Copyright Issues for Documentaries

An interesting discussion on the Indiana Students for the Digital Commons list this morning prompted this blog entry. We were talking about archival video footage used in documentaries (discussion below). Pete Welsch showed me an interesting study, called Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmakers by Patricia Auferheide and Peter Jaszi (Center for Social Media, 2004), done on the difficulties that documentary filmmakers face in creating their works, especially since they face the issues of copyright and trademark law, for the inclusion of various materials in their works. Then there is the documentary itself, and its future. How this relates to my blog via preservation, is that the issue of rights very much affects the preservation of an item and its access whether in the analog or digital worlds.

It's a very interesting report, and reminds me of the many issues that faced my former employer, WETA every day. Also, a friend of mine, involved with film festivals face these issues regularly. The authors are from American University, where I attended graduate school for arts management, but didn't finish.

Pete started the discussion by asking for input into an event the ISDC was proposing to hold:

Here's something that I thought you might be interested in and that might be a good event for the ISDC to host for our "coming out" as an ACM committee.

The p2p/copyright group Downhill Battle (the Grey Tuesday folks) are making an effort to get the civil rights documentary Eyes on the Prize screened around the country on February 8th. The film is hard to get a hold of now because the copyright holders for several of the pieces of footage used in the film have placed the premium on further distributions of the work at prices that the producers can't afford. Seems like an appropriate melding of tech, copyright, and civil rights issues to me. Here's the link.

[...] Think we might be able to arrange for a classroom at SLIS? Any apprehension about the deal?

I'm always apprehensive about anything that might deal with copyright, but maybe that's because I'm a wuss. I don't think that's all it. Another student wrote back:

I don't know that I entirely agree with Downhill Battle's assertion that "The First Amendment and the doctrine of "fair use" can clearly be extended to include the right to distribute a film of such important historical significance as Eyes, when such a film is otherwise unavailable."

However, if you couch the screening in terms of educating the public about the screwy-ness of copyright law, everything should be okey-dokey. (NOTE: In case you were wondering, "screwy-ness" and "okey-dokey" are proper legal terms.)

If you couldn't get a room at SLIS, the Neal-Marshall Black Culture Center (http://www.indiana.edu/~nmbcc/) has a variety of rooms available for reservation.

Ah, here we are talking about very different things. The stock footage, the documentary, the (re)distribution rights, and the performance rights.

Redistribution and performance rights are separate things. Don't know or understand the case law of this issue. Performance rights are dealt with separately in the U.S. Code 17 (I'll look up citations later). The factors for fair use don't necessarily apply to the ability to broadcast or perform a work. It's ok for someone in a library to show a copy of a video on a screen intended for 1-2 people. Quite a different thing for an instructor to show it in class (covered though in a different area, TEACH Act I think), and another thing for a library to arrange a showing in a community room that's accessible to the public. That's where it gets sticky.

Anyhow, Pete wrote back:

I'm not sure that I agree with that argument, either, in terms of...you know... THE LAW. That said, I do think that this film is an excellent example of the way that copyright can take a history, or the rurable record of public events, effectively out of the public's hands. In this sense, I think that the film and the efforts around it do exactly what you mention in your second point, which is demonstrate the skrewy-ness of the current copyright regime.

I'm not sure that I used your legalese correctly, hopefully you got the idea. :)

I agree with Pete in this instance. I just don't know what we can do, as non-lawyers or non copyright clearance experts to effectively combat this. But it definitely is an important mission.

On a different list, I found another discussion that's relevant to this conversation, namely "orphaned works," whose authorship or ownership cannot be readily determined or rights have not been assigned under the current system. (BTW: There was no system of federal protection of copyright in sound recordings until 1971. Before that, it was state-by-state, which is murky to say the least. Of course, now it's retroactive...mainly back to 1923, with some exceptions of course. And then there's international law, and moral rights, and the duration and nature of copyright and trademark is even MORE complicated. Ugh.

Here's the link to the article on orphan works and what the U.S. Copyright Office is trying to do to cover this gap.

Pete didn't find this particularly relevant, and posted some relevant articles from Wired, which I haven't had a chance to look at yet:

To be clear, I don't think that this falls into the catagory of an "orphaned" work in that ownership of the applicable rights is clear...the issue here is that the issue of renewing the licenses enjoyed X number of years ago by the filmmakers has effectively priced the documentary out of the marker... as a result, there are no plans to release the film, effectively limiting its availability to the lifetime of the current, aging generation of videotapes. Here's a Wired News article that breaks the history of the issue down nicely... apparently, short-term licensing of archival material is a common thing among documentary filmmakers, which means that their work eventually becomes "illegal," often because they can't afford to renew the license down the road.

Wired Article No. 1

And here's another article that came out this morning, wherein the lawyer for the production company that produced Eyes on the Prize says that redistributing the film is illegal. The producer died a few years ago and the company is now owned by his daughters.

Wired Article No. 2

Given these issues, is a showing something that we would be interested
in doing?

Pete also wrote:

I should ammend my comments to say that the production company behind eyes on the Prize is looking in to re-licensing the rights necessary... they got a grant from the Ford Foundation to research options and project that they'll need $500,000 to get the licenses back.

All of that aside, my big beef here is the question of who, effectively, "owns history."

I'd say it'd be an interesting case of investigating more about, and doing a side presentation of why this issue is so important, and what the Creative Commons can do to alleviate these problems in the future.

This entry is getting further afield than I wanted, so in my next entry, I'll show its relevance to the importance of preserving master recordings, be they audio or audiovisual, and the need for easier access to these source recordings by individuals and nonprofit organizations.

At break from my L651 class, I wrote back:

No, I understand that too, I was just bringing the article to everyone's attention. This thing often happens in the case of sound recordings, where a recording of an obscure composer was released one year, and goes out of print within months or a year or two. And since it didn't sell well, it doesn't get pressed until someone, a historic event, or a performance by a major symphony orchestra creates a minor groundswell of attention and enthusiasm for that composer or composition.

It's even harder in the area of motion pictures, which carry many more series of rights involved/assigned...the music, photography, and art works therein (art law being an entire thing altogether), the scenery, and anything created for that film;
anything captured by cameras, the music written for the film, songs used in the film
(which are covered for the composer, performer, plus the mechanical and synchronization rights), etc. Ugh...But I do think in a sense it's easier to get rights for documentaries than for feature films, because the inherent content is more "newsy" and less "artistically" created. These are events that really happened and the capture of them and subsequent publication should be less proprietary than a work of artistic or intellectual creation. In other words, it's more a matter of public record, esp. if those captured on film are figures of historical, political, or cultural significance. I think there's something built into US Code about this, but I'll let someone with real legal knowledge (re: the lawyer of our group) figure that out.

I followed up with:

Part of what this relates to also is the flow of capital within the nonprofit structure, which comes in ebbs and flows...federal aid and grants from individuals and grantmaking foundations.

At that point, I ran into Pete and he gave me that article which I've been skimming ever since. Soon as I get another half-hour or so, I'll write more; but for now, I have to go learn more about digital recording and transferring at the Archives. Sorry this is so badly formatted.