Old 8mm Footage - Legality of use?

[Zack Birlew]

Hi, everybody, I happened to see some old 8mm film canisters at a few yard sales and a thrift store recently, family road trip or school memory looking things according to the labels on the cans, and wondered, could they be used for anything? I’ve heard about projects using old random 8mm family footage for things but nothing was ever said about getting permission or if a company provides them or anything like that. Would it be possible to use the footage for anything or to sell segments as classic stock footage? I would assume that the sellers wouldn’t care since they’re selling their own family film negatives but I just don’t know. Does anybody have any advice or experience with this kind of potential project?

 

[Karim D. Ghantous]

Technically, if copyright has not expired (and I'm guessing it maybe hasn't) then you should get permission first. Giving away a recording does not entail that the copyright is given with it.

Practically, the people who shot that footage will probably never know or care what you do with it. But you don't know 100%.

I don't know the ins and outs of copyright law, but if you can establish a recording date, and the copyright has expired, then you have no problem. However, you still can't use that footage commercially (e.g. stock) because you would need a model release. But you can certainly publish it or even resell it without any further licenses implied (AFAIK).

 

[Zack Birlew]

That’s what I was thinking, I couldn’t remember if there was a clause or something about owning the negative for film or something like that. Not sure if 8mm footage from the 70’s will be in demand 30-40 some odd years down the line but who knows?

 

[David Collard]

Zack,
That's a great question, but you're playing with fire. You could safely assume it's not a problem if everyone identified with the footage is dead.

Would you want a five second piece of you running around in the yard as a child in an insurance commercial? Microsoft many years ago bought the digital rights to a whole bunch of paintings but I don't believe it included the actual physical paintings.

Similarly, I bought a painting many years ago that could serve as the basis for prints/posters, however I would probably get sued by the painter in Europe for not clearing the rights to his painting. I don't believe I bought the copyright to the painting's "exploitive rights" unless it was specifically stated on the bill of sale.

Again, a really good question and one that could become a prevalent one.

 

[Brandon Veen]

While nowhere in-depth to what copyright lawyers learn, when I went to school for graphic design we covered copyright a bit in one of my classes. As it's of interest for contract work, we had talked about the five (six) exclusive rights of Copyright. Which are as follows:

1. Reproduction: The right to reproduce the copyrighted work
2. Derivative Works: The right to prepare derivative works based upon the work
3. Distribution: The right to distribute copies of the work to the public
4. Public Display: The right to publicly display the copyrighted work
5. Public Performance: The right to publicly perform the copyrighted work:
6. Applies to audio only, the right to digitally transmit (public perform) the copyrighted work.

As David alluded to, with the painting he purchased he didn't secure any of the copyright with it. Generally, if a right isn't explicitly listed (such as the right to make reproductions) it's not transferred over to you upon purchase. Additionally, as soon as a work is made, it's copyrighted.

As for when copyright expires, that is determined by a few factors but it generally lasts for the lifetime of the author plus 70 years. Of potential use for you is that works before 1978 can be subject to some different rules. Apparently before 1978, copyright protection was mostly only available for published works. So in terms of legality of using it, I'd look there first to see if it is protected or not.

If it is protected, you're essentially looking at two of the rights (perhaps 4 if you intend to display or perform it) and those are:
- Reproduction: For selling as stock footage.
- Derivative Works: For using in your own projects.

Assuming it is protected, while the chance of the copyright holder finding you used their footage is fairly slim, you would be breaching copyright law by trying to sell it as stock, and like David with his purchased painting, be liable to get sued for copyright infringement.

Now for using it as a derivative work, fair use could potentially come into play and protect you if you're just using small snippets of the 8mm footage. If I recall, the general rule is 30 seconds or 10%, whichever is less. Although I've also read it's 3 minutes not 30 seconds and in other places that the "general rule" is a myth when it comes to commercial use. I'd recommend looking into how fair use would apply to see what you can get away with.

So really, I'd say there's sort of 3 options when it comes to using the footage:
1. Find the copyright holder, or if it wasn't homemade, potentially the person who filmed it, and get them to transfer over the copyright to you.
2. See if it was produced before 1978, and assuming it was unpublished, find out if it has any copyright protection.
3. Use it under fair use guidelines if possible.

 

[Dominik Muench]

I've been wondering about that, I saw a stall at the Victoria markets in Melbourne a while ago where they sold bucket loads of old black and white film sildes of peoples shots.

 

[Stephen Williams]

I've been wondering about that, I saw a stall at the Victoria markets in Melbourne a while ago where they sold bucket loads of old black and white film sildes of peoples shots.

Well if you have the originals, it's going to be difficult for someone to claim they own the copyright

 

[Dominik Muench]

Well if you have the originals, it's going to be difficult for someone to claim they own the copyright

I dont know if they're necessarily the original copies ? but also in many of these photos people are visible, its not just landscape and street photography.

under the new EU privacy laws this must be a nightmare.

 

[Björn Benckert]

In commercially used material you need not only the copyright but also a signed contract with everyone visable in the material used.

 

[Tom Gleeson]

Be aware this is an international forum and people are responding from multiple jurisdictions which all have their own specific rules and regulations. What applies in the EU may not be true in the USA, China or Australia.

IMHO in Australia if you had purchased old 8mm footage from the 1960s and 1970s and used it in an historical documentary and the footage did not defame or make people look bad you are pretty safe. Even if somebody managed to recognise themselves from 50years ago and were unhappy with this you would be required to pay them the standard fee if they asked. Busy Courts are generally uninterested in small scale litigation and Australian courts are unlikely to apply any serious punitive damages so litigation is unlikely especially if you offer a remedy and pay. I suppose the worst case is you may have to cut them out.
Although I don't think you will have any luck using it as stock footage without paperwork for at least one lifetime.