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

[Jeff Williams]

Manon and all,

  Good article by MR. Dixon here.  We can all to a very great
extent, blame the MPAA for this...

Manon Ress wrote:

> 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
>
> Consumer Project on Technology in Washington, DC
> PO Box 19367, Washington, DC 20036, USA
> Tel.:  1.202.387.8030, fax: 1.202.234.5176
>
> Consumer Project on Technology in Geneva
> 1 Route des  Morillons, CP 2100, 1211 Geneva 2, Switzerland
> Tel: +41 22 791 6727
>
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
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