Barking Wolf: Prevention is the best cure – seeking legal advice in advance

A photograph of a silhouetted cameraman, with pink and blue light beams surrounding him
Photo by Jakob Owens on Unsplash
A photograph of a silhouetted cameraman, with pink and blue light beams surrounding him
Photo by Jakob Owens on Unsplash

Barking Wolf is a film production company based in Fremantle, Western Australia. Barking Wolf contacted Arts Law in early 2017 to seek advice about a number of legal issues that they thought might arise when producing films. Barking Wolf wanted advice on:

  • filming members of the public;
  • using a third party’s footage;
  • getting  written permission from interviewees;
  • copyright ownership of ‘raw’ material or working files; and
  • what the law says about using footage that may be in the ‘public domain’.

Public Domain Footage

The question about using ‘public domain’ footage is one that comes up frequently at Arts Law. What we always advise artists is that just because material is on the internet, that doesn’t mean it is in the public domain in an intellectual property sense.

Material published on the internet is often still subject to copyright and you cannot use images, music, articles or other materials from the internet that are subject to copyright without the permission of the copyright owner. Not only does receiving permission limit your exposure to being accused of infringing someone’s copyright but it can also smooth out the process of getting funding or a contract to produce your own work – usually you’ll need to give a warranty that you own or have a licence for the entirety of the work you produce.

However, as we advised Barking Wolf, there are vast amounts of material on the internet you can use without getting permission such as works in which copyright has expired. This can be very tricky to work out and depends on a number of different things, so it’s best to contact Arts Law for legal advice. For example, in some cases, parts of a film might be in the public domain, but the underlying material (e.g. artistic works) may not be!  

Artists should also consider ‘Creative Commons’, a non-exclusive (meaning anyone can use the licence) and irrevocable licensing system that allows you to use the materials as long as certain licence conditions are met. These conditions always include attribution of authorship and otherwise may restrict the purpose for which you can use the materials or whether you can alter it. For more information on how to use and work with Creative Commons licences, see the Arts Law Creative Commons info sheet or contact us.

When advising Barking Wolf, we also highlighted the importance of acknowledging the creator’s moral rights when using someone else’s work.

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Tom Allum from Barking Wolf says:

The Arts Law lawyers gave me some really valuable advice navigating the copyright labyrinth.

I have come across many smaller arts/design organisations that have been affected by handling of working files. It was invaluable to have guidance on our rights and responsibilities.

Due to the sensitive subject matter of some documentaries we produce, I feel morally obligated to protect the privacy of the people we interview. Our rights and responsibilities were clarified by the Arts Law lawyer. They also mentioned that people with indigenous backgrounds have different rights and responsibilities when being filmed. The lawyer referred me to: “ICIP – Working with Indigenous Artists” on the Arts Law website. 

Another issue occurs when we are handed graphic sequences or still images, by a client, for use in a film project we are producing for them. The Arts Law lawyers explained what permissions were needed and who was responsible for use of them.

I am grateful that artists like me are able to have access to a resource like this. 

– Tom Allum, Sound Designer and Producer at Barking Wolf 

While our clients sometimes contact us when things are going wrong, it is wonderful when they contact us early on for general advice in relation to issues that they think may arise from their arts practice. If you have a query similar to any of the queries raised above, please check out the resources on our website or lodge your legal query using our online form.

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