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Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers

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Posted on December 10, 2004

Courtesy of the Center for Social Media
By Pat Aufderheide and Peter Jaszi

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.

Methodology

Using contacts developed through business networks and via festival catalogs, student and faculty interviewers in the School of Communication and Washington College of Law at American University interviewed 45 documentary filmmakers. Researchers selected the people in charge of making creative decisions, primarily directors but also including some editors and producers. (Some filmmakers play multiple roles.) Using a questionnaire as a guide to discussion (text available on website), the interviewers explored three areas:

Problems in rights acquisition of completed projects; Rights problems that resulted in stalled or incomplete projects; Rights permissions and experience with unauthorized or inappropriate use of her or his own work.

Filmmaker interviews were summarized by researchers and reviewed by the filmmakers, and then analyzed by the co-principal investigators, Patricia Aufderheide and Peter Jaszi.