[Ecommerce] FYI: Eyes on the Prize and cost of permission

[Manon Ress]

Interesting article today on Martin Luther King Jr's day.  Also check
out  American Univerity study:
http://www.centerforsocialmedia.org/rock/index.htm

How copyright could be killing culture
http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050117/DOCS17/TPEntertainment/TopStories

The high cost of getting permission to use archival footage and photos
threatens to put makers of documentaries out of business

By GUY DIXON
Monday, January 17, 2005 - Page R1

As Americans commemorate Martin Luther King Jr. and his legacy today, no
television channel will be broadcasting the documentary series Eyes on
the Prize. Produced in the 1980s and widely considered the most
important encapsulation of the American civil-rights movement on video,
the documentary series can no longer be broadcast or sold anywhere.

Why?

The makers of the series no longer have permission for the archival
footage they previously used of such key events as the historic protest
marches or the confrontations with Southern police. Given Eyes on the
Prize's tight budget, typical of any documentary, its filmmakers could
barely afford the minimum five-year rights for use of the clips. That
permission has long since expired, and the $250,000 to $500,000 needed
to clear the numerous copyrights involved is proving too expensive.

This is particularly dire now, because VHS copies of the series used in
countless school curriculums are deteriorating beyond rehabilitation.
With no new copies allowed to go on sale, "the whole thing, for all
practical purposes, no longer exists," says Jon Else, a California-based
filmmaker who helped produce and shoot the series and who also teaches
at the Graduate School of Journalism of the University of California,
Berkeley.

Securing copyright clearances isn't just a problem for the makers of
Eyes on the Prize. It's a constant, often insurmountable hurdle for
documentary filmmakers and even for writers wanting to reproduce, say,
copyrighted pictures or song lyrics in their work.

But it's particularly difficult for any documentary-makers relying on
old news footage, snippets of Hollywood movies or popular music -- the
very essence of contemporary culture -- to tell their stories. Each
minute of copyrighted film can cost thousands of dollars. Each still
photo, which might appear in a documentary for mere seconds, can run
into the hundreds of dollars. And costs have been rising steeply, as
film archives, stock photo houses and music publishers realize they are
sitting on a treasure trove, Else and other filmmakers say.

"The owners of the libraries, which are now increasingly under corporate
consolidation, see this as a ready source of income," Else says. "It has
turned our history into a commodity. They might as well be selling
underwear or gasoline."

And there's another catch: tighter legal restrictions.

Copyright legislation has grown stricter in recent years to protect
media owners from digital piracy.

Broadcasters and film distributors, in turn, have become more stringent
in making sure they are legally covered, too. As illustrated in a recent
study by the American University in Washington, which interviewed dozens
of documentary-makers on the myriad problems of getting copyright
clearances, broadcasters and film distributors insist that a documentary
have what is known as errors and omissions insurance, to protect against
copyright infringement. Of course to get it, all copyrights in the
documentary have to be cleared anyway.

It's enough of a legal rigmarole to make underfunded filmmakers simply
avoid using archival clips altogether or to remove footage that they
shot themselves that might include someone singing a popular hit or even
Happy Birthday to You (a copyrighted song).

It also means that films like Eyes on the Prize, made in a less
restrictive era of copyright rules, can simply fade away if the task of
renewing copyrights becomes too difficult or costly.

"What seems on the face of it a very arcane, bureaucratic piece of
copyright law, and the arcane part of insurance practice, suddenly
results in the disappearance of the only video history of the American
civil-rights movement . . . slowly and without anyone noticing it," says
Else.

Ironically, the growing popularity of documentary films these days is
only making things worse.

The explosion of digital channels, the DVD market and even the use of
documentary footage on the Internet have created a new level of success
for documentaries, explains veteran National Film Board producer Gerry
Flahive. But "suddenly for people who have companies that own
stock-footage collections, the material is more valuable. So it has
become more expensive."

Before the digital and documentary explosion, a clip of President Nixon
speaking, for instance, usually could be licensed "in perpetuity,"
meaning that the film could continue to use the footage indefinitely.
Now the incentive is for copyright owners to grant only limited
permission. "Increasingly, it's harder and harder to get 'in
perpetuity,' because rights-holders realize that somebody will have to
come back in five years or 10 years and pay more money," Flahive says.

Some are calling this the new "clearance culture," in which access to
copyrights affects the creation of new art as much as, if not more than,
actual artistic and journalistic decisions. It also means that access to
copyrighted footage is only open to those filmmakers with the deepest
pockets (or many lawyers on their side).

"You can afford it if the broadcasters pay you a significant amount of
money to do the film. If they don't, and they aren't, the issue facing
all documentary filmmakers in Canada . . . is that it is getting harder
and harder to get a reasonable budget together," Ottawa-based filmmaker
Michael Ostroff says. "It's a serious, serious problem."

The American University study (at
http://www.centerforsocialmedia.org/rock/index.htm) is a fascinating, if
dispiriting, look at the tricks documentary-makers have to pull to get
around copyright restrictions, from turning off all TVs and radios when
filming a subject indoors to replacing a clip of people watching the
World Series with a shot of professional basketball on the TV set
instead because that's what the filmmaker had rights for.

But at a time when documentaries are probing the U.S. war on terrorism
or globalization, for instance, in ways that are more in-depth than
typical mainstream news media, the question of whether copyright
restrictions are creating a blinkered view of the world is a serious one.

"Why do you think the History Channel is what it is? Why do you think
it's all World War II documentaries? It's because it's public-domain
footage. So the history we're seeing is being skewed towards what's
fallen into public domain," says filmmaker Robert Stone in the American
University study.

Flahive at the NFB said that this pushes filmmakers to tell stories in
more innovative ways. Animation, for example, is becoming a new vehicle
for documentary-makers.

Else of Eyes on the Prize isn't as giving. "Would you rather see the
footage of the actual attack on the [civil-rights] marchers at the
bridge in Selma, Ala., in 1965, or would you rather see a re-enactment
of that? There is no creative substitute for the real thing," he says.

"In a culture that increasingly has trouble separating the real thing
from something that's made up, I think that having the real photographic
record of real events on television screens in our living rooms is
priceless. It's invaluable. And it's becoming increasingly difficult,"
he says, adding that he doesn't feel comfortable with the idea that
creative decisions should have to be based purely on the basis of
copyright rules.

There are ways around the rules, though. The legal defence in the United
States of "fair use" means that footage can be used if the documentary
is specifically critiquing that footage. So, a documentary-maker could
use a clip of Gene Kelly splashing around in Singing in the Rain, if the
documentary is commenting on Hollywood musicals and that one in
particular, Else says. A documentary on rain, however, couldn't use the
clip. But having to use "fair use" as a legal defence means that the
documentary-maker is coming under legal pressure. Many simply can't
afford the legal fees to get out of that kind of situation.

Documentary-makers typically say they want copyright controls
maintained, as the American University study found. They just want the
costs and restrictions on copyrighted material to be made more rational.
A music publisher should allow more concessions for a documentary-maker
using a song for a film airing on public television, as opposed to
someone using a song for a Nike commercial.

But with the possibility that copyright rules could easily tighten
further, there's growing concern about the impact this could have on
documentaries, as it has on Eyes on the Prize. As the award-winning
filmmaker Katy Chevigny says in the American University report: "The
only film you can make for cheap and not have to worry about rights
clearance is about your grandma, yourself or your dog."

--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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