Clip Clearance in Italy

Why fair use does not travel to Italy

Producers used to US fair use or UK fair dealing often assume that a short, transformative use of a clip will be acceptable everywhere. In Italy it is not that simple. Italian copyright law, like that of other EU Member States, allows unlicensed use only within the specific exceptions listed in the Italian Copyright Act (Law no. 633 of 1941), which in turn must fit within the closed list of the EU InfoSoc Directive. There is no open-ended balancing test, and Italian courts tend to interpret exceptions strictly.

The practical consequence: a programme cleared on a fair use opinion in the United States may still need an Italian view before it is broadcast, streamed or distributed in Italy, and E&O insurers increasingly ask for one.

The quotation exception: what it covers

The main tool is Article 70 of the Italian Copyright Act. It allows the summary, quotation or reproduction of parts of a work, and their communication to the public, when they are used for criticism or discussion, within the limits justified by that purpose and provided they do not compete with the commercial exploitation of the work. The source must always be credited with the title and the names of the authors.

For audiovisual productions this generally means:

• the clip must serve the commentary, not illustrate or decorate the programme;
• its length must be proportionate to the point being made;
• it must not replace the experience of watching the original film;
• title and authors must be credited, on screen or in the credits.

Every clip is a separate assessment. In our advice notes we review each extract against these criteria and indicate whether it can be used under the exception, should be shortened or reframed, or needs a licence.

What other exceptions do not cover

Several defences that producers rely on elsewhere have no direct Italian equivalent or a much narrower one. Italy has no general exception comparable to the UK rules on incidental inclusion, and parody is not regulated by a general statutory exception: Italian courts assess it case by case, drawing on the case law of the Court of Justice of the EU. The news reporting exceptions in Articles 65 and following are designed for current affairs and rarely fit a documentary or entertainment programme.

Who owns an Italian film clip

Clearing a clip from an Italian film can involve several rights holders at once:

• the authors: under Italian law the co-authors of a film are the director, the authors of the story and screenplay, and the composer of the music. Their rights last 70 years from the death of the last of them to die, so many classic Italian films are still protected;
• the producer, who holds separate rights in the recording;
• the performers, with their own neighbouring rights;
• the music in the clip, which may need separate clearance and involve the Italian collecting societies.

The author’s moral right to the integrity of the work also applies. Editing, colourising or altering a clip in a way that distorts it can be challenged even when the economic rights are cleared. Claudia Roggero has written on this topic for Entertainment Law Review.

Archive footage, images and locations

Beyond film clips, Italian productions and foreign productions using Italian material often need to clear:

• archive footage from Italian broadcasters and historical archives, each with its own licensing terms;
• photographs, which in Italy follow different rules depending on whether they qualify as creative works or as simple photographs;
• image rights of people who appear on screen, governed by the Italian Copyright Act and the Civil Code, alongside data protection rules;
• cultural heritage: reproducing images of Italian monuments, museums and collections for commercial purposes can require an authorisation and a fee under the Cultural Heritage Code.

How we work

We act for producers, distributors and broadcasters directly, and as Italian counsel for media law firms in the UK, the US and elsewhere in Europe. A typical engagement is a short advice note in English with a clip-by-clip schedule (film, episode, duration, use, assessment, recommended action), delivered on a fixed fee quoted upfront. Where a licence is needed, we can identify the rights holders and negotiate it.

See also our pages on legal services for independent film and documentary producers and our areas of practice, or contact Claudia Roggero.

FAQ

Is there fair use in Italy?

No. Italy has no fair use or fair dealing doctrine. Unlicensed use of protected works is allowed only within the specific exceptions listed in the Italian Copyright Act, which courts interpret narrowly.

Can I use a short clip from an Italian film in my documentary without a licence?

Possibly, under the quotation exception in Article 70 of the Italian Copyright Act, if the clip is used for criticism or discussion, is proportionate to that purpose, does not compete with the film’s exploitation and is credited. Each clip needs its own assessment.

Is a classic Italian film from the 1950s in the public domain?

Often not. The rights of a film’s authors last 70 years from the death of the last surviving co-author among the director, the screenwriters and the composer, so many films from that period are still protected.

Do I need permission to film Italian monuments?

For commercial productions, reproducing images of cultural heritage owned by the State and other public bodies can require an authorisation and the payment of a fee under the Cultural Heritage Code. The rules depend on the site and the use.

Do you work with foreign law firms?

Yes. We regularly act as Italian counsel alongside media law firms abroad, in English, with fixed-fee advice notes for clearance questions.