How copyright could be killing culture

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."