When researching archive footage for use in audiovisual productions, there are a few types of legal agreement used by archive footage vendors or institutional collections that outline for content producers: a) the rights and liabilities associated with the use of archive footage, b) the costs associated with licensing material and/or obtaining hi-res copies, and c) the legal jurisdiction of the agreement. These agreements often also detail any rights not covered in the agreement and for which the licensor is liable – and thus responsible to clear on their own.
Suffice it to say that understanding these documents is primordial for anyone who wishes to use archival footage in their productions. It can be complicated and is usually best left to a specialist archive producer, but for those going it on their own, here is a quick(ish) rundown.
So, what kinds of legal agreements do I need to know about?
The Licensing Agreement
Licensing agreements are used for anything from copyright-protected archive footage, news footage, rights-managed footage – footage to which a third party owns the rights – to complete works. Most commercial footage vendors, broadcasters and institutional film libraries use their own licensing agreements when licensing footage to content creators unless they have made other arrangements with a production. This is more common for high-volume buyers, but is not always accepted by footage vendors. It is always a good idea to ask for a sample licensing agreement early in the process with each source. This allows you to spot issues and ask for changes if need be, or to understand whether or not you will ultimately be able to license footage before your production relies on it.
A licensing agreement will usually specify the following:
- The name of the production for which footage is being licensed, and often of the final broadcaster.
- The name and source of the footage you wish you license, and if necessary the timecodes of the part you are licensing.
- The rights you are acquiring, including the number and kind of uses (commercial, editorial, or education for instance). Most licenses are for a single use, though from time to time projects will required multiple uses for multiple purposes.
- The term of the license. For how long will the project containing the footage in question be distributed? In North America and the UK most major productions seek licenses ‘in perpetuity’ for their productions. This means they will not have to re-license the footage again in the future if they wish to seek new distribution deals or sell the project in its entirety.
- The media required. Is your project going to be broadcast on television, online, in theatres, etc…? Today, as VOD represents a massive opportunity for filmmakers to reach new audiences, it is wise to find out what it costs to license for “all media” so that your project is clear for distribution across as many media as possible.
- The territory covered by your license. Where is the project going to be shown? Some projects may have a global distribution plan right from the start. Others are more tailored to local markets. Finding out from the start what broader territorial rights would cost you might make it easier to secure pricing before making new distribution deals. In some cases, what you paid for the initial local license (France, Belgium and Luxembourg for instance) can be applied toward the cost of a worldwide license once you secure global distribution.
The total cost of licensing material – including any one-time technical or research-related fees – will be stated in the agreement, along with the conditions of delivery of material. Commercial vendors will usually also state how the rate has been calculated, as well as if they are applying a minimum runtime or licensing fee to set their final price.
The final element of most licensing agreements is a section dedicated to liability outlining the extent to which the licensor and licensee are respectively responsible for the use of the material. In most cases, the footage vendor or other licensee will certify that, unless otherwise stated in the agreement, they hold all the necessary rights to distribute the material. This section will also outline content creators’ responsibilities to secure any other rights – such as rights to music – that may be associated with the footage they’re licensing.
If it sounds complicated, that’s because it is. But not to worry! Archive Valley’s community of professional Archive Researchers in over sixty countries can help you navigate the complex world of footage licensing.
Royalty-free Licensing and One-Time Buyout Fees
A royalty-free licensing agreement is similar to other licensing agreements, albeit simpler. Most stock footage and some archive footage is available for royalty-free licensing, which gives the licensor the right to use footage many times and/or in many projects and formats without having to pay new licensing fees or residuals such as (obviously) royalties. The agreement may still contain some restrictions on certain uses of material, and like standard licensing agreements will usually outline how the author of the material is to be credited. Pricing in these cases is often determined by the artistic or technical quality of the material itself rather than the scope of where and how it will be displayed.
Older material, such as most public domain footage and images, is no longer subject to copyright and is totally free to use in any way the content creator likes. The agreement used for this material is often referred to as a buyout agreement, where for a one time fee, the owner of a physical or digital copy of the archive material, provides the content creator a high-resolution copy for use in their project. These are usually the simplest agreements of all, and most of the language in them revolves around defining the service provided and the associated costs. For instance, a commercial footage library selling high-res scans of footage of New York in the 1920s, which falls under public domain in the United States, will offer the material to a producer for a one-time buyout fee, and charge them a fee to cover the costs of research, storage, scanning, and providing high-res files for use in contemporary productions.
These agreements can go by various names, but in any case need to be considered carefully – especially when licensing copyrighted material for use in productions with wide distribution scope. With some attention and by communicating effectively with your archive footage providers, licensing any type of material is totally achievable if your budget allows (see our previous post for 6 ways to optimize your archive budget). Archive material exists under different licensing schemes to suit many budgets. However, consulting an experienced archive researcher – whether you’re in development or ready to clear the rights for your project’s archive footage – can save you time and money.