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Could filmmakers reform the copyright system?

Orphaned art and endangered docs 

Could filmmakers reform the copyright system?

Eyes on the Prize, the landmark documentary series chronicling the Civil Rights Movement, is locked in copyright limbo. Since 1995, its producers have been unable to afford the estimated half million dollars' worth of licensing renewals for archival footage. PBS lost the right to air it in 1993. And you can forget about renting the DVD--there is none, because that would require a re-licensing agreement for all the material. At Full Frame's conference on copyright issues last year, filmmaker Orlando Bagwell explained why his chronicle of American history has been collecting dust. His story exemplifies the prohibitively complex, expensive and nonsensical system in which filmmakers must work, and the impact of this system on documentary film in particular, a genre that's becoming more and more essential to our historical record.

For the third consecutive year, Full Frame organizers will host an in-depth discussion of the copyright hurdles faced by documentary filmmakers. Friday morning's panel at the Durham Arts Council brings together Gigi Sohn, president of the Washington-based advocacy group Public Knowledge, Jonathan Taplin of the University of Southern California, Annenberg, and Jennifer Urban of USC's Intellectual Property Clinic. The festival's first panel in 2003 featuring Jamie Boyle of Duke Law School and legendary documentarian D.A. Pennebaker was so popular that last year, Boyle and his colleagues at the Center for the Study of the Public Domain assembled a day-long conference titled "Framed!" to discuss many aspects of the copyright conundrum for filmmakers and musicians.

This year, festival co-organizer Laurie Racine says, the discussion evolves from talking about the problems to proposing a solution.

"Everybody is talking about rights clearances like Eyes on the Prize," she says. "But nobody is presenting any concrete viable solution, and that's what we're trying to do. We're trying to create a conversation between the people who are actively working on these issues from the policy and scholarly side who understand what it would take to put a sampling license regime in place, with the people who would have to embrace that kind of standard and make it an acceptable standard in the film community."

This modest proposal is still in the brainstorming phase, but the general idea is similar to BMI/ASCAP, the music industry's compulsory licensing system, which handles permissions and royalties. A practical solution for clearing rights in film would work in a similar way, Racine says. It would protect the rights of the original work's creator, and would cover only sampling, not use of the whole work. Artists themselves will have to be satisfied that such a system will protect their rights to their own work and offer fair terms for borrowing and building on the work of others.

Filmmakers are well aware of the problem. A recent study by American University compiled the stories of dozens of filmmakers and their difficulties getting rights. (To read the study, see www.centerforsocialmedia.org.) Finding out who owns the rights to material can be hard enough. Then there's the wait for replies to calls and letters, the negotiations over fees and usage. Filmmakers have little to bargain with. As a result, they sometimes choose to alter the reality they're documenting, cut the scene, or even avoid taking on projects they fear will lead to rights headaches.

The U.S. Copyright Office recently took public comments on a proposal to deal with a related problem, that of "orphan works": creative material abandoned by rights holders who are either dead, unreachable or simply uninterested in retaining the rights. (Those initial comments are posted at www.copyright.gov/orphan.)

Among those comments is a letter from Urban of USC's IP clinic, co-signed by a coalition of independent film and video organizations. While automatic copyright has been a benefit to creators, they write, many of those creators are impossible to locate. "Important cultural items languish, unusable by the creators who would revitalize them." The coalition proposes an incentive plan for both sides: a voluntary listing system for copyright owners, and a limit to the legal liability of those who make a good faith effort to ask permission.

"Frankly, having a fix to the orphan works problem and the rights problem helps the big studios, as well," Racine says. "They suffer some of the same frustrations as the small, independent filmmakers." But she admits it will be a tougher sell.

A conversation among artists is the first step toward fixing the system. Full Frame's organizers hope that conversation will grow. "It'll be interesting to see if this kind of discussion can spread to other film festivals around the country," Racine says.

Meanwhile, there's still time to chime in on orphan works. Reply comments are due to the U.S. copyright office by May 9 and can be submitted to the Web site.

Intellectual Property: New Rules will be held Friday, April 8 at 10 a.m. at the Durham Arts Council.

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