Copyright clearance seems like the weather. You can complain about it, but you can't do anything about it. Or can you? When we did some research at American University (with funds from the Rockefeller Foundation) on the problems documentary filmmakers have with copyright clearance, we discovered some weather patterns that are worth paying attention to—and doing something about.

We wanted to know how the current restrictive interpretations of copyright law—especially those that ignore the longstanding right of "fair use" without licensing of material under some limited circumstances—affect creativity. If that's what you want to know, then documentary filmmakers are the perfect poster children. That's because 1) they almost always have to quote something in the course of getting their work done, 2) they really care about accuracy in representation and 3) they really respect (and hope to benefit from!) copyright.

So we interviewed about 50 documentary filmmakers. My co-author, law professor Peter Jaszi, and I found that the problems documentary filmmakers have affect and even change their creative process. Here are the highlights:

 

• Budgets are ballooning around the rights clearance line. Look at Jonathan Caouette's Tarnation, whose $218 budget was inflated to $400,000 once rights were cleared.

• Quoting commercial films and music is a huge headache. Movies and music often have layers and layers of rights to clear, and there's no sympathy for the low-budget world of documentary.

• Doc makers sometimes end up reluctantly faking, cheating or even self-censoring. Filmmakers told us that they turn off radios and TVs and substitute one sound for another in existing footage. They also steer away from rights-laden project ideas—commentary on popular culture, satire, parody, music films and especially historical films that analyze archival footage.

• Gatekeepers ignore existing rights. Time and again, filmmakers told us, "The broadcaster, the cablecaster, the insurer, the distributor won't even touch our work unless we clear all rights—even if we are within our rights to invoke fair use or we've done due diligence."

• Sometimes it's possible to use fair use. The majority of filmmakers we talked to told us that they sometimes invoke fair use, but can't talk about it in public for fear of alienating their gatekeepers (the insurers, broadcasters, etc). A few hardy souls showed us exactly where they used fair use, though—including Robert Greenwald, who faced down Fox in Outfoxed.

 

The big losers aren't just filmmakers, but all the rest of us who want to watch their movies about our own culture. These filmmakers' stories add up to a story of a culture whose storytelling capacity is being muffled.

What many filmmakers wanted was a clearer understanding of how fair use is used and can be used. That turned out to be one of our recommendations: a collectively created document showing how fair use is and can be invoked in documentary could then become an industry standard, and a reassuring baseline for gatekeepers. We'll be meeting with filmmakers over the next year to shape such a document. If you want to find out more, visit http://centerforsocialmedia.org/rock/index.htm. And if you want a copy of our report, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentrary Filmmakers -along with a seven-minute movie that explains it all with pictures-get a free DVD by writing socialmedia@american.edu and giving us your mailing address.

Here is a sampling of observations from some of the filmmakers we interviewed for this report.

 

Katy Chevigny—On Nuyorican Dream, we had cleared all the music in the film, which was incredibly elaborate and complicated and expensive. The only thing we hadn't cleared was "Happy Birthday," which we didn't realize [we had to clear] until legal counsel told us. The film is about five poor people in Brooklyn and at the end of the film, they sing "Happy Birthday" for the mother. We were working with this most-favored-nations clause, where people were paying $500 a song. They wanted $2,000, and it was up until the wire that the "Happy Birthday" people wouldn't agree to go as low as $500. Mind you, this is a low-budget, $150,000 documentary. [At this point, Chevigny's lawyer advised her to tell Cinemax that Nuyorican Dream could not be broadcast because "Happy Birthday" had not been cleared.] I said, There's no way I'm doing that. I'm just going to risk the lawsuit. It's not something you should do, but I felt I had to take that risk-to put the production in jeopardy in order to not ruin my relationship with the broadcaster. They finally processed it and I wrote them a check for $500 and it was done. As an independent filmmaker, you're constantly not having to lie, but having to promise things that you don't have totally in order just to get the ball rolling.

Gordon Quinn—In our budgets we're building in more and more money for rights. We think we know what we're doing; we're pretty experienced filmmakers. But we were $100,000 off on our rights for The New Americans. We just didn't have enough money budgeted for it, and it's becoming a huge strain on the project. That $100,000 is after we made all kinds of compromises. You really have to budget for it and think it through and think about what markets it's ultimately going to go into.

If you look at our older films—The Chicago Maternity Center, The Last Pullman Car—we used all kinds of images and music that used to fall under blanket PBS policies. We couldn't make those kinds of films today. Things have shifted in the last year or two because of the off-air taping rights that we agree to with PBS for the educational part of their contract, which isn't covered by the blanket policy. So they tell you, no, you still have to clear the rights.

In The New Americans, we took out a lot of the baseball footage that we would have had to license. The Major Leagues gives you permission to shoot in the locker room, so it's our crew and our footage. But you still have to license it as if you were buying it from them. We were also thinking of doing certain kinds of things about the baseball story because there was some commercial interest in it, but we probably won't do it, partly because we're aware of the cost of licensing.

We need to really form a new kind of movement and people need to start communicating with each other and form a coalition to defend fair use. It's really important to our democracy that we have this freedom, and it's going away, because the corporate interest is saying, You've got to pay for everything. They want to limit fair use to the narrowest kind of use.

 

Jon Else—A good example of a film that is now out of print that you can't get because the rights have expired is the series Eyes on the Prize [which Else worked on]. It is no longer available for purchase. It is virtually the only audio-visual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is 50 percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost $500,000 to re-up all the rights for this film. This is a piece of landmark TV history that has vanished.

Robert Stone—Part of the story of Guerrilla was how it permeated the culture. On Saturday Night Live, they lampooned [Patty Hearst] and the SLA mercilessly. There's something great of Gilda [Radner] as Tania; they're at home again playing Scrabble with their parents, and her sister says, "SLA? That's not a word," And she goes, "Oh yeah? What about cole sla?" It would have been great for the film. Not only are people drawing on Hollywood films for the fantasies, but they are fed back into the culture the other way. SNL wanted $11,000 for a 30-second clip. There's no way in hell I could pay it. It's too bad. The film suffers.

I have worked outside the compilation format, and it was such a relief. I vowed after doing it, "Why should I ever go back to these horrendously expensive compilation films?" There are fewer and fewer filmmakers with historical subjects. Who's going to give you half a million dollars to make your first film? The budget for Guerrilla was about that. And that was cheap. If I hadn't called in all the favors, it would have been a million dollars.

I tell people not to do it, because you can't justify it financially. It's become prohibitive. Why do you think The History Channel is what it is? With low budgets, nobody has time to research in archives any more. People call me up to crib from my films because they don't have time or money to do the real research.

My film on Hollywood and Vietnam could be an amazing film but I'm in a straitjacket for what I can do. If I want to use a clip from a Hollywood film, I can't release it on DVD or overseas or in theaters; only on cable TV. AMC wanted all rights, but even for cable it's $7,000 a clip, plus SAG minimum for all actors on screen, plus music. So maybe that's $10,000 a minute. This is a film about how a very important aspect of American history has been interpreted in film and how popular culture shapes our understanding of history. It's crazy because this is an ad for these very movies. People might see the movie and rent the DVD.

 

Untold Stories: The Consequences of Copyright Clearance Culture for Documentary Filmmakers was produced by the Center for Social media and the program on Intellectual property and the Public Interest at American University.

 

Pat Aufderheide is professor and director of the Center for Social Media at American University In Washington, DC.