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.