Thursday, January 27, 2005

More thoughts about Copyright and Film

I'm still at a loss of what to say about this article (PDF). [Well, I'm obviously not given the large amount of text there is.] The more I read, the more troubling this whole situation seems to me. Having been exposed to a little bit of this world through contract work with presenting organizations, and my time with orchestras--I understand that as an actor, playwright, director, scene designer, composer, your work is not only about what you do, but about managing the creative results you produce, your image, your reputation, and your ability to exploit these intellectual resources. We live in a free market system that rewards those that have the ingenuity, resources and talent to succeed.

But not totally...the United States derived something that Europe and other nations didn't have: a third sector...namely the non-profit sector. Sure, Europe had kings and royalty and patronage and all that; and private individuals paid artists to paint murals and create great works of music and drama. But something about the U.S. historically went for a middle way to all this. Not government aid for arts and culture, until the 1930's. And there is no royalty, and little direct aid to artists from government these days. But what we have is a country is an overabundance of associations and organizations dedicated to one cause or another. That's a good thing in my view. What we need is a more informed and engaged citizenry who contribute time, talent, and monetary resources to these groups.

So, most visual and performing performers and creators have their works exhibited, or presented by non-profit organizations. (For the most part, there is of course Broadway and corporate art galleries, and rock and country music, etc., but even there, there isn't a clear line of demarcation separating the non-profit arts industry from the "entertainment" industry). Non-profit performing arts centers present blues bands and popular country stars, and commercial theatres take chances (albeit rarely these days) on new plays and musicals. But as the Documentary Report noted, just because you're a non-profit doesn't mean you don't have to play by the rules of the industry. They have to buy the same insurance as other concert venues...indemnification, fire, etc., plus for broadcast...Errors and Omission insurance (never heard of that before).

You're lucky if you can get a Ford Foundation grant, or something from the John S. and James L. Knight Foundation, but if you can't, you still have to pay for stock footage, archival photos, and the intellectual property rights behind the cultural property, that we Americans think of increasingly as our heritage. [And which funding agency, really wants the bulk of their money going to lawyers to fight for clearance rights!]

So, as I learned on my first day in my first Arts Management class, what is a non-profit organization? Is it a organization that exists to go bankrupt? Can it make a profit? It suffers from a very poor label--better to go back to the older name, charities. (Although, sadly, that word doesn't always have a positive connotation). Non-profit organizations exist solely as legal entities because of a LOOP IN THE TAX CODE. That's why they're called 501-c-3 organizations, because that's the section that allows these entities to not pay income taxes, and to allow donors to deduct contributions to them. I was saying...even if an entity is performing this public good of exhibiting works for the public in an art museum, a movie theatre, or via television or the Internet, they still have to play according to the rules of the corporate entertainment industry. It seems that few people on the other side of the aisle, want to cut these groups any slack concerning their use of their material...which brings us back to Pete's question (which he asked in an e-mail to the ISDC group)..."All of that aside, my big beef here is the question of who, effectively, "owns history."

Pete also wrote earlier:

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.

No one, and everyone. But the real question is who owns the artifacts of history? They that do control the representation of history, of culture, of civilization even. Do they have a responsibility to society at large to make their materials available to researchers, historians, and other makers of creative content? Do they have a responsibility to even keep, and not sell, not destroy, not modify the original creative product, in the interest of a larger society? In the labor-intensive and cost-intensive area of film and television, it's easy (and justifiable) to argue that creators should be able to fully exploit their products as long as possible. But I'm reminded of the original section of the Constitution about copyright:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Article I, Section 8).

I know "limited times" seems quaint these days as we're approaching copyright perpetuity, but if cultural property never is transferred to the public domain, how can the majority of Americans play off it (legally) and create their own "remixes." And now, I'm coming to the preservation of cultural items, really...I promise.


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