Reforming Copyright – Quotation and Film

IP Society Blog Series

Submission by IP LLM student Panagiotis Lampropoulos

 

Quotation is a prominent practice in film, usually to pay homage, used by filmmakers such as Godard and Tarantino, which the relevant exception does not adequately protect.

The Copyright, Designs and Patents Act 1988 (CDPA), provides that the purposes for which quotation in works may be made are non-exhaustive. Simultaneously, advising the CJEU, the Advocate-General recognised the dialogical nature of quotation includes paying tribute. However, its framework is practically limited to criticism and review, even though the Berne Convention itself makes no such specification.

Although the CDPA accepts that “sufficient acknowledgement” need not be made where impracticable, the CJEU’s requirement that it be possible to identify the work, lacks sufficient clarity.

One case-study, used by Bentley to criticise this rule, is Marclay’s ‘The Clock’ , a film practically telling the time through stills of timepieces taken from previous works. This work’s artistic value is recognised as paying homage to time in film, and as such appears meet the Advocate-General’s dialogical requirement.

Though the film did not contain a credit sequence due to its practical function, a low bar of identifiability might offer desirable protection to the work. This is ascertained given was seen as unlikely that no one would recognise any of the stills, whilst film enthusiasts had compiled a list of films which were collectively recognised. Consequently, the bar should be clarified as low given that even where credit is absent, sources of quotation are still identifiable.

Furthermore, the Adovcate-General’s requirement that quotation must be “unaltered and distinguishable” establishes an overly restrictive requirement on the exception.

This requirement would fail in the case of ‘The Clock’ as alterations had been made for continuity and aesthetics. Given film is an aesthetic endeavour, the law should allow flexibility so that filmmakers may enter into “dialogue” with previous works to pay “tribute” whilst maximising their work’s aesthetic appeal.

Often, quotation is indistinguishable to the rest of the film, especially considering films do not feature quotation marks. For instance, Roth and Keitel’s embrace in ‘Reservoir Dogs’ quotes a previous film by John Woo. Though the embrace is not explicitly distinguished, it does not cease to be seen as a tribute to John Woo.

Thus, it is recommended UK lawmakers explicitly strike these requirements.

Whilst such work can potentially be protected by the pastiche exception, as ‘The Clock’ was when first published, the lack of intent required in such cases renders quotation a more fitting exception. Indeed the Advocate-General’s dialogical requirement implies intention. A focus on quotation would, result in social benefits in promoting culture, as it would concretely protect films interacting with prior art in a positive light benefitting both authors

These modifications are likely to benefit short form content creation in the digital environment, where time-limits render attribution impracticable, yet discussions in comment sections contribute to recognisability. Furthermore, it is likely to prevent cross-platform litigation in the age of heavy online film production.