[Paleopsych] How copyright could be killing culture

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How copyright could be killing culture
Globe and Mail (Toronto), 5.1.17

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


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.


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

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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