Navigating the use of copyrighted material within new work

Duncan Campbell, Beatrice Gibson and Andrea Luka Zimmerman respond to five set questions on the subject of ​‘Navigating the use of copyrighted material within new work’.

Duncan Campbell is an Irish video artist based in Glasgow, he trained at the University of Ulster and the Glasgow School of Art. Campbell was the recipient of the 2014 Turner Prize for his video work It for Others. His art is often based on intense archival research and deals with a wide range of subjects including Northern Irish politician Bernadette Devlin, the DeLorean car project, and German economist Hans Tietmeyer. His films are concerned with these histories and how they bear on the present. In particular, Campbell uses his films to explore how social, political, and personal narratives are constructed and relayed over time. As such, he not only questions the degree to which documentary is fiction, but he also problematises the accepted authority and integrity of cultural records. Archival elements are therefore interwoven with Campbell’s various personal understandings and interpretations, as imagery of his own construction is mashed-up with found, official documentation and original footage. Such is the spirit of Campbell’s work: his smart, precisely crafted films convey engaging alternate stories and portraits.

Beatrice Gibson is a French-British filmmaker based between London and Palermo. Her films are known for their experimental and emotive nature. Exploring the personal and the political and drawing on cult figures from experiment literature and poetry – from Kathy Acker to Gertrude Stein – they are often populated by friends and influences and cite and incorporate co-creative and collaborative processes and ideas. Gibson is twice winner of The Tiger Award for Best Short Film, Rotterdam International Film Festival, in 2009 and 2013 respectively. In 2013 she was shortlisted for The Jarman Award for Artist’s film and the 2013 – 15 Max Mara Art Prize for Women. In 2015 she won the 17^th Baloise Art Prize, Art Basel. Most recently she was the winner of the Images Festival Marian McMahon Akimbo Award for Autobiography 2019 and was shortlisted a second time for the 2019 Jarman Award for Artist’s film.

Andrea Luka Zimmerman is a Jarman Award winning artist, filmmaker and cultural activist whose multi layered practice calls for a profound re-imagining of the relationship between people, place and ecology.

Films include the Artangel-produced ​‘Here for Life’ (2019), which received its world premiere in the Cineasti Del Presente international competition of the Locarno Film Festival (winning a Special Mention), ​‘Erase and Forget’ (2017), premiering at the Berlin Film Festival (nominated for the Original Documentary Award), ​‘Estate, a Reverie’ (2015) (nominated for Best Newcomer at the Grierson awards) and ​‘Taskafa, Stories of the Street’ (2013), written and voiced by the late John Berger.

Selected exhibitions include ​‘Art Class’ at METAL and LUX, ​‘Shelter in Place’ at Esturary Festival, ​‘Civil Rites’, the London Open, Whitechapel Gallery, ​‘Common Ground’ at Spike Island, Bristol and ​‘Real Estates’ at Peer Gallery. Andrea co-founded the cultural collectives Fugitive Images and Vision Machine (collaborators on Academy Award® nominated feature documentary ​‘The Look of Silence’).

Andrea co-edited the books ​‘Estate’ (Myrdle Court Press) and ​‘Doorways: Women, Homelessness Trauma and Resistance’ (House Sparrow Press) and has published extended essays in Anthologies as well as open access platforms such as ​‘Open Democracy’, ​‘La Furia Umana’, ​‘Another Gaze’, among others.

Andrea grew up on a large council estate and left school at 16.

Duncan Campbell: Give yourself plenty of time. To start with, most archives will direct you to their online portals or YouTube pages. In my opinion these aren’t much use. They only show a fraction of what the archive holds, and search operation is, at best, broad-brush. To do a more comprehensive search, or if your references are more specific, you’ll need to get access to the archive’s internal databases. This is where things get can get difficult. I’ve found, particularly recently, that archive departments are understaffed and overworked. It can take weeks and in some cases months to find the right archivist and for them get back to you with search results. If you have material coming from multiple archives, the delays multiply.

When it comes to paying to clear material, the rate card you’re given doesn’t always include the type of distribution you want. Even if it does, it’s worth asking for a discount or making them an offer. It works, but not always. Again, this can take time.

Beatrice Gibson: I have always paid for and sought permission to use copyrighted material and, in general, I work with that as a sort of principle. It’s part of a wider set of feminist and queer politics or lens on the whole thing to do with citation: the idea that everything we make is made in a crowd. It’s a big fat ​‘fuck you’, if you like, to the patriarchal idea of the author genius whose ideas all happen in isolation in a room of his own! In a similar vein, I have used or quoted quite a lot of historical and contemporary, textual and musical, archival material in my practice and I make absolutely sure that everybody cited knows about it, feels comfortable with it and is being financially compensated.

In terms of other uses of material, using say visual material from mainstream or popular culture or from more archival sources like the BBC for example, I think that context and scale of distribution of the work play a key role. If I’m using a thirty second clip from a well-known archive in a full, obvious and un-doctored way for a show touring across several institutions, or a film intended for festivals or TV broadcast, I would always seek permission for use.

However, if I am using thirty seconds of the same BBC archive clip but, for example, I have zoomed in or abstracted it to a point where it’s no longer really recognisable in relation to the original, if I am using merely a fragment of it, or have filmed it on a second screen within the larger frame, there could be a case for not seeking permission, for ​‘fair use’. If you really have to have the material in your film and you can’t afford to pay for the rights there are potentially creative ways around it like this, by digitally altering the material to the point where it could arguably constitute a new image, filming it in situ on a second screen etc. However, whatever route I take, I take it very consciously.

Andrea Luka Zimmerman: Because I usually work with low budgets that prohibit an expected or ​‘conventional’ spend on archive material, and especially because of the deeply enmeshed problematics within the concept of the archive itself, it is important to ​‘glitch’ the system (note: I am not talking about extraction to embellish: more on that in later sections). The advice I would give depends always on the context.

The first question is always ​‘who holds the archive in question?’ Is the same material held in different archives, which may be more accessible /​affordable? Sometimes archives invite artists to work with their collection directly, so these are often more open to exploration of the ​‘meaning’ of the material they hold. Some archives serve national interests, and some are simply peoples’ home movies or archives that are spread and spread again, on YouTube or other platforms. Some archives are free for non-commercial films, which most artists’ moving image use would fall into, and some charge very high fees (including public archives such as the BBC). Personal archives are easy in that one can just ask and make a case. But let’s look at more complex approaches to the archive and how to work around restrictions creatively and consciously.

Archives are bound in with and by ideological (imperial, colonial, secreting) systems. The use of archive (including mainstream films) is deeply embedded within structures of power – related to who is collecting and who can afford to preserve and maintain. We need to consider how the archive was obtained, who has access to it and who is excluded from accessing it (for instance, historical Palestinian records, photographs and documents held in Israeli archives are extremely restricted; in the US and UK, freedom of information requests often return with an abundance of redacted sections. Similarly certain archival material cannot be ​‘sounded’, meaning one is allowed only to use the image, and there are many such variations depending on the archive and material sought. Archives, in the widest sense possible, are not neutral.

More generally, when it comes to representation of mass memory, such as through TV and mainstream films, we have to consider who is re/​presented in the material and what we are allowed to see by the choices made? Could one ​‘trouble’ this archive? How might that troubling lead to new, or annotated versions of these histories?

For instance, scholar Ariella Aïsha Azoulay tried to source images from Israeli archives and rejected the conditions imposed that included Israeli-annotated images giving their version of history. She actually copied the photographs, by drawing them, and added another annotation including the Palestinian version of that history. Her activism around the archive is very inspiring and is detailed in her book ​‘Potential Histories: Unlearning Imperialism’ (Verso, 2019) So one always starts with thinking as to why one wishes to engage with an archive and on what terms. For instance: do you really need to use the material, and for what purpose? Could a description of the material, or an imagining of it, be more potent?

Duncan Campbell: Personally, that relationship has always boiled down to a question of access. As I mentioned above, my experience has been that most of the footage an archive holds is in a vault that can usually only be accessed through an archivist. When I made my first film using archival footage, I felt that I needed maximum access to do the history I was looking at justice. When I got that access, it quickly became clear that film archives were not as abundant as I thought, there are gaps and omissions, and they are embedded with media and other scripts. I’ve tried to reflect all this in the films I make, but to get the measure of it in the first place requires approved access.

That said, with archival footage being so heavily monetised the case for appropriation is obvious. Take the BBC for example- it’s hard to support their claims of having a historical or cultural prerogative now that they’ve outsourced the running of their archives to Getty Images.

Beatrice Gibson: When I think of appropriation within the context of artistic practice, or within the context of my own artistic practice, I think about appropriation as the conscious and explicit use of source material and its translation or reworking into something else entirely. The narratives or stories that exist within my films are often mishmashes of other narratives taken from influences or heroes, but unrecognisable in their new combination within my work. Within that framework, in context of complete transformation, I don’t really see copyright rearing its head. Nonetheless, I enjoy citing ideas and influences in the work and often list them anyhow within the credits, whether they are recognisable or not.

However, if you’re using or working with source material from a profoundly corporate or commercial context, whatever the planned transformation, you might want to embark on the project with a lawyer or take some legal advice about framing from the outset. We live in a world where the narratives and fables that used to be up for grabs and retold and reworked over generations are now copyrighted and consequently ossified. The world has become an increasingly corporate place, the tentacles of late capitalism, the logic of neoliberalism or whatever you want to call it, its insidious; proprietary culture is increasingly extreme. Creative culture is, for sure, impoverished by that reality. On the other hand, when we use or quote a music track or text authored by another creator, it’s appropriate to me, politically speaking, that that person’s labour is protected, that we ask permission and that they’re rewarded financially. Musicians, artists, people in marginalised positions or positions of less power should all be credited and financially acknowledged. That’s the good side of things. Things get stupid when corporate culture doesn’t allow for nuance in terms of use and when context is ignored.

Andrea Luka Zimmerman: In my film ​‘Estate, a Reverie’ (2015, 83 mins) it was straightforward. It was a place where I had lived for 18 years, a place that was so full of life and glorious, incompatible ways of being together that we had to navigate daily as a living practice. It was a council estate that had featured in many films and had been called a ​‘sink’ estate and a ​‘dumping ground for the disenfranchised’ (BBC), a ​‘squatters’ paradise’ (Channel 4) and several other derogatory representations. The BBC film was the most brutal – it literally said the opposite of what was on screen, racialising and stereotyping abjection. I sourced the film online via a community call-out. In order to use it in my own film, I projected it onto the wall of the estate and we re-filmed it in its context, and graffitied across it in the end.

It felt as if the mainstream media had appropriated our council estate in their image. In their version of what ​‘working-class people in poor condition housing’ are like, they literally placed a narrative upon us that none of us recognised other than through the media. Our lives were appropriated to suit a version of history that imagined inevitable demolition and housing speculation as the answer to all. The brutality of displacement and impermanence brought on by property speculation, aided by appropriated narratives, is what I desire to glitch /​resist, playfully but purposefully, and this is why we appropriated the archive that appropriated our image.

I know that there are many more complicated notions of appropriation – who has the right to reappropriate? etc. and so this can and must become a space for a range of forms of activism and creative resistance; a new form of annotation. I like to credit the archives to show that trace of annotation as alive, as a refusal sometimes, a marking and a witness. Other artists may practice or feel differently.

Duncan Campbell: I’ve never relied on ​‘fair use’ because it’s so open to interpretation. The alternative for me is to use creative commons or footage that’s out of copyright. ​‘Arbeit’ is a film I made in 2011 that is made entirely of this type of material.

Beatrice Gibson: Unless the source material is out of copyright, I don’t think I can! All the archival, text and musical material in my films has official permission from its authors to be there.

Andrea Luka Zimmerman: There is a difference between using archive to progress a narrative and using it critically. An example is Pierre Huyghe’s work ​‘L’Ellipse’ (1998) where Huyghe uses two original scenes from Wim Wenders’ film ​‘The American Friend’ (1977) within his new work in a simple yet profound way.

When ​‘Erase and Forget’ (2017, 86 mins) got into the Berlin film festival, I needed to have a rigorous case. Academic Martin Zeilinger is a brilliant media rights activist and he helped me think though my ​‘archive use’ frame by frame. The film is a test case as it works at the borderline of legal understanding and, along with Taina Galis (who edited the film) we wanted to push the film /​montage into the realm of ​‘performativity’ in order to show how the movement of ​‘secreting’ (making secret by re/​presentation of works) shapes our thinking and formation of self in relation to the world around us. How it may lead to the ​‘othering’ of people, communities and even nations and reproduce extreme forms of violence in the name of necessity, peace, democracy and futures.

Duncan Campbell: I don’t have a very satisfactory answer for this. There’s plenty online about UK copyright law but the overviews given usually have the disclaimer – ​‘seek professional legal advice.’ This website is as good a place as any to start.

If you are working with funder, gallery or venue to present the work they might be able to advise on specific issues or have some legal resources you can use. Alternatively, a Scottish Artists Union membership gets you to a certain amount of free legal advice.

Beatrice Gibson: Seek advice and talk to your producer or a trusted producer you know. Ask institutions like LUX Scotland for their advice. Speak to other artists about what they’ve done in the past. It’s just not worth having the distribution of your film limited or trouble later down the line because you ignored the copyright issue.

Andrea Luka Zimmerman: I recommend reading the fair dealing copyright manual to familiarise with the legal framework, in case one needs to argue one’s case. I believe we must annotate the archive, in an ongoing process of making worlds otherwise. If we only let historians who are taught in particular ways how to write history, already filtered in ways that they see, frame and write, then we will remain where we are. To trouble the archive or to awaken its content towards alternative versions of history seems especially important when dominant histories aim constantly to rewrite the past (as currently with origin myths of purity and whiteness, nationalist agendas, and settler colonial frameworks) leading to unimaginable suffering and ongoing erasure.

Duncan Campbell: I suppose it could be useful to think about the worst-case scenario – what would you do if the rights holder challenges you? That would mean legal problems, but you would also have to think through the ethical implications of what you’re doing. Not all copyright holders are visual media corporations.

In the longer term, you would also need to think about if you intend to sell or profit from the work. For example, if you want to sell the work, the institution or person buying it will ask for proof that the material you’ve used has been cleared in perpetuity.

Beatrice Gibson: I think you have to think carefully about what happens if the artist or musician or author from whom you’re taking the material sees your film and feels aggrieved or exploited. It’s worth thinking about how you would feel in the same position. What kind of action might the institution that owns the copyright might take if they came across your work? If it’s a massive Hollywood studio, will they have your work taken out of the public sphere? For me it’s about consciously assessing your own use, then determining (in consultation with your larger network of makers or producers) whether how you’ve appropriated, used or quoted the material constitutes fair use. Do you need to ask permission? Again, a key question is the intended scale of distribution: if it’s a film showing in a low-key artist run space or a single screening in a smaller institution, that’s a different situation to if the film will tour to festivals or screen on TV.

Andrea Luka Zimmerman: When working without large budgets, but with big ideas, you have to be absolutely sure that you can argue your case. Then you are fine! My films have shown internationally and continue to be shown. And there are other examples of artist’s films using extensive amounts of archive material (for instance, Stanley Stinter’s work ​‘The Lock-In’ (2022) only used material from EastEnders’ pub scenes (96 hours of footage) and was presented in numerous East London pubs for a month, at The Barbican Centre in London, as well as at The Oberhausen Film Festival.

When artists work in low budget frameworks we need to become our own researchers and to make our own contexts. This is more work, but also allows for deeper thinking and independence. When preparing for a scene in my film ​‘Here for Life’ (2019, 86 mins), the Spoken word poet and performer Errol McGlashan said: ​‘better do it and then figure out how to make it ok’. I think that we have enough censorship in our lives. Let’s learn by going where we have to go.