← All insights Media

Clearing third party material, and why the bill arrives at delivery

Something in the edit belongs to somebody else: a clip, a photograph, a track, a piece of archive. The instinct is to treat clearance as administration, to be completed once the creative work is finished. Treated that way, it becomes one of the most common reasons a delivery date moves.

Clearance is the work of obtaining permission for the use you are actually going to make of material you did not create, and then holding a record of that permission which somebody who was not there will accept. Both halves matter. A production that has the permissions and cannot evidence them is, at delivery, in much the same position as one that never asked.

The difficulty is that nothing in production tests the position. An edit assembled from cleared and uncleared material looks identical on the timeline. The uncleared shot cuts as well as the cleared one, the placeholder track sits under the sequence exactly as a licensed one would, and the film improves while the rights position quietly does not. There is no point at which the work itself objects.

So the first person to read the rights schedule properly is usually somebody downstream: a distributor's legal team, an insurance underwriter, a broadcaster's compliance function. They arrive at the end, they are reading it for the first time, and their interest in the delivery date is limited to the fact that it is the production's problem and not theirs.

What a clearance has to establish

There are two things, and productions ordinarily attend closely to only the first. The first is permission: somebody has agreed that this material may be used. The second is authority: that the person who agreed was entitled to agree. A licence from a party who did not hold the right is a document rather than a clearance, and it is the second question a careful reader downstream is really asking.

Authority is where archive is most difficult. A library holds material on terms agreed with whoever deposited it, and the licence it is able to grant is ordinarily no wider than the one it holds. That reflects the structure of the trade and is no criticism of libraries. It means a licence which appears to cover everything may sit on top of a narrower grant further up the chain, and that what is being bought is sometimes a permission and sometimes a permission plus somebody else's assessment of risk.

Music carries the same difficulty in its own form. A commercially released track ordinarily involves more than one copyright: the sound recording, and the underlying musical work with any lyrics. They can be owned by different people, and they are dealt with separately in almost every agreement in that industry. Permission in respect of one is not permission in respect of the other, and an artist agreeing enthusiastically on a call may control neither.

Scope, and the uses nobody listed

The second failure is a licence that exists and does not stretch. Permissions are granted for described uses, and the description is the whole of what has been obtained. Where the material will travel beyond it, the licence answers a different question from the one anybody is asking.

Promotion is where this bites hardest, and the reason is organisational rather than legal. Promotional material is made by a different team, on a different schedule, against an earlier date. The campaign goes out before the programme does. So the earliest public use of the material, and often the one seen by the widest audience, is the use that received the least attention from anybody thinking about rights.

The same applies to everything that happens afterwards. A festival cut licensed for a screening and later placed on a service. A version reassembled for another territory. A clip lifted for a social edit by people who reasonably assumed the material was the production's own. Each of those is a new use, and whether it is covered was decided by a document written before anybody had the idea.

The material that walked into shot

Not everything requiring attention was chosen. Artwork on a wall, a screen playing in the background, a poster, a garment carrying a design, a mural behind an interviewee, music audible from somewhere off camera. Some of that is genuinely incidental, and copyright law in the United Kingdom makes allowance for the incidental inclusion of one work in another. Whether a particular inclusion is incidental is a judgement about what the shot is doing rather than about what anybody intended, and it is not a judgement worth reaching confidently from inside the production.

The practical consequence is that the shots needing most thought are ordinarily the ones nobody remembers making a decision about. A location was dressed, a contributor was interviewed in their own home, a scene was shot in a working shop. What was in frame was merely a fact about the room. It is still material somebody owns, and at delivery it will be assessed by a reader who was not standing in the room and has only the frame to go on.

What the parties downstream ordinarily ask to see

Distributors, broadcasters, financiers and insurers are not applying a common rulebook, and what any one of them asks for varies with the project, the risk and the market it is going into. Described generally, though, the request is recognisable to anybody who has delivered before.

It ordinarily takes the form of a schedule of third party material, identifying what is used, where it appears and on what authority, with the underlying licences available to be read. Errors and omissions insurance, which is the cover responding to claims about rights in the content, is ordinarily written on the basis of that material together with a review of the work itself. A production seeking that cover is asking an underwriter to price a risk, and a risk that cannot be evidenced is priced accordingly or not accepted.

None of that is a legal requirement, and describing it as one would be wrong. It is a commercial expectation, which in practice is harder to move than a rule, because the party holding it has alternatives and a schedule of its own.

Why the same clearance costs more at the end

A licence fee is the outcome of a negotiation rather than a published price, and what each side knows alters it. Approached during production, a rights holder is being asked whether they would like their material to be in the programme. Approached once the edit is locked and a date is fixed, the same rights holder is being asked to rescue something, and it is generally apparent from the enquiry itself which of the two is happening.

The larger cost lies elsewhere, in the disappearance of the alternatives. Material identified early can be replaced with something cheaper, cut, or shot differently. Material discovered late has been cut around: the sequence is built to its length, the commentary is written over it, the grade and the mix are finished to it. Replacing it means recutting, and recutting at that stage is a cost carried across the whole of post production rather than a line in the rights budget.

There is a version of this that never reaches a negotiation at all. The rights holder cannot be found, or cannot be identified with confidence, or is an estate with no obvious point of contact. Early, that is a research problem with room to run. Late, it becomes a decision about whether to deliver material whose position cannot be evidenced, taken under pressure by people who will not be the ones answering for it if somebody complains.

When to spend nothing

Not every piece of third party material justifies a clearance exercise, and productions that treat everything as equal spend real money establishing the harmlessness of shots nobody would ever have raised.

Cutting is frequently cheaper than clearing, and it is the option most consistently overlooked, because by the time the question is asked everybody in the room is attached to the shot. Where a clip is doing work that another clip could do, the honest comparison is between the cost of the licence and the cost of the change, and the answer is not automatically the licence.

There is also material with no realistic exposure and no remaining commercial life. A back catalogue that is not being licensed, promoted or exploited does not usually repay a retrospective clearance programme. The exception is the one that catches people out. An old title becomes interesting again because a contributor becomes prominent or a subject returns to the news, and the questions are then asked of material assembled when nobody expected anybody to ask anything. Knowing which parts of a library are capable of becoming interesting is a commercial judgement rather than a legal one, and it is worth making before somebody else makes it for you.

More on this: Rights and clearances, part of media.

This guide is general information about how these matters usually run. It is not advice, and nothing becomes advice until terms are agreed in writing. Brandleys Legal Ltd delivers reserved legal activities alongside regulated partners.