The Hidden Cost Of Documentaries

[Michael Fitzgerald]

This goes along with the discussion of why the big conglomerates want to own everything (and release nothing) that was discussed here:

http://www.organissimo.org/forum/index.php...6&hl=tim+brooks

I have been told by some filmmakers that clearance costs are absolutely exorbitant, but also that if the right person is asked, the fees can be waived - for example, Johnny Carson did this for some footage of Milt Hinton. But the problem is that the "good guys" like that are dying off and everything is being held hostage by corporations and their lawyers. Photographs, film, recordings, you name it.

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http://www.nytimes.com/2005/10/16/movies/16rams.html

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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Mike

[JSngry]

I've been an adamant supporter of copyright and IP-protection laws, but definitely not for crap like this!

Perhaps there needs to be a "sliding scale" factored in that considers (generously, to be sure) cumulative earnings of a "property" as well as merely how long it has existed, as well as whether or not a usage of the product is "direct" or "indirect". Surely the sound of a cellphone ringtone in a verite documentary cannot be considered anything other than indirect usage. Perhaps "intentional" or "unintentional" are better terms.

The needs/rights/etc of the owner(s) of a property such as Nessa's AEC box or some Blue Mitchell tune after 50 years are obviously not the same as those of the owners "Gonna Fly Now" after 25. At some point, both financially and chronologically, ownership rights can shift from providing legitmate protection to being used as tools of extortion. But what that point is, and when it is reached cannot be served by a "one size fits all" rule.

There's an old country saying - "Pigs get fat, hogs get slaughtered."

Word.

[Chuck Nessa]

Sometimes the documentary makes are the "big dogs". I received a call from Ken Burns production office asking for permission to use something in the jazz series they did. I was simply told if I didn't sign "for free" they'd just cut it out.

[AllenLowe]

with that ringing phone, I would have just overdubbed a regular ring - I know they wanted that song, but nobody would have cared -

Edited October 16, 2005 by AllenLowe

[Jim Alfredson]

with that ringing phone, I would have just overdubbed a regular ring - I know they wanted that song, but nobody would have cared -

←

That's exactly what I would've done. It seems the important part of that scene is the child's reaction, not the particular tune playing on the phone.

[ejp626]

with that ringing phone, I would have just overdubbed a regular ring - I know they wanted that song, but nobody would have cared -

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Depends on the nature of the documentary and who commissioned it. Some film makers have rules as strict as the Dogma 95 crowd. Overdubbing something might be way too much. While documentaries inevitably frame reality in different ways and come up with vastly different accounts of what happened, they usually don't allow for the sheer falsification of reality (i.e. replacing the ring tone).

In any case, I think the current IP regime is completely out of hand and may collapse under its own weight. Most of the great works of literature have blatant lifting of other works, and most jazz is based around common chord changes and lifting riffs from other places. This activity isn't under scrunity yet, but it won't be much longer before lawyers try to get in on the action.

[Jim Alfredson]

Well, when it comes to music, you cannot copyright chords or chord changes, you can only copyright melodies and lyrics. That said, when a jazz musician (or other musician for that matter) "quotes" a tune in his/her solo, doesn't that constitute copyright infringement?

[ejp626]

All I'm saying is that I bet there are a bunch of lawyers with IP on the brain who will start trying to make life miserable for average musicians (and authors and frankly all creative people), and it will get worse every decade until we finally get a populist wave that reforms the IP laws in a way that is sensible. I'm not holding my breath. I hate the way the law is currently administered, and it is somewhere in my top 25 things that make Western democracies suck (the US even moreso than the EU).

[Michael Fitzgerald]

Quotes in solos - absolutely this is the next step if it ever gets onto someone's radar screen. There was an NPR show on sampling, etc. that mentioned the end of 1974's "The Lamb Lies Down On Broadway" by Genesis (two lines from "On Broadway") that would probably never been able to have been done 30 years later.

Mike

[Jim Alfredson]

That is a good point and goes hand in hand with the discussions we've had on here about sampling. To me, sampling is no different than quoting melodies or the art of collage in the visual arts. To regulate it the way that they have is completely idiotic.

[Jim Alfredson]

Then again, if I want to make some quick and dirty money, I should write a tune with every bebop cliche in the book as the melody and then start suing modern horn players left and right for copyright infringement. Some stupid judge would probably rule in my favor.

[Michael Fitzgerald]

I'm gonna write a tune "If Charlie Parker Were a Copyright Lawyer, There'd Be a Lot of Destitute Gunslingers"

Mike

[7/4]

Ah well...it's always about money.

Better to do something original....

[7/4]

Ah well...it's always about money.       

Better to do something original....

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but, then sometimes these costs come into play. I have a project that's been offered to me where I wonder if it's worth the effort. WTF does this money come from???

[Michael Fitzgerald]

Product placement! Everything we see is planned - nothing is accidental. The onscreen can of Coke pays for the rights to that TV show that's playing in the background. If that fails, try merchandising (action figures and happy meals).

Only partly kidding.

Mike

[Soul Stream]

I've been an adamant supporter of copyright and IP-protection laws, but definitely not for crap like this!

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You know, I'm not real big on all the copyright protection stuff for this very reason. The big guys line their pockets and the musician gets the "trickle-down" theory of economics. Who owns all the rights to all this music we so dearly love? Well, I don't see any Jazz musicians on the Forbes list.... Sure, some probably make some good jack...like Horace Silver,ect...people who KNEW what was up. I doubt many others knew up from down...sign here, ect. Corporations fighting over musician's corpses it seems to me.

[JSngry]

What I'm for is educating our people on how to reap the benefits of the system, not taking away the chance for them to do so. Donald Byrd schooled Herbie Hancock on the wisdom of owning the publishing to your own material, and Herbie's done all right by doing so.

Laws, like religions, are only as fair/ethical/whatever as the people who practice them. GIGO, so to speak.

[Kevin Bresnahan]

One of my favorite television shows when I was a young man was "WKRP In Cincinati". Almost every show from that time has made the transition to DVD. Not "WKRP". It likely never will.

In case you don't remember, it was a show about a radio station and nearly every episode had snippets of classic rock tunes. The owners can't get clearance for any of it. In fact, I hear that they have had to substitute different music for re-runs on Nick At Night, many times ruining the scene.

Kevin

[Jim Alfredson]

See, that's just silly. If the show or album or whatever was made BEFORE such laws came into existence, it should be exempt from those laws. To use the Genesis example above, is Atlantic not going to be able to re-issue "The Lamb Lies Down On Broadway" anymore due to the quote in the first song without paying for it?

[Michael Fitzgerald]

Any old radio station can pay their annual fees and broadcast ANY music that's out there - but a TV show *about* a radio station can't present snippets in a similar fashion?

And what exactly do you replace the recording of Pink Floyd's "Pigs" with, anyway?

Mike

[Kevin Bresnahan]

Any old radio station can pay their annual fees and broadcast ANY music that's out there - but a TV show *about* a radio station can't present snippets in a similar fashion?

And what exactly do you replace the recording of Pink Floyd's "Pigs" with, anyway?

Mike

←

Exactly! The original show used the music to get a laugh. From what I've read (but not seen), the music they've substituted did not fit the scene at all. Of course, the people doing these substitutions are banking on John Q. Public being unable to remember exactly what music was playing during these scenes.

[Michael Fitzgerald]

Here's the more detailed essay on the subject that is referenced in the article (many of the same examples):

http://www.centerforsocialmedia.org/rock/finalreport.htm

Mike

Edited October 17, 2005 by Michael Fitzgerald

[AllenLowe]

"you cannot copyright chords or chord changes" - I tend to agree, but apparently Johnny Green was able to make the record company pay when Coleman Hawkins released a tune, Rainbow Mist, I think, in which he just plays over the changes of Body and Soul -

[ghost of miles]

How do these laws apply to radio documentaries? I'm preparing a series on Indiana jazz that we will be distributing for free to other Indiana public-radio stations... do we have to get clearance for the music we'll use in that?

When I did the Ellington JUMP FOR JOY special, I had to get clearance from an agency in Indianapolis that claims to "own" Ellington's voice. Even though the interview segments came from the Smithsonian, I was still advised to seek permission from this agency, as punitive legal costs would be devastating if by some chance they had a case. If I were trying to sell the show, I suppose that would be one thing... but the broadcast was very much educational in intent (we aired it as part of our Black History Month programming). The agency did grant permission for me to use Duke's voice for free, but it was a real headache... it was a last-minute thing, and we briefly thought that we might have to yank the Ellington speaking segments and replace them with more narration or some such.

[Michael Fitzgerald]

I found this particularly chilling:

“Most favored nation” clauses in license agreements, meaning that all rights holders get the highest price negotiated by any, are often demanded by rights holders afraid that another rights holder will get a better deal. They introduce more ambiguity and tension into the rights process. As Kenn Rabin notes, “not only do you not know where you stand, the music you pick really gets determined by who’s going to set a quote that knocks everybody else out of the water. And you can’t even know what your music budget is until you get all of your quotes in.” Jeffrey Tuchman analogizes, “It’s like going to go the grocery store and pinching your pennies and using your coupons and then the last thing you buy is a steak for $20 and then every soda and bag of M&Ms you bought suddenly costs $20.”

I cannot see why this shouldn't be run like publishing rights for recording tunes - compulsory licensing with a set rate that is the same whether it's a tune by Lennon & McCartney or by Joe Schmoe.

'Pull a number out of the air' is what it appears to be.

Mike