[DMCA-Activists] Killing Culture by Copyright

[Seth Johnson]

> http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050117/DOCS17/TPEntertainment/Film


How copyright could be killing culture

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."

-- 

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