Copyright vs. Creativity

June 1, 2005 by Kimberley Brown

At the sixteenth pole, Go for Wand was in front by a head. The race between the three-year-old filly and the elder Bayakoa was among the most anticipated of the 1990 Breeders’ Cup, and the horses hadn’t disappointed. For more than one and a half kilometers, they were side by side. Yet nobody could have predicted how the race would be won. Close enough to the finish line to taste victory, Go for Wand broke a front leg and

fell, throwing off jockey Randy Romero head first. Not ready to concede, however, the horse leapt back up and tried to finish

the race on her three good legs. She was quickly stopped and eventually euthanized only a few meters from the 50,000 spectators. Bayakoa was declared the winner by 6 3/4 lengths.

NBC captured the tragedy on national television and the network still holds the U.S. domestic rights for the footage, which N.Y.-based filmmakers Kate Davis and David Heilbroner of Q-Ball Productions asked to license for their 2004 Emmy-winning film Jockey. The HBO-commissioned doc goes behind the colorful silks of three riders, Romero among them, to look at how the demands of the job effect their lives. ‘We wanted to license that clip not because it was sensational, but because it was a pivotal moment in Randy’s career,’ says Heilbroner.

HBO has deep pockets, so it could afford what NBC demanded for the clip, which was roughly the cost equivalent of a 2005 Volkswagen Jetta. Money also wasn’t an issue when it came to clearing the foreign rights with the Breeders’ Cup – the group simply refused to license the clip if the filmmakers intended to include footage of the accident.

It’s understandable why the Cup would rather forget such a horrific event, but Heilbroner bristled at the attempt to edit history. And while he eventually succeeded in securing the unfettered rights, the confrontation continues to bother him. ‘Theoretically, if they owned both foreign and U.S. rights, they could make this moment disappear. This is the nature of copyright,’ he says.

The incident illustrates the multiple frustrations filmmakers are dealing with more and more frequently when trying to access third-party content. Call any doc-maker and chances are they’ll have a litany of tales about receiving exorbitant cost quotes, trying to track down elusive copyright holders, or being denied the right to quote works altogether. The impact on the documentary genre is both creative and financial, and the general consensus is that while the situation around copyright clearance (especially in the lawsuit-happy U.S.) has degraded over the past two decades, things are only going to get worse.

Not everyone is willing to accept such a fate. Considering the alternative, efforts are already underway to find solutions to the most pressing problems – the key one being the rising cost of clearing rights. In a study by American University titled ‘Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers,’ researchers came to the same conclusions as those above: clearance costs are high and

the process is arduous. In response, it recommends developing a statement of best practices so that filmmakers can take better advantage of ‘fair use.’

Fair use is a limitation on copyright protection in the U.S. (a similar defense called ‘fair dealing’ exists in the U.K.) that allows people to use copyrighted material for the purposes of comment, criticism, news reporting, teaching,

or scholarship and research without securing permission or paying a fee. But the line between what qualifies and what doesn’t isn’t well defined. Consequently, producers and gatekeepers generally hesitate to invoke fair use as a defense.

‘We never say fair use to an underwriter. Ever,’ says Debra Kozee, president of C&S International Insurance Brokers in New York. ‘Fair use is a defense and underwriters don’t want to get to the point where they’re defending a claim.’

Kozee adds that even if a producer hires a lawyer who successfully convinces an insurer’s attorneys that a use qualifies as fair and there’s no risk of a lawsuit, there will likely be a specific exclusion in the final Errors & Omissions policy for the item in question. ‘The underwriters are not looking at it from the position of is it right or wrong legally – is it really fair use,’ says Kozee. ‘They’re looking at, ‘What are the possibilities of someone claiming against us?’ whether or not it’s legitimate.’

Peter Jaszi and Patricia Aufderheide, the principle investigators behind ‘Untold Stories,’ contend that a statement of best practices generated by the factual film community would substantially minimize the possibility of

a claim. ‘When a court considers fair use, their inquiry often devolves into whether or not the practice in question was undertaken in good faith and was reasonable,’ explains Jaszi. ‘Well, what defines good faith? What defines reasonable?

‘We believe that if there’s a clear, relatively detailed statement of best practices from filmmakers, content owners will be even less likely than today – and that’s pretty unlikely – to bring lawsuits. The last thing any content owner wants to do to bring a case against a user and lose. That makes a precedent.’ The existence of such a statement, then, would hopefully have a ripple effect, encouraging filmmakers to utilize fair use, and convincing broadcasters and insurers to accept it.

As filmmakers are both content users and content creators, Jaszi says, reaching a consensus won’t be easy. However, the duo is hoping to help doc-makers generate best practice guidelines by November. Several major organizations have agreed to help them meet that target and publicize the results, including the International Documentary Association (IDA) in l.a. and the National Alliance for Media Arts and Culture (NAMAC) in San Francisco. ‘It makes sense to start with a code,’ adds Aufderheide. ‘Until then, you don’t have anything that changes the environment, you’re just putting out fires.’

The rise of intellectual property

In the last 25 years, says Jaszi, the business models around intellectual property (IP) have changed significantly. ‘Entities such as movie studios that once made money by selling new product are increasingly viewing catalogs as an important revenue source,’ he explains. ‘What people used to think of as marginal, unimportant and secondary has suddenly become a big focus of public and private attention.’

Jaszi chalks up the change to the Copyright Act of 1976, which removed the stipulation that for copyright protection to continue beyond the initial 28-year period on works created in 1978 or later, one had to register a renewal (the renewal was abolished completely in 1992). ‘We moved into an environment where copyright protection became ubiquitous rather than exceptional,’

he says. It took a while, but businesses eventually figured out the implications of the Act and began taking advantage of their newfound assets.

Montreal-based sales agent Jan Rofekamp of Films Transit International asserts that the explosion of specialty channels is also responsible for rising rights costs. Where once there were a few history docs needing archive material, there are now dedicated channels hungry for content. Stephen Ives, founder of Insignia Films in New York, points to the more recent proliferation of Internet commerce as another reason people are more attuned to the profit potential of ip. ‘And it’s often a false sense of profit,’ he says. ‘I’ve come across private collectors who have a wildly inflated sense of the value of their holdings. They think everybody can charge the same as Corbis, but it isn’t realistic.’

Heilbroner and Davis are currently dealing with this very issue for their feature Pucker Up: The Fine Art of Whistling. Even to clear the publishing rights for an obscure song recorded in 1927, a large music house is asking US$8,000. Says Heilbroner, ‘If you multiply that by the number of tunes in the film…’ It amounts to about $100,000 for all media, says Rofekamp, who’s handling the doc.

‘Most of the sales we’ll make are small sales to Finland, Holland, Portugal of about €2,000 to €6,000 ($2,500 to $7,600) a pop,’ he continues. ‘If you make 15 of those, which is about 3/4 of a year’s work, you’ve barely made that $100,000 if you don’t get a big deal in the U.K., France, Germany and in the U.S.’ To compensate, the filmmakers have eliminated or changed many of the clips for the one-hour TV version, reducing the archive from 25% to 10% of the film and lowering rights costs to $25,000.

Rofekamp says one of the first things he discusses with a filmmaker is copyright clearance. ‘If it costs more than $300,000 to clear, we’re not going to touch it,’ he notes. Like everyone else, he wants all rights for all media in perpetuity. ‘But we can do a deal with a 10-year clearance, broadcast only,’ he says. And some stuff isn’t cleared for DVD. Like internet rights, DVD is a difficult and expensive right to acquire. ‘Increasingly, material will not be available beyond broadcast, because people just can’t afford it,’ notes Rofekamp. He

is currently investigating whether it’s financially feasible to obtain the rights to release Anne Makepeace’s doc Robert Capa: In Love and War on disc.

For the world, it’s gonna cost ya

Alison Smith, the associate director of research and stock sales at Boston-based PBS station WGBH says it’s important to remember that the increase in rights costs

is related in part to the ubiquitous demand for ‘all rights for all media in perpetuity.’ ‘[Archives] are willing to work with

you, they’re willing to come up with documentary rates,’ she says. ‘But, you can’t say, ‘I’m going to distribute this everywhere possible and I want the cheapest rate you can give me.”

Producers, in turn, complain that broadcast license fees haven’t kept pace with the related rise in rights costs. Smith concedes that some rights are essential – WGBH accepts, at minimum, worldwide TV, audiovisual and internet rights for 10 years. She also concedes that even some of those might not be available: ‘New technology is always very expensive because nobody knows how things are going to shake down. [Archives] charge a little bit more than they will in maybe 10 years, depending how the market bears out.’

Smith helped clear the rights for the seminal PBS series Vietnam: A Television History, which originally aired in 1983. Whether the same film could be made today is uncertain. ‘If you went to a small historical society then, they were happy to just give the rights to you, especially if you were public television. Nowadays that doesn’t happen,’ says Smith.

Many small archives have been gobbled up. In a less competitive marketplace, the larger ones can charge more. Also, because material is under copyright much longer than it ever was before – the ‘Sonny Bono’ Copyright Term Extension Act passed in the U.S. in 1998 extended copyright protection to the life of the author plus 70 years – less content is falling into the public domain. Footage of contemporary history, film clips and music, for example, are only available if purchased – and these particular areas usually fetch a high, if not a prohibitively high price. Considering that the average ‘American Experience’ program is 30 minutes of original content and 30 minutes of third party content, the impact is clear.

‘We’re producing a lot of Jesse James and the gold rush and things like that,’ says Smith. ‘It’s not necessarily because of costs, I don’t think, though recent history is definitely more expensive to produce.’ She adds that the strand is starting to move away from archive music because of rising costs, and is opting instead to buy library music or to recreate a sound with original music.

Building a house of cards

Factual film producers admit that clearing rights comes with the profession, and that it has always been a bother. One tactic for controlling prices has producers trying to get rights holders to sign a most favored nations deal, wherein all parties agree to the same payment conditions. Insignia Films’ Ives compares the process to building a house of cards. ‘The last publisher that finally gets back to you can refuse to accept the deal,’ he says. ‘If you have four pieces of their music already cut into your film, then you’re left will a tough choice: you either accept their higher rate and the ripple effect shoots your budget through the roof, or you spend the money and the creative time to take the music out of your film even though it’s exactly the music you want.’ Ives is presently negotiating a most favored nations deal for American Comedy, a 4 x 1-hour series for PBS/WETA in Washington, D.C. that will air in 2007.

Susan Lacy, the executive producer of PBS’ ‘American Masters’ strand from New York’s Thirteen/WNET, found a powerful partner in Hollywood to help circumvent the sky high license fees for movie clips. For the recent James Dean: Sense Memories, Warner Home Video gave Lacy free access to all three James Dean movies, as well as a small sum of cash. In exchange, Warner was given the DVD rights to the film. Without such a deal, Lacy says James Dean could not have been made. At least a third of the doc is Warner clips, which she says would have cost about $10,000 per minute. Their next collaboration will be for a doc on John Ford and John Wayne.

Rofekamp, who just picked up James Dean for the international market, notes that for the most part ‘documentaries that use Hollywood clips have become almost impossible.’ Even if a producer can afford the rights, just getting rights holders to pick up the phone can be a challenge. Unless, of course, the filmmaker knows the right people – or has the clout of PBS behind them. And how often does that happen?

Eight Ways to Save

By Kimberley Brown

At the end of 2004, Robert Armstrong of Montreal-based strategic planning firm Communications Media completed a report for the National Film Board of Canada that looked into the problem of acquiring rights, as

well as strategies to overcome those problems. Here, he offers eight tips for both preventing and coping with rising rights costs.

1. Make a plan early, then stick to it

Filmmakers often get to the editing phase before they realize there are insufficient funds for the rights they need. Do some investigating beforehand and go into detail when budgeting during development. Then be disciplined about keeping to the budget; don’t let earlier emergencies eat up what money was set aside.

2. Consult a legal advisor

Once you know what material is likely, have an attorney advise on options. i.e., Is fair use applicable? Are any items in the public domain? Don’t pay for things you can get for free.

3. Hire an experienced researcher or negotiator

Even bringing someone onboard for half a day can save money and prevent hassles. A researcher can help plan scene selections and recommend ways to economize.

4. Use original music

Rights to most well-known songs are held by about five large international music publishing houses that rarely negotiate prices. A cheaper option is to acquire the synchronization rights for a song and then make an original recording. If you must have a pre-recorded song, hire a rights negotiator.

5. Eliminate unnecessary rights

It’s not always feasible to acquire all rights for all media in perpetuity. If there’s no chance for a theatrical release, forgo those rights. Consult a distributor to find out what’s necessary.

6. Include a renewal clause in copyright contracts

Many rights holders will only license material for a five- or six-year window. A renewal clause, even if it doesn’t stipulate the price for renewal, creates a moral obligation for the contracting parties to negotiate new terms.

7. Involve the rights holder in the filmmaker’s vision

Especially when dealing with personal archives, involving rights holders in the film can mean they’re more amenable to negotiating rights.

8. Take advantage of institutional agreements

Large organizations such as the NFB, PBS, CBC, etc., have agreements with other companies that help get extended rights windows or prices below rate card. A pre-sale to one such company means there’s an opportunity to use any quid pro quo arrangements.