From: Jeff Kreines (email suppressed)
Date: Sat Oct 15 2005 - 23:08:04 PDT
Posting this as fair use... this is an outrage.
October 16, 2005
The Hidden Cost of Documentaries
By NANCY RAMSEY
THE moment seemed innocuous enough.
Michael Vaccaro, a fourth grader, had just left P.S. 112 in Brooklyn
and was headed home with his mother. Two filmmakers were in front of
him, their camera capturing his every movement on video, when his
mother's cellphone rang.
"It was such an indicator of today's culture," said Amy Sewell, a
producer of "Mad Hot Ballroom," the documentary that follows New York
City children as they learn ballroom dancing and prepare for a
citywide contest. "Michael's mom had just asked him how school was,
her cellphone rings, she answers it, and the look on his face says,
'I don't get to tell my mom about my day.' "
In addition, the ringtone was "Gonna Fly Now," the theme from
"Rocky," and the neighborhood was Bensonhurst. "How perfect was
that?" Ms. Sewell said.
Perfect, but a problem. Had the ringtone been a common telephone
ring, the scene could have dropped into the final edit without a
hitch, the moment providing a quick bit of emotional texture to the
film. But EMI Music Publishing, which owns the rights to "Gonna Fly
Now," was asking the first-time producer for $10,000 to use those six
seconds.
Ms. Sewell considered relying on fair use, the aspect of copyright
law that allows the unlicensed use of material when the public
benefit significantly outweighs the costs or losses to the copyright
owner. But her lawyer advised against it. "I'm a real Norma Rae-type
personality," Ms. Sewell said, "but the lawyer said, 'Honestly, for
your first film, you don't have enough money to fight the music
industry.' " After four months of negotiating - "I begged and
begged," Ms. Sewell said - she ended up paying EMI $2,500. (Total
music clearance costs for "Mad Hot Ballroom," which featured songs of
Frank Sinatra and Peggy Lee, came to $170,000; total costs over all
were about $500,000.)
Today, anyone armed with a video camera and movie-editing software
can make a documentary. But can everyone afford to make it legally?
Clearance costs - licensing fees paid to copyright holders for
permission to use material like music, archival photographs and film
and news clips - can send expenses for filmmakers soaring into the
hundreds of thousands of dollars. Jonathan Caouette's "Tarnation,"
for instance - a portrait of a young man's relationship with his
mentally ill mother that Mr. Caouette edited at home, on a laptop
computer - was widely reported to have cost $218. In fact, after a
distributor picked up "Tarnation," improved the quality with post-
production editing and cleared music rights, the real cost came to
more than $460,000. Clearance expenses were about half the total.
Securing rights to music has long been a serious challenge. Ten years
ago, for instance, the filmmaker Steve James paid $5,000 to include
the song "Happy Birthday" in "Hoop Dreams," the 1994 documentary that
followed two Chicago basketball players through high school. One
memorable scene portrayed a young man's 18th birthday, as the family
sang "and his mom baked him a cake," Mr. James said. "It was an
important scene, there was some amazement that Arthur had made it to
18. Of course, we wanted that in."
Scrutiny by rights holders has increased, Mr. James said, as the
profit potential in documentaries has risen. "When I was starting
out, documentaries were under the umbrella of journalism," he said.
"Now, the more commercially successful documentaries have become and
the more they're in the public eye, the more they're perceived as
entertainment."
In another change, said Peter Jaszi, a law professor at American
University, "rights holders are slicing their bundle of rights in
finer and finer ways and selling them off in smaller and smaller
pieces." He asked: "Would music copyright owners 10 years ago have
predicted they'd be making a substantial part of their money over
ringtones on cellphones?" (It's now a reported $3 billion industry.)
As a result, he said, there's been "a tremendous upsurge in
intellectual property consciousness and anxiety on the part of all
kinds of users."
Mr. Jaszi is an author, with Patricia Aufderheide, the director of
American University's Center for Social Media, of a report titled
"Untold Stories: Creative Consequences of the Rights Clearance
Culture for Documentary Filmmakers," for which 45 filmmakers were
interviewed. Among the more striking examples he cites is "Eyes on
the Prize," the series on the civil rights movement. Henry Louis
Gates Jr., chairman of the department of African and African-American
studies at Harvard, has called "Eyes" "the most sophisticated and
most poignant documentary of African-American history ever made." But
it was last broadcast in 1993, and while schools or libraries may
have a copy, it is not legally available for sale or rent on DVD or
video.
"There's a whole generation out there who have not seen the program,"
said Sandy Forman, an entertainment lawyer heading a project to
reclear the rights so that "Eyes" can be rebroadcast and distributed
to the educational market. "When the rights were originally cleared,
they were acquired for different terms. Some were in perpetuity, some
were for 3 years, some for 7, some for 10." Once just one group of
rights expired - and there are 272 still photographs and 492 minutes
of scenes from more than 80 archives, plus the music - "we had to
pull the film from distribution."
In August, the project received $600,000 from the Ford Foundation and
$250,000 from the New York philanthropist Richard Gilder. PBS's
"American Experience" is considering a 2006 broadcast of "Eyes."
"It's not clear that anyone could even make 'Eyes on the Prize' today
because of rights clearances," Mr. Jaszi said. "What's really
important here is that documentary commitment to telling the truth is
being compromised by the need to accommodate perceived intellectual
and copyright constraints."
On occasion, storytelling takes a back seat to legal and financial
considerations. When Jon Else was completing his film "Sing Faster:
The Stagehands' Ring Cycle," a backstage look at an opera company
that won a Filmmakers Trophy at the Sundance Film Festival in 1999,
he wanted to use a scene in which the stagehands watched "The
Simpsons" as Wagner roared overhead.
"I felt it was a wonderful cultural moment to see two stagehands
playing checkers while the gods are singing about destiny and free
will and Marge and Homer are arguing on the television set," Mr. Else
said. "We got permission from Matt Groening's company," which
produces "The Simpsons," and then went to Fox.
"The first response was $10,000 for four seconds," Mr. Else said.
"When I explained this was for public television, they replied that
was their public television minimum. We eventually worked our way
down to $7,000, but it was at the end of production, we were
exhausted and out of money." It became more complicated. "Fox said,
Wait a minute, any chance you're going to sell this? It wasn't the
case of Fox being intractable jerks; it's just this odd gray area.
"At the last second, I replaced it with a shot of a film that I own,"
he said, adding, "I'll burn in journalistic hell for that."
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For info on FrameWorks, contact Pip Chodorov at <email suppressed>.