved from an archive, private or public. It is used to describe older, historical, or classical footage and is often used in news productions and documentaries as opposed to television shows. Examples include the first and second world wars, events like the coronation of Queen Elizabeth II, the independence of Nigeria on October 1, 1960, etc. Archive footage of events surrounding Nigeria's independence and archive and stock footage of Fela's life at home, music concerts, live performances, tours, etc were incorporated into the films referred to in this article.

On the other hand, stock footage is a film or video footage used in a production for which it was not initially filmed. These can be clips from motion pictures, interviews, news or any other footage. Stock footage is used in motion pictures, documentaries, and television shows. In motion pictures, stock footage is used to refer to other films or a specific period. In documentaries, it is used to correctly depict a specific period or subject of the documentary. In television shows, it is sometimes used to cut cost as it can be expensive to film some common shots.

Stock footage can also be used to integrate news footage or notable personalities in a film. For example, Forrest Gump used stock footage which was modified with computer generated imagery to portray Forrest Gump (Tom Hanks) meeting John F. Kennedy, Richard Nixon, and John Lennon.

Footage adds value and substance to a film, television programme or series, or documentary. But are there any rights in footage and is permission required to use them? Footage can be described as an audio-visual work. Under Nigerian law, an audio-visual work is categorised as a cinematograph film in which copyright exists. A cinematograph film includes the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a sound track associated with the cinematograph film.

The author of a cinematograph film has the exclusive right to (a) make a copy of the film, (b) cause the film to be seen in public, (c) include the film in any cinematograph film, (d) make any adaptation of the film. The author of a cinematograph film is the person who funded the making of the film except if the contract between the parties provides otherwise.

The author could be the Federal or State Government or any other independent producer.  Anyone who wishes to use the footage in the manner described above has to obtain permission from the author and pay a license fee. Indeed, a key documentary on the history of Nigeria is not available on DVD because rights in the footage incorporated in the film were not obtained from the rights owners.

Use of footage without permission infringes the author's right and there may be legal consequences. Permission will not be required if the footage is in the public domain. Works in the public domain are those whose intellectual property rights have expired. Under Nigerian law, copyright in a cinematograph film expires 50 years after the end of the year in which the film was first published.

Footage first published 50 years or more ago will have fallen into the public domain and will not require the permission of the author before use. Footage of events such as Nigeria's independence day will not require permission from the authors because they were first published over 50 years ago (Nigeria's independence took place 55 years ago). Some of the footage are available from the National Archives of Nigeria or on the internet such as on YouTube and other video sites.

Nigeria: Journey to Nationhood is a documentary that profiles Nigeria's journey from colonial era to independence. The documentary was released in 1991 and was produced by Rick Bayles. A lot of archive footage of Nigeria's independence, conferences, and the founding fathers like Nnamdi Azikiwe, Tafawa Balewa and Shehu Shagari featured in the documentary. Some of the footage which relates to the colonial era and independence would have fallen into the public domain if they were first published over 50 years ago.

Although they are license free, a handling fee is sometimes required by sources such as YouTube for preparing, resizing, transferring or improving the footage. Without obtaining the necessary licenses to use footage not yet in the public domain, the filmmaker may infringe the copyright of the owner of the footage. For example, if You Tube receives a copyright infringement notification from a copyright owner or an agent authorised to act on behalf of the copyright owner, it will remove the material/content from its platform in accordance with the Digital Millennium Copyright Act of the US.

If you are a filmmaker in the process of making a new film and it incorporates clips or footage from other sources, ensure that you confirm the copyright status of such footage before use. And obtain the necessary licenses to avoid copyright infringement.

Sandra Oyewole

Sandra Oyewole

Firm: Olajide Oyewole LLP (A member of DLA Piper Africa)
Country: Nigeria

Practice Area: Patents