[Videolib] Fwd: Will the high cost of permissions for archival

Philip Fryer (PDF@loyola.edu)
Wed, 19 Jan 2005 09:29:43 -0500

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Hello folks,
This may be a redundant posting - if so, forgive me. But dog-gone it,
this is serious!
- Philip

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

The Globe and Mail (Toronto) Monday, January 17, 2005 -
By GUY DIXON

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.


Philip Fryer
Media/Systems Librarian
Loyola Notre Dame Library
200 Winston Avenue
Baltimore, MD 21212
pdf@loyola.edu or pfryer@ndm.edu
voice: 410-617-6871
cell: 443-527-4726
fax: 410-617-6896
www.loyola.edu/library/mediahome.htm

--=__Part6E4ECCC7.0__=
Content-Type: text/html; charset=ISO-8859-1
Content-Transfer-Encoding: quoted-printable

Hello folks,
This may be a redundant posting - if so, forgive me.  But = dog-gone it, this is serious!
- Philip

[fwd]
The high cost of getting permission to use archival footage and = photos
threatens to put makers of documentaries out of business
 
The Globe and Mail (Toronto) Monday, January 17, 2005 -
 By = GUY DIXON
 
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/ind= ex.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 photographi= c 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.
 
Philip Fryer
Media/Systems Librarian
Loyola Notre Dame = Library
200 Winston Avenue
Baltimore, MD  21212
pdf@loyola.edu or pfryer@ndm.edu
voice: 410-617-6871 
cell: 443-527-4726 =
fax: 410-617-6896
www.loyola.edu/library/mediahome.htm
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