Executive Summary
This study explores the implications of the rights clearance process
on documentary filmmaking, and makes recommendations to lower costs,
reduce frustration, and promote creativity. It focuses on the creative
experience of independent, professional documentary filmmakers.
FINDINGS
Rights clearance costs are high, and have escalated dramatically in
the last two decades.
Gatekeepers, such as distributors and insurers, enforce rigid and
high-bar rights clearance expectations
The rights clearance process is arduous and frustrating, especially
around movies and music.
Rights clearance problems force filmmakers to make changes that
adversely affect—and limit the public’s access to--their work, and the
result is significant change in documentary practice.
Filmmakers, while sometimes seeing themselves as hostages of the
“clearance culture,” also are creators of it.
Filmmakers nonetheless exercise fair use, and imagine a more rational
rights environment.
RECOMMENDATIONS
- Make the most of fair use:
- Develop and disseminate models of “best practices” ;
-
Establish one or more “legal resource centers” to support
filmmakers.
- Facilitate the clearance process:
-
Establish a non-profit rights clearinghouse;
- Work for legislation on orphan works.
- Build greater awareness of filmmakers’ use rights:
-
Facilitate filmmaker access to sound pre-production legal advice;
-
Develop learning materials -to provide a balanced general account of
intellectual property, for filmmakers and film students;
- Educate gatekeepers about creators’ use rights.
Concept of Study
This study explores the implications of the current terms of rights
acquisition on the creative process of documentary filmmaking, and
makes recommendations to lower costs, reduce frustration, and promote
creativity. It focuses on the creative experience of independent
documentary filmmakers who work primarily within a broadcast
environment (sometimes with a theatrical “window”).
Independent documentary filmmakers were selected because their work
regularly requires them to interact with a wide variety of rights
holders, from archives for photographs and stock footage to performers
to other filmmakers. This is especially clear when it is a historical
documentary or one that comments on commercial popular culture, but it
is an issue for most documentary filmmakers, no matter what the subject
matter. When a trademark appears on a baseball cap, or a subject
happens to be watching television, or a radio in the background plays a
popular song, or a subject sings “Happy Birthday,” rights clearance
becomes a professional and creative challenge.
Independent documentary filmmakers are particularly appropriate
subjects because they typically develop projects with autonomy,
generating new topics and approaches, and sell or lease them to
broadcasters or cablecasters to get them seen. They are responsible for
doing rights clearance. Generally, however, they do not have much
choice about what to clear. Their insurers, television programmers, and
theatrical distributors usually set rigid and high-bar requirements for
rights clearance. Without a detailed record of rights clearance, for
example, they cannot get errors and omissions insurance, without which
a broadcaster or cablecaster will not show the work. Programmers,
insurers and distributors are primarily concerned about legal risk to
lawsuit, however frivolous, and have a much lower investment than the
filmmaker in the creative effect on the work.
