Is copyright killing our culture?

The Globe and Mail has a good article on how tightening copyright laws are impacting documentary filmmakers by pricing film clips and archival footage out of reach. It starts off by mentioning how a documentary on Martin Luther King, Jr. titled Eyes on the Prize produced in the 1980’s and “widely considered the most important encapsulation of the American civil-rights movement on video” can’t be broadcast or sold any longer because the filmmakers could only afford to license the film clips used for five years and they can’t afford the $250,000 to $500,000 it would cost to negotiate new licenses. As a result this landmark film will slowly disappear as old VHS copies used by schools and libraries fail.

“Securing copyright clearances isn’t just a problem for the makers of Eyes on the Prize. It’s a constant, often insurmountable hurdle for documentary filmmakers and even for writers wanting to reproduce, say, copyrighted pictures or song lyrics in their work.

But it’s particularly difficult for any documentary-makers relying on old news footage, snippets of Hollywood movies or popular music—the very essence of contemporary culture—to tell their stories. Each minute of copyrighted film can cost thousands of dollars. Each still photo, which might appear in a documentary for mere seconds, can run into the hundreds of dollars. And costs have been rising steeply, as film archives, stock photo houses and music publishers realize they are sitting on a treasure trove, Else and other filmmakers say.

The owners of the libraries, which are now increasingly under corporate consolidation, see this as a ready source of income,” Else says. “It has turned our history into a commodity. They might as well be selling underwear or gasoline.”

The article goes on to mention that this is in part due to the growing popularity of documentaries with the public:

The explosion of digital channels, the DVD market and even the use of documentary footage on the Internet have created a new level of success for documentaries, explains veteran National Film Board producer Gerry Flahive. But “suddenly for people who have companies that own stock-footage collections, the material is more valuable. So it has become more expensive.”

Before the digital and documentary explosion, a clip of President Nixon speaking, for instance, usually could be licensed “in perpetuity,” meaning that the film could continue to use the footage indefinitely. Now the incentive is for copyright owners to grant only limited permission. “Increasingly, it’s harder and harder to get ‘in perpetuity,’ because rights-holders realize that somebody will have to come back in five years or 10 years and pay more money,” Flahive says.

Some are calling this the new “clearance culture,” in which access to copyrights affects the creation of new art as much as, if not more than, actual artistic and journalistic decisions. It also means that access to copyrighted footage is only open to those filmmakers with the deepest pockets (or many lawyers on their side).

But at a time when documentaries are probing the U.S. war on terrorism or globalization, for instance, in ways that are more in-depth than typical mainstream news media, the question of whether copyright restrictions are creating a blinkered view of the world is a serious one.

“Why do you think the History Channel is what it is? Why do you think it’s all World War II documentaries? It’s because it’s public-domain footage. So the history we’re seeing is being skewed towards what’s fallen into public domain,” says filmmaker Robert Stone in the American University study.

The article also mentions that one of the loopholes often used is the “Fair Use” rule, but that only applies to documentaries that are critiquing the footage being used and the defense only works if you can afford the lawyers to mount it. What the article fails to mention is that the Fair Use rule may be made moot by the DMCA in the long run anyway. As the move away from analog media to digital media for archival purposes continues to grow documentary filmmakers may find themselves running afoul of laws intended to stem piracy. Under the DMCA it is illegal to circumvent the copy protection scheme used on DVDs which the filmmaker would need to do in order to use footage only available on that media in a documentary. As a result the copyright owners can stop the usage of their footage in a documentary regardless of the applicability of Fair Use because they can sue the filmmaker for violating the DMCA.

Under current copyright rules it can take over a century before a lot of history moves into the public domain and if Disney has its way the next time they’re about to lose their copyright on Mickey Mouse then you can be sure it could get even worse as time goes on.

9 thoughts on “Is copyright killing our culture?

  1. I saw “Eyes on the Prize” when I was a kid.  It had a huge impact on the way that I viewed race relations in the US.  It’s a shame that copyright issues are going to result in people not being able to see it.

    a shame.

  2. Hhhhhm. So there’s rarely any Vietnam (for example) documentaries on History Channel?

    (As an European, I wouldn’t know)

    Mmmmmh, wonder if thats intentional…

    No, I’d just be advocating conspiracy theories. But it is a nice side effect for many who still consider Vietnam a justified war, I guess.

    As for the whole issue – I can only hope that the EU does not go along with the attempts at extending copyright all the time…

    50 years is plenty in my eyes. Copyrights here, patents there… It DOES seem like a new kind of avarice, sometimes, doesn’t it?

    Gotta discuss this angle with my best friend sometime, who actually is a copyright lawyer (!).

  3. Although I agree that it is shameful that a documentary such as Eyes on the Prize (and perhaps others of its ilk) should be subject to such harsh action on the part of the copyright holders and their greedy lawyers, I have to look at it from the root cause of the problem.  As I see it, near sighted OR corrupt producers or both, as a rule have made this bed they now sleep in.  This film was made in an era when the term “in perpetuity

  4. There’s a good book on this very subject, called “Free Culture: How Big Media Uses Technology and The Law To Lock Down Culture and Control Creativity” by Lawrence Lessig (Penguin Press 2004).  There’s also an accompanying website: 

    http://free-culture.cc/

    —Joe Thornburg

  5. As a photographer that relies on licensing usage of my work to survive, I have mixed emotions on this subject. I see large corporations taking advantage of copyright laws and putting a bad taste in the mouth of the general public. The problem is that when you say that you want copyright laws to be weaker, you’re forgetting about the millions of small guys that survive on the same rules. It’s quite a dilemma. As a content creator, I always feel a little miffed when people tell me that the work I created should be free for them to use as they please after a certain amount of time and that my great, great grandchildren shouldn’t be able to benefit from the work I pass down to them. I blame everything on Getty. grin

  6. I’ve explained before that I’ve been on both sides of this issue and, in fact, still am. This entire website is effectively one giant copyrightable effort on my part if I wished to make it so, but you’ll note that I’ve established a Creative Commons license for it. So you’re incorrect to say that I’m “forgetting about the millions of small guys” because I have been and am one of the small guys and I’m very aware of the issues from that point of view.

    It’s not an issue of wanting to see the copyright laws be weakened as much as I’d like to see the original intent behind them restored. When the founding fathers first wrote down the rules with regards to copyright they recognized not only the rights of the content creators to be rewarded for their efforts for a reasonable amount of time, but also the importance of creative works eventually moving into the public domain where they could be expanded and taken into new directions. They struck a pretty good balance between the interests of the creators and the interests of the public, but since then the laws have shifted such that the balance is gone and favors not the creators or the public, but those who hold the copyrights. More often than not creators end up handing over the copyrights in order to gain access to the media industry which has gone to great lengths to ensure that they are able to profit from those copyrights for as long as it can regardless of what would be best for the creators or the public.

    Copyright as it stands today needs a serious overhaul and reform to restore the balance and bring back the original intent.

  7. Sorry Les, I didn’t mean “You” personally. I didn’t make that clear enough. Well, in a way I did, but you make a great point that I also didn’t stress enough. I feel that as a creator, I’m being bundled into the copyright owners bunch as a whole by the anti-copyright movement. As you mentioned we are two different entities altogether. This is what I mean by the Getty statement, they are one of the biggest evils in my mind.

    My worries stem from being lumped together, and I get a little nervous when people start talking about copyright reform. It’s hard enough educating clients about licensing, but gets even harder when they arm themselves with generalizations about the evils of copyright that they read on the net.

  8. From what I understand (IANAL), fair use is a legal defense; first you commit copyright infringement, then you shout “fair use”. Whether that will protect you in court is up to the judge.

    Judge Richard Posner argues at http://www.lessig.org/blog/archives/002115.shtml and elsewhere that when deciding if something is fair use, one can and sometimes must look beyond the “four factors” (http://www.cetus.org/fair5.html).

    I believe that a documentary using either accidental footage or footage to illustrate should be able to claim “fair use” succesfully. An example of the former would be: a TV in the background showing a Simpsons cartoon—the documentary maker is trying to show how bored his subjects are. An example of the latter: showing footage of race riots while discussing race riots.

    The problem with fair use is not its scope, but its cost. Since it is a legal defense, you need to go to court first. Last time I checked, filming documentaries is not the path to being able to pay tremendous legal fees.

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