Register Monday | June 18 | 2018

Copyfight

Documentary filmmaking is being crippled by the rising costs of copyrighted footage. Christopher Frey tells us how filmakers are struggling to adapt.

As a filmmaker who specializes in deconstructing our cultural history, Ron Mann relies on other people’s footage to tell his stories: stock images of clean-cut youth of the fifties learning to dance the twist; archival footage of President Eisenhower bemoaning the decline of American morals; hysteria-inducing “Just Say No” anti-drug ads. Images that resonate with audiences establish a film quickly and efficiently. Often there is no better way, and sometimes no other way, to tell a story.

But while a picture may be worth a thousand words, these days images fetch a much higher market price. Creators have long been required to license the use of every archival clip, stock image or music excerpt in their work, but the meteoric rise in licensing costs over the past two decades has cast a censorious chill over the documentary industry. A six-second sample of footage or a pop song might cost $10,000. That is if you can get it at all; some owners may simply refuse permission because they don’t want to be associated with a film’s content.

According to the Documentary Organisation of Canada (DOC), clearance fees now account for 27 percent of the average documentary’s budget, and are consuming a greater part of the filmmaking process. Mann estimates that clearance fees for use of copyrighted third-party material cost him about $300,000 per film. Twenty years ago, he says, “it cost me a tenth of that.”

It’s not just filmmakers like Mann, who largely construct their collage movies from found materials, who are affected. A snatch of song, the flash of a magazine cover or a barely recognizable television program in the background of a scene can all incur exorbitant costs. The freest act of any fledgling director—hitting the street with a camera to capture quotidian, unscripted reality—can now be fraught with legal and commercial tension.

“You walk through any urban landscape, like Yonge Street in Toronto, and the whole environment is littered with media,” says Montreal-based filmmaker Brett Gaylor, director of the upcoming documentary Basement Tapes about “open source” culture. “Video screens, corporate logos, advertisements, music. The ubiquity of it all is ridiculous. I could have a Christina Aguilera song in my head without ever willingly paying attention. But if I want to make a comment on this world around me, I need to be able to use that material.”

As archives and cultural detritus are increasingly commodified, documentaries on critical issues may become out of reach for independent filmmakers. Mann calls it “economic censorship.” Gaylor agrees: “Only people that work within the corporate system will be able to play the game.”

This is, in fact, already happening. Each year, films are removed from circulation because the expense of re-licensing materials contained within them is too onerous. Last year the National Film Board withdrew six films from circulation, including Donald Brittain’s landmark The Champions, which documents battles between Pierre Trudeau and René Lévesque that defined this country’s political landscape. More infamously, the distribution of Eyes On the Prize, a fourteen-part documentary series on the US Civil Rights Movement, was temporarily ceased when the licences to many of its archival clips expired. This included footage from the 1963 march on Washington, during which Martin Luther King, Jr. delivered his “I Have a Dream” speech. Thanks to a private donor who ponied up $250,000 to clear the material anew, Eyes On the Prize is once again available to educators and public broadcasters. American filmmakers who want to use copyrighted material have recourse to invoke “fair use”—a legal exemption that entitles creators to quote materials without permission for the purposes of news reporting, commentary or scholarship. It’s the principle that enabled Robert Greenwald to make his recent documentary Outfoxed, a scathing media critique of Fox News’ ideological bias.

In Greenwald’s case, however, he had the support of legal scholar Lawrence Lessig—a prominent advocate of fair use—and a major law firm prepared to back him in court. Most filmmakers don’t have the resources to defend themselves. For the anti-sweatshop documentary Behind the Labels, director Tia Lessin initially juxtaposed images from Gap commercials with hidden-camera footage of Saipan sweatshops where the company’s clothing is made. While she believed she had a claim under fair use, lawyers for the film’s broadcaster insisted she remove the Gap ads to avoid any potential liabilities.

Many films, in fact, could make strong legal cases for their protection under fair use, but their broadcasters and distributors (or rather, their lawyers and insurers) are unwilling to test these claims in court. In the absence of any standard industry rates, the licensors demand as much as they can.

Don Letts found this out when putting together his music documentary Punk:Attitude. “Why do you think the clips in the movie are so short? You’re paying somebody a shitload of money—we’re talking $15,000 for a twenty-second clip. And the thing is, in my case, it’s not the artist in the clip who is getting the money, it’s some TV station that didn’t know they had it until I wanted it.”

To compound the situation, large photographic stock houses such as Corbis and Getty Images have been buying up small archives around the world, further concentrating ownership. Rights holders are also now refusing to grant filmmakers permanent licenses: Why sell something in perpetuity, when you can sell it again in five years?

Faced with these obstacles, filmmakers have found creative solutions. For Tales of the Rat Fink, Ron Mann’s latest film about custom-car guru Ed “Big Daddy” Roth, the director manipulated still photographs and animated them to look like film. “It’s like $400 to buy out a photo,” says Mann, “whereas once I paid $10,000 to Steve Allen for a six-second clip. It depends how much you need it. That’s one reason why I’m moving more towards animation.”

The Canadian government is currently working on amendments to the Copyright Act in response to the threat of cultural piracy in the digital age. But filmmakers are concerned that the changes will worsen the climate they have to work in. Canadian exemptions for fair use are already more limited than in the US. News reporting, for example, is entitled to clear access to copyrighted materials; documentaries and projects that quote for the purposes of parody or satire are not. In response, the Documentary Organization of Canada issued a white paper in December asking to expand the exemptions to include, among others, incidental use.

“The freedom of documentary filmmakers to engage public space,” (as the DOC white paper states) is at the heart of this issue. Clarifying the rules of licensing and establishing reasonable, industry-standard rates would seem to be in all parties’ interest. Making a distinction between using a sample in a documentary versus a commercial wouldn’t hurt either.

Exorbitant sums for fifteen-second clips may, however, be symptoms of a dying business model. “The younger generation turns less and less to traditional media,” says DOC director Tina Hahn. “As a media society we’re trying to figure out how to pay for what the twenty-year-olds are now accustomed to getting and using for free.” YouTube, the wildly popular Internet site, is largely based on the principle of copyright infringement. Yet, even with several high-profile corporate lawsuits pending last year, it sold nonetheless for US $1.65 billion to Google. The very same film and music companies that had been suing YouTube for copyright infringement decided to get in on the ownership deal with Google rather than battling its new owners in court. The lesson for corporate giants: If the price is right, join ’em. But for independent artists working alone, it’s getting harder to “speak truth to power”—especially when you have to pay for the privilege.