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The 2nd International Documentary Congress: Concepts of Intellectual Property

By Rich Samuels

DC's "Concepts of Intellectual Property" panel, sponsored by Grinberg Film Libraries, gave an eager audience the opportunity to learn about important legal issues that affect every nonfiction film and videomaker. Led by moderator Michael Donaldson, an entertainment attorney and author of the new book The E-Z Guide to Trademarks and Copyrights, the panel included copyright attorney Eric Schwartz of the firm Proskauer, Rose, Goetz, and Mendelsohn; Mitchell Block, president of the distribution company Direct Cinema Limited; and award-winning feature film director Martha Coolidge, who serves on the Board of Trustees of the Artists Rights Foundation.

Donaldson described how by purchasing your subject's rights, you can protect yourself as a filmmaker: "When you purchase these rights, what you get is cooperation, consultation, a waiver of the right of privacy, and a waiver of the right to publicity." Schwartz elaborated, but with a word of caution: story structure and narrative can be protectable elements

of copyright. For instance, if you take a story such as a famous case or trial, thinking you are just using the facts, and tell the facts in sequence, you may unknowingly be telling them in the same narrative form as a previously produced film.  You can get yourself into legal trouble, even though the facts and characters in your piece are public. Schwartz's advice: "Do not watch any projects made about your subject.  Read the newspaper instead, and take your facts from that source. Then proceed with creating your own unique story structure and narrative."

In the United States, the current term of copyright for works created after March 1989 is 75 years, provided that the copyright owner is a corporate entity.  If the copyright owner is the "natural author"-that is, if you as a filmmaker are the owner and creator and you register the work in your name-your work will be protected for the duration of your life

plus 50 years following your death. Schwartz noted that there are new and pending copyright laws of which every documentarian should be aware.  As of January 1, 1996, all non-U.S. materials that were previously in the public domain in the United States will be restored to copyright.  There has also been talk of a copyright term extension that would lengthen the current 75-year term another 20 years.  As for new media, Block briefly discussed protection and copyright on the Internet and suggested that "whenever possible you give yourself continuous on-screen credit, like an I.D. logo in the bottom corner or your name somewhere on the screen."  Copyright issues relating to the Internet are still in their infancy.

Documentary filmmakers should know that in some cases copyright laws don't protect them.  Coolidge commented, "If you create and produce a documentary for a company on a work-for-hire basis, you are no longer the author of that work.  It is owned by the company that hired you.  As the legal author of that work, they can recut and change your vision at their own discretion. This is perfectly legal in the United States." The Artists Rights Foundation, which was started to educate Congress on the moral rights of filmmakers, believes that even  though someone may own your work in theory, they are not the creative author of the work-a concept  that is accepted in many foreign countries but is difficult to understand in the United States.

Block stated that "another growing concern in the United States is the unauthorized lifting of footage from documentary films.  Studios and independent producers are using these films as research and/or stock footage for their own projects with no payment, compensation, or credit to the filmmaker."  Though government archives are a rich source of material for documentarians, he suggests that when selecting footage for your project you should verify that it is "protectable. "While you may not be able to protect public domain footage contained within your film," Block added, "your soundtrack and cutting sequence are protected by law." Schwartz stressed what a valuable and rich source the Library of Congress is to documentary  filmmakers. "In addition to the enormous photographic still collection," he said, "the Library of Congress houses the largest film library in the United States."

The most important information imparted to attendees was that documentary filmmakers must keep a constant eye on the business aspects of production as well as the creative and that they must be prepared to protect themselves and their work from the earliest phases of preproduction on through to distribution, both to primary and to ancillary markets.

The 2nd International Documentary Congress Special