| WCL-SOC
study: Legal issues mean untold stories in film world BY
SALLY ACHARYA
The would-be basketball star was turning 18, and the documentary
cameras were at his birthday party when something happened that
would cost more than $15,000.
The
family sang “Happy Birthday.”
For
the documentary Hoop Dreams, which follows two inner-city
Chicago youths from their freshman year of high school to their
first year in college, the filmmakers learned a lesson with repercussions
not only for documentary makers but for academics. If you want to
reproduce a few seconds of a popular song, or a clip of the evening
news, or even a shot of someone with a trademark on his baseball
cap, you could end up with a choice between paying thousands of
dollars for the rights or risking a lawsuit.
In
a joint study by the School of Communication (SOC) and Washington
College of Law (WCL), AU students and faculty interviewed 45 filmmakers
about the impact of copyright restrictions on documentary films.
The study was led by SOC’s Patricia Aufderheide, Center for
Social Media, and WCL’s Peter Jaszi, a specialist on copyright
law who heads the program on intellectual property and the public
interest.
What
they found has implications beyond the film world. “I am extremely
concerned for the future of academic research,” said Joseph
Turow of the University of Pennsylvania at a panel last week that
launched the study and discussed its findings.
Many
younger scholars, Turow said, are coming into the academic ranks
with technology skills. They will increasingly want to create CD-ROMs
for their courses and may not be aware of the possible legal repercussions.
“I really believe there ought to be laws that say you use a
minute from a TV show and 15 seconds from a song, you shouldn’t
be able to be sued,” Turow said.
But
as it stands today, that’s just what could happen, in spite
of the widespread assumption that such uses are permissible. The
result is a Catch-22. Artists want to retain control over their
intellectual property, and yet those very controls that protect
artists can be so restrictive that they keep other work from being
created.
Documentary
makers need to use existing images, whether it’s a historical
photograph or a moment from last week’s news, or they simply
can’t do their jobs. They also need music to set the mood,
and often, that means pre-existing music. While a composer can be
hired for the job, that brings it’s own complications and can
sometimes be far less desirable. Picture, for instance, a documentary
about the 1960s without the music.
All
of those images and sounds, however brief, require a lengthy and
costly rights clearance process. And those are just the intentional
quotes. Whenever documentary cameras roll, radios play in the background,
families watch TV, and advertising images flash in the background.
Even
songs that might be assumed to be in the public domain, such as
“God Bless America,” cost money. And just because songs
may be available at a public institution, such as the Smithsonian,
doesn’t mean they’re free to the public. Filmmaker Jeffrey
Tuchman told the AU audience about a problem in a film he is currently
making about the civil rights movement. He wanted to use songs available
on a Folkways Records/Smithsonian collection called Voices of
Civil Rights, but a single minute of a song would cost $3,500.
The
rights clearance process also brings another complication: When
footage is requested, it can simply be refused. Fox and NBC News
both denied producer Jim Gilliam the rights to include talk-show
footage of George W. Bush and Condoleezza Rice in Uncovered:
The War on Iraq, Gilliam told the audience at AU’s law
school. For the documentary that became Outfoxed: Rupert Murdoch’s
War on Journalism, “We were pretty confident they wouldn’t
let us use any footage,” so he taped Fox for 24 hours a day
for several months and prepared for a lawsuit.
Fox
didn’t sue. Gilliam speculates that a previous lawsuit against
comedian-author Al Franken had increased sales of his book, and
Fox didn’t want the publicity. But while Gilliam was willing
to work with the prospect of a legal battle hanging over his head,
most documentary makers don’t have that luxury. They are working
on shoestring budgets—or, as Turow said, may work at universities
whose deans discourage anything that could bring on a lawsuit.
The
result? Some movies don’t get made, others can’t be reissued
or get excluded from whole markets, and small filmmakers are increasingly
unable to tackle many subjects from the civil rights movement to
popular culture.
Strange
Fruit, a documentary about lynching, used music that couldn’t
be cleared for home video, so it can’t be rented.
The
“American Experience” documentary Ella Fitzgerald—Something
to Live For cost over $1 million to make, with the music rights
eating up about 60 percent of that. If it hadn’t been funded
by an operation with deep pockets, it couldn’t have been made.
The
classic documentary on the civil rights movement, Eyes on the
Prize, can no longer be shown on TV because the filmmakers had
only enough money to purchase five years’ worth of rights of
its archival footage. The five years’ license has expired,
the company that made the film is gone, and the rights have lapsed.
“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,” series producer Jon Else
told the AU researchers.
Panelists
at last week’s launch were Turow, Jaszi, Mike Madison of the
University of Pittsburgh Law School, and filmmakers Gilliam, Grace
Guggenheim, and Tuchman. “This has been an extraordinary experience,”
Jaszi said of the interdisciplinary study. “Those of us who
work in law tend to work at a very high level of abstraction. [The
study] shows the way law actually effects people and the way they
do their jobs.”
The
complete report, “Untold Stories: Creative Consequences of
the Rights Clearance Culture for Documentary Film-makers,”
in-cludes recommendations and is online at www.centerforsocialmedia.org/rock/index.htm |
