Thanks to downloading and streaming, embedding and social networks, ours has become a society of content sharing. So it’s no wonder that this mentality has infiltrated the world of documentary filmmaking. Some in the industry are embracing the concept of open content, which allows the creator to maintain certain rights while voluntarily giving up others. While the greatest benefit for documentary filmmakers is that open content material can be seen by a wider audience, there are elements of the Copyleft movement that docmakers should take careful note of.
Copyleft is a reaction to copyright law, whereby the axiom ‘all rights reserved’ becomes ‘some rights reserved.’ In the digital age, footage can still be locked down like Fort Knox, or it can flow through the Web on YouTube, embedded on blogs and beyond. ‘Copylefted’ materials fall somewhere in between the spectrum, with the creators of the footage having the power to allow certain liberties, but it falls short of a free-for-all.
Creative Commons licenses are the most widely known and standardized licenses that offer an alternative to the rigidity of copyright law. Created in 2001 by cyberlaw and intellectual property expert Lawrence Lessig, Creative Commons offers six different licenses that creators can apply to their work. The licenses can be fairly restrictive, such as the Attribution-Non-Commercial-No-Derivatives version, where the work can be passed along non-commercially as long as the creator is mentioned and linked back to, but it cannot be changed in any way. But there are more relaxed licenses, such as Attribution 3.0, with which others are allowed to distribute, remix and build upon the work, even commercially, as long as credit is given to the original creator. These licenses have been used by a global range of filmmakers, authors, musicians and companies and even broadcasters are getting into the game. And by offering footage unbound by high clearance costs, as well as new distribution opportunities, they can be a potential tool for documentary filmmakers and factual producers.
Eric Steuer, creative director at Creative Commons, believes that careful applications of a CC license can lead to wider audiences for works. ‘For certain kinds of films there’s a lot of value in saying to the public, ‘I made this thing and there are certain things I would be happy for you to do with it because it extends my reputation as a filmmaker,” he says.
He is also greatly encouraged by broadcasters such as Al Jazeera getting on board with Creative Commons. In January, Al Jazeera made selected broadcast-quality footage from the Gaza war available under the most permissive license, Attribution 3.0, which makes sense to Steuer. ‘They’re the only ones with access to that material, and they want that story told,’ he says. ‘If someone wants to take it and use it as part of a documentary on the Gaza war, or even wanted to put it on a rival news network and talk about it, they could do it under the license… Al Jazeera [is saying] they want credit for shooting the footage but they want their reporters’ stories to be told.’
Another broadcaster experimenting with open content is PBS. The PBS strand ‘NOVA’ ran a program called Car of the Future and used the Attribution Non-Commercial 3.0 Creative Commons license on selected footage posted on its Car of the Future website. The inaugural project last April was a labor-intensive effort that resulted in more than 230 clips being made available online, equaling seven hours of supplemental footage and expert interviews.
Susan Lewis, senior editor of the ‘NOVA’ website, says that the payoff was worth the trouble and added time and money needed to develop a new website and select, edit and compress the clips. ‘It was an added expense that we wouldn’t have had in a normal production but for this experiment we felt it was really worthwhile,’ Lewis says. ‘[The filmmakers, Joseph Seamans and Janet Driscoll Smith] were very excited about the idea that all of this extra wonderful material that usually gets archived and never sees the light of day would have a second life. We were very excited to be able to offer more than just an hour worth of footage for all the time that went into producing it.’
The production process was also affected by the open content aspect of the project. Lewis says that new release forms had to be created for materials releases, location releases and appearance releases that would give WGBH the rights to pass along the footage to third parties. ‘All of the experts were happy to sign the releases, thinking it was a public service that their interview material should be accessible to other people,’ she says. These new releases are now used in all of ‘NOVA”s productions for the material to be offered as open content in the future. However, Lewis says she doesn’t foresee another open content project anytime soon because of the extra cost and time logistics.
Coming upon these and other new legal considerations is something to consider when deciding to use a Creative Commons licensed clip or putting one on your own work. Michael Donaldson, entertainment lawyer and author of Clearance & Copyright (Silman James), stresses the importance of reading the fine print and using only the license that applies to your documentary’s goal. For the documentary filmmaker looking to use a CC licensed clip or photo in a commercial film, Donaldson advises that since four of the six Creative Commons licenses contain the words ‘non-commercial,’ ‘no derivatives’ or both, ‘you should stay away from it.’ Of the two remaining licenses, Attribution 3.0 and Attribution Share Alike 3.0, Donaldson recommends Attribution 3.0, ‘because it allows you to use the item you want as long as you identify the source and spell out that it’s being used pursuant to the Creative Commons license. It doesn’t require you to allow others to use your work in the same way [like in Attribution Share Alike 3.0].’
Donaldson also draws attention to this clause found in all CC licenses: ‘When you distribute or publicly perform the work, you may not impose any effective technological measures on the work that restrict the ability of a recipient of the work from you to exercise the rights granted to that recipient under the terms of the license.’ Donaldson believes this could be a problem in getting a DVD deal, since all DVDs come with digital-rights management systems, which distributors apply to discourage copying. The Digital Millennium Copyright Act makes it a crime to break that lock. ‘I have not heard of anybody going after someone for that, but having said that, you’ve got to be aware of it,’ he says.
But, according to Steuer, ‘The clause says that I, as a third party, cannot take your film, which has been CC-licensed to the public, and then make a copy of it (under the terms of the CC license), which I then restrict others’ rights to by using DRM. However, if you, as the filmmaker, have a different licensing deal with a film distributor (i.e. they’re not using it under the terms of a CC license, but a separate license that has granted them whatever rights they need), they can offer the film under a CC license and with DRM.’
Donaldson maintains that if the filmmaker wants to place a CC license on his/her own work, it really comes down to the individual.
‘CC licenses very much promote creativity and new work and that’s where I would like to see a shift in the copyright law and the law in general as supportive in new creation,’ he says.
Someone else who sees CC as promoting creativity is Brett Gaylor, director of RiP: A Remix Manifesto. His doc, produced by EyeSteel Film and the National Film Board of Canada, explores the intersection of copyright issues and the remix culture of the digital age, touching on copyright law, fair use and Creative Commons. RiP has a Creative Commons license on the film itself, and during the filming, people were submitting user-contributed content which became part of the film. The finished, but not final, version of the film is available on Gaylor’s website, www.opensourcecinema.org, to be remixed. RiP 1.1, the first remixed version of the film, has gone on to film festivals, stressing Gaylor’s view that ‘media is a promiscuous object; it likes to replicate itself throughout its environment.’
He says the film’s distributor, Austin-based B-Side Entertainment, has no problem with people chopping up and remixing RiP, but other distributors haven’t been as interested, which Gaylor attributes to a lack of understanding of the Creative Commons and Copyleft concepts.
CC’s Steuer says that the organization is still in the process of educating others about CC, and that it is in talks with a number of distributors. ‘They are beginning to understand the value of having films be available non-commercially to people,’ he says. It also helps when they can point to examples like PBS and Al Jazeera.
Broadcasters and filmmakers in the UK have also contributed greatly to the Copyleft discussion. Recently BBC Backstage, the broadcaster’s developer/designer network and RAD, a team within BBC Future Media and Technology, teamed up on the R&DTV pilot project. The monthly tech program consists of interviews from BBC developers, BBC project experts and external experts from around the world. Asset bundles are then offered up, containing all of the footage that is and isn’t used to make the programs, all available under CC’s Non-Commercial Attribution v2 license.
The BBC’s 2005 initiative, the Creative Archive project, was heavily inspired by Creative Commons. The project, led by Paul Gerhardt, ended in 2006 after temporarily releasing more than 500 clips for non-commercial use, but it was not without controversy, as the material was only available for distribution in the UK.
Gerhardt, currently heading the UK-based media consultancy Archives for Creativity, is still plugging away with the Creative Archive project, lobbying to ensure that the UK keeps sound and film archives available to the public.
‘Just as we expect to be able to use books to inspire us as a basis of creativity, [and that] we should be able to quote from them, copy items from them, refer to them and share them with others, we need exactly the same kind of flexibility when it comes to audio visual material,’ he says. ‘I think given the tools that we now have available through digital media, that’s completely inevitable.’