Archival Storytelling: A Filmmaker's Guide to Finding, Using, and Licensing Third-Party Visuals and Music

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More Praise for Archival Storytelling One of the best—and most needed—texts I have seen in a while. . . . The challenge is to keep what is a fairly technical aspect of filmmaking interesting without compromising the quality and depth of information. The authors have done an exceptional job in this regard by the careful interweaving of interviews with researchers, filmmakers, and legal experts through the factual material. . . . There is the strong sense of being in the presence of experienced filmmakers and researchers who accept that while there are standard practices, archival use and intellectual property laws etc. are contingent fields in which each case must be assessed and dealt with on its merits. —Bruce Sheridan, Chair, Film & Video Department, Columbia College I’ve been making historical documentaries for many years, yet I learned new things from this book. This is the definitive guide for archival research for documentary filmmakers. An invaluable resource. —Mark Jonathan Harris, Distinguished Professor, School of Cinematic Arts, University of Southern California, and writer/director, The Long Way Home and Into the Arms of Strangers Long overdue, this is the resource guide we’ve been waiting for. Connecting the nuts and bolts of the search for a shot with the current challenges of new media and fair use, Archival Storytelling brings the past right up to the present. —Gail Dolgin, co-producer, Daughter from Danang and Summer of Love It’s hard to imagine a more organized, comprehensive dissection of Byzantine material. The authors have produced a tremendous guide for all who use archival resources. Best of all, because of their effort, I believe more individuals will be able to access and properly utilize such material. This book will serve filmmakers and, in turn, the public for years to come. —Thomas Speicher, Video Production Developer, Pennsylvania College of Technology, and producer, Degrees That Work Not simply a “how-to” manual, it is also a discussion of ideas, issues, and history that creates an enjoyable text even when the subject matter becomes complicated. . . . The real world examples, the roundtable discussions, and the exploration of ideas and issues surrounding the technical aspects are very welcome and well done. —Dustin Ogdin, filmmaker, Spoke Digital Films

Praise for Bernard’s Documentary Storytelling With the availability of high-quality affordable cameras and editing equipment, documentary filmmakers today enjoy a freedom in shaping their films that their counterparts a decade ago couldn’t have imagined. As the new aesthetic is shaped, Sheila Curran Bernard’s brilliant and effective Documentary Storytelling . . . aims to guide the Errol Morrises of tomorrow with great advice and practical knowledge that every documentarian would benefit from. —BackStage With all the buzz over blockbuster docs, Focal Press serves up a perfectly timed winner in a much-neglected area. True to the nature of the beast, the book is more about filmmaking as a whole, and how and where storytelling weaves into the overall process. It succeeds in covering every aspect without belabouring any. Not only does Bernard write from the viewpoint of an award-winning filmmaker (she’s a writer, director, and producer), but the last 100 pages include extensive interviews with a wide range of acclaimed documentarians. —Canadian Screenwriter (Writers Guild of Canada) [A] pragmatic exploration of the role of narrative in nonfiction filmmaking . . . In writing this volume Bernard demonstrates to documentarians how story can be more effectively incorporated into every level of nonfiction filmmaking from conception to development and pre-production, in the field and in the editing room. Her discussions incorporate many examples from contemporary documentaries to illustrate a variety of salient points. —Documentary (International Documentary Association) While documentaries are nonfiction, they are certainly not objective, and even the smallest choices in writing, filming, interviewing, narrating, or scoring can drastically alter the perspective of the film, and in turn, the audience. Bernard is keenly aware of the power of persuasive images, and her insistence on complexity and integrity is a consistent theme throughout the book. —The Independent (Association of Independent Video and Filmmakers)

Archival Storytelling

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Archival Storytelling A Filmmaker’s Guide to Finding, Using, and Licensing Third-Party Visuals and Music

Sheila Curran Bernard Kenn Rabin

AMSTERDAM • BOSTON • HEIDELBERG • LONDON NEW YORK • OXFORD • PARIS • SAN DIEGO SAN FRANCISCO • SINGAPORE • SYDNEY • TOKYO Focal Press is an imprint of Elsevier

Cover photo: On main street of Cascade, Idaho, July 1941. Photograph by Russell Lee (1903–1986) for the Farm Security Administration-Office of War Information. (Collection 11671-15, Library of Congress Prints and Photographs Division, http://hdl.loc.gov/ loc.pnp/fsac.1a34209.) Focal Press is an imprint of Elsevier 30 Corporate Drive, Suite 400, Burlington, MA 01803, USA Linacre House, Jordan Hill, Oxford OX2 8DP, UK Copyright © 2009, Sheila Curran Bernard and Kenn Rabin. Published by Elsevier Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone: (44) 1865 843830, fax: (44) 1865 853333, E-mail: [email protected]. You may also complete your request on-line via the Elsevier homepage (http://elsevier.com), by selecting “Support & Contact” then “Copyright and Permission” and then “Obtaining Permissions.” Library of Congress Cataloging-in-Publication Data Bernard, Sheila Curran. Archival storytelling : a filmmaker’s guide to finding, using, and licensing third-party visuals and music / Sheila Curran Bernard, Kenn Rabin. p. cm. Includes bibliographical references and index. ISBN 978-0-240-80973-1 (pbk. : alk. paper) 1. Documentary films—Production and direction. 2. Archival materials. I. Rabin, Kenn. II. Title. PN1995.9.D6B393 2008 070.1’8—dc22 2008017431 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: 978-0-240-80973-1 For information on all Focal Press publications visit our website at www.books.elsevier.com 08 09 10 11 5 4 3 2 1 Typeset by Charon Tec Ltd., A Macmillan Company. (www.macmillansolutions.com) Printed in the United States of America

Contents Acknowledgments CHAPTER 1

PART 1

Introduction ●

CHAPTER 2 CHAPTER 3 CHAPTER 4 CHAPTER 5

PART 2

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PART 3

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CHAPTER 11 CHAPTER 12 CHAPTER 13

CHAPTER 16 CHAPTER 17 CHAPTER 18 CHAPTER 19

PART 4

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85 97 117

vii 131 141 159 189 201 211 229 241 265 283 295

Additional Material Sources and notes Books Films About the authors

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Licensing It Introduction to rights and licenses The public domain Getting things right: A conversation with Lawrence Lessig Fair use Fair dealing, moral rights, and more: A conversation with Hubert Best Licensing visuals Licensing music Legal considerations: A roundtable discussion Afterword

CHAPTER 14 CHAPTER 15

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Using It Practical considerations Ordering what you need Creative considerations An ongoing process: A conversation with Geoffrey C. Ward Ethical considerations: A roundtable discussion

CHAPTER 10

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Finding It What are archival materials? Finding what you need Should you hire a professional? A global perspective: Conversations with image researchers

CHAPTER 6 CHAPTER 7 CHAPTER 8 CHAPTER 9

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303 309 311 317 319

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Acknowledgments Filmmaking is highly collaborative, and we each owe a debt of gratitude to the many individuals and organizations with whom we’ve worked and from whom we’ve learned over the years. We want to specifically thank the individuals consulted during the preparation for this book, and especially those whom we interviewed; all were extraordinarily generous with their time and expertise. We are also grateful to the Graduate Program in Journalism at the University of California, Berkeley; the MFA Program in Documentary Film and the Film and Media Studies Program, both at Stanford University; and the Center for Internet & Society at Stanford, for hosting two exciting afternoons of panel discussions on the legal and ethical issues of archival storytelling for our benefit. We learned a great deal not only from the panelists but also from the students and filmmakers who joined us. At Focal Press, we are grateful for the enthusiasm and expertise of senior editor Elinor Actipis and a remarkable team including Michele Cronin, Dawnmarie Simpson, and Cara Anderson. We need to thank our manuscript reviewers, including Dustin Ogdin, Bruce Sheridan, Thomas Speicher, and others, for being so generous with their time and insight. Any errors in this book, however, are ours, and we’d be grateful if you’d bring them to our attention at www.archivalstorytelling.com. Sheila wishes to thank Kenn for agreeing to this enterprise and committing to many enjoyable hours of detail-filled, long-distance collaboration, along with a very productive trip to the Bay Area. She thanks her friends and colleagues in Boston, New York, Plainfield, Princeton, Washington, and beyond, as well as every member of the extended Bernard family, especially Kathleen and David, and of course, Joel D. Scheraga. Kenn wants to thank Sheila for her sharp mind, good spirits, and unerring sense of structure and economy. Thanks also to Robin Jacobson and to all his teachers and mentors on the journey. Too many names, but special thanks for inspiration to Martin Smith, Raye Farr, Jerome Kuehl, Bill Moyers, Lynne Farnell, Judith Vecchione, the late Henry Hampton, and Jon Else. He dedicates his work on this book to the memory of L. Richard Ellison. Sheila Curran Bernard Kenn Rabin September 2008

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CHAPTER 1

Introduction Filmmakers tell stories—about the past, the present, even the future. Some stories are invented, while others are drawn in part or entirely from real life. In many cases, this storytelling is bolstered by the use of archival materials—motion picture, stills (including artwork and graphics as well as photographs), sounds, and music—that were created by someone other than the filmmaker. These archival (or “third-partyowned”) materials may be amateur or professional in origin. Under this definition, a commercially-recorded song used in a film’s soundtrack, a home movie found in the attic of the filmmaker’s grandfather, or a photograph obtained from the local historical society would all be considered “archival.” In some cases, the use of archival material adds real-world verisimilitude to fictionalized storytelling. For example, the Academy Award– nominated Good Night, and Good Luck, directed by George Clooney, incorporated television footage (including news, entertainment shows, and commercials) from the 1950s in its portrayal of the work of journalist Edward R. Murrow. In The Queen, director Stephen Frears’s look at the British royal family in the wake of Princess Diana’s death, actors portrayed Queen Elizabeth, Prince Charles, and Prime Minister Tony Blair, but Diana was present on screen only as she appeared in archival news footage. In documentary programs, archival materials may be used as visual (and aural) evidence of the past. The multipart series Eyes on the Prize used news footage, independent films, period music, and more to tell stories of America’s civil rights movement. Werner Herzog’s Grizzly Man relied on a video diary, shot by naturalist Timothy Treadwell, to explore the psyche of a man who would risk his life to live among wild

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bears. One of the most powerful moments in Alex Gibney’s Enron: The Smartest Guys in the Room comes from an audio recording in which Enron traders can be heard telling power company executives to shut down parts of California’s electric grid. At other times, archival materials are used to fill a general need for visuals without being specific to time or place. This can provide a valuable and even entertaining context for a subject. Filmmaker Michael Moore, for example, uses advertising, public relations, and news footage to humorous effect in Bowling for Columbine. Archival materials may also be used not to invoke the past but instead to augment a filmmaker’s exploration of the present. For example, while it can be more expensive to purchase footage than to shoot it, there are times when it makes sense to do so to overcome limitations of budget, access, or skill. A filmmaker working in central Ohio, for example, might seek to acquire modern-day aerials of the Manhattan skyline simply because the expense of traveling to New York, renting a helicopter, and hiring a crew—all the while hoping for good shooting conditions—can be prohibitive. Someone making a film about zoo animals in Scotland might want to acquire footage that shows related animals living wild in remote locations. Footage of space exploration, the inner workings of certain powerful corporations, or extreme weather conditions are all examples of material that you might prefer to acquire rather than film yourself.

What Are Archival Materials? This range of acquired images and sound generally described as archival audiovisual materials might include: ■

■

Illustrative moving images, such as “beauty” shots of famous landmarks, sunsets, time-lapse photography (flowers opening, night falling over a city), and aerial photography (motion picture shot from a helicopter, blimp, or other aircraft). These are often owned by commercial enterprises and sometimes by the individuals who shot them. Historical moving images and stills, such as footage and photographs of newsworthy events. In general, the greater the importance of the moment and those involved, the more likely it is that you can find this material at commercial entities, such as television networks or newsreel houses. But historical images exist for a wide range of events, some of which may have never reached the national news and instead were documented by local crews

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■

■

■

■

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and archived at local television stations, libraries, historical societies, and even personal collections. Personal moving images and still photographs include a wide (and with changes in technology, growing) body of materials, including home movies, home videos, and snapshots owned by individuals or families. Commercially-owned photographs of any kind, generic or specific, including press photos, stock photos from agencies, wire service photos, celebrity service photos, and others. Graphics such as antique maps, fine art (including paintings, textiles, and such), editorial cartoons, movie posters, and newspaper headlines. Flat art may be used to augment visuals for events that predate the invention of photography or to provide context and commentary on historical events. (How were artists responding to political or social upheaval or other events?) A newspaper headline may serve when there is no film or still coverage of an event; a headline can also quickly and efficiently push the story ahead. Music, including music not created expressly for your project (as a “work for hire” by a composer, for example), and preexisting recordings that come from CDs or other sources not originally recorded by you. Sound; for example, the “wild” (unsynchronized) audio of events in lower Manhattan on September 11, 2001, or a radio broadcast of Edward R. Murrow reporting on the London blitz in the 1940s. Wild sound can be used to bring still images to life; it can also help to evoke a time period in a feature film (as when filmmakers place actors in front of a radio to listen to an actual historical speech or news broadcast).

Who Uses Archival Materials? When people think of archival use, they probably think first about historical filmmakers such as Ken Burns and Lynn Novick, whose World War II series, The War, premiered on American public television in 2007. But a surprisingly diverse group of people uses archival materials, including not only documentary filmmakers but also advertising agencies, public relations firms, news organizations, fiction filmmakers, makers of educational material, students, and the general public. Any time you order a photograph from the collection of ship images at Ellis Island, or search through military records at Ancestry.com, or visit

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a local museum or historical society, you’re benefiting from the preservation and accessibility of archival materials. Among the most influential users of archival materials are advertising agencies, whose (relatively) high budgets have shaped today’s market and, to some extent, driven prices up. These agencies tend to rely on commercial stock houses; while fees may be higher than elsewhere, turnaround times are often shorter. In contrast, independent filmmakers may have less money but more time to do the digging that’s often required to find material in alternative, less expensive places. Nearly all filmmakers, at some point in their careers, will want to use third-party materials or will be asked to license their own work to someone else. And despite perceptions, this use does not need to destroy your budget or schedule. With some creative thinking and perseverance, even filmmakers with limited funding should be able to find useful and affordable materials.

Who Owns Archival Materials? 4

The short answer is: everybody, from you and your family (those boxes of photographs you’ve been meaning to sort, along with home movies, audiotapes, school papers, and more) to some of the wealthiest individuals, institutions, and corporations in the world. Bill Gates, the U.S. government, and the British Crown are just a few of the world’s notable collectors.

Challenges of Archival Storytelling The complexity of finding, using, and licensing archival images and sound can be daunting, even to experienced filmmakers. The following are some of the challenges filmmakers routinely face: ■

■ ■

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The rights to the photo, footage, or music you want to use are either not available or the license fees are so expensive you can’t possibly afford them. You’ve seen footage you’d like to use but have no idea who created it or where to find it. You found footage that was perfect, but people in the image are singing a song, and now you have to negotiate separately for permission to use that song. Although you cleared the necessary rights for your film four years ago, some of them were time limited and are now expiring, so you can no longer sell or distribute your film.

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■ ■

You’ve got archival material in hand that works well in your film, but the identity of the rights holder can’t be found. You’ve discovered that someone else has incorporated portions of your work in their program without your consent.

We’ll address these issues and others in the following pages, drawing not only on our own experiences but also those of other filmmakers, legal experts, film and music researchers, insurance executives, and others.

The Importance of Access Although it can be difficult to find and use third-party sounds and visuals, it’s our hope that in offering strategies for doing so effectively and economically, we can encourage filmmakers to continue to make the effort. This is our heritage, and filmmakers have a right and even, arguably, a responsibility to draw on that heritage in the creation of new work. “When we stop allowing each generation to be actively involved in interpreting and reinterpreting history, then we’re creating a real disservice for everyone involved,” filmmaker Orlando Bagwell, a program officer in the Media, Arts, and Culture Unit at the Ford Foundation, said in a 2005 interview. “That’s when history is really exciting; when each generation has its chance to consider it in terms of their times and needs and experiences.” The good news is that a lot of talented, determined people are working to find effective and creative ways to resolve many of these issues, and we explore many of their efforts in these pages.

The Impact of Technology Fifteen years ago, a researcher or producer had to visit an archive to see what material was available, much of which was news or other mainstream content. Today’s researcher can do a growing amount of investigation online, using the Internet to find an unprecedented variety of elements for film storytelling: text, music, high-resolution digital photography, and moving images. (Over time, more and much longer clips will not only be viewable online but will be downloadable to your edit room.) These materials can not only be archived (stored), but also scooped up (ripped) from cyberspace instantly and then edited or sequenced into any story or playlist we wish, using software that even 10 years ago was expensive, complex, and reserved for professionals—and is now both inexpensive and user-friendly. The resulting edited or “mixed” images and sound can be saved (burned) and stored

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locally, or delivered (published, distributed, or exhibited) instantly via broadcast or DVDs, or made available to anyone via new (but increasingly mainstream) venues such as YouTube, Facebook, Flickr, and others. Ultimately, it can play not only on television sets and computer screens, but also on iPods, cell phones, and whatever technology comes next. Such freedom also requires responsibility, and it is our hope that this book, by clarifying and defining such terms as fair use, copyright, intellectual property, and Creative Commons, can better prepare media makers to not only protect their own creative rights but also to understand and respect those of others. At the same time, we hope this information will further prepare readers to fight for the accessibility and affordability of materials that are, at present, slipping out of reach.

Reading Between the Images

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An interesting aspect of archival footage is the information it unintentionally conveys. Some of the earliest surviving snippets of captured movement depict intimate and ordinary moments of daily human life. These were created as “tests” for the newly-invented medium of motion pictures: a sneeze, a kiss, a train pulling into a station, an image of New York Harbor from a circling vessel. Almost immediately, however, the power of film to record larger events was recognized: Early film cameras focused on the battlefields of war, the aftermath of a catastrophic earthquake in San Francisco, the stunt of electrocuting an elephant to argue for the safety of direct versus alternating electrical current, and the spectacle of space travel as imagined by French filmmaker Georges Méliès. But look more closely at these early motion pictures, whether they capture actual or staged events. Edwin S. Porter’s early drama, The Great Train Robbery, reveals more about the geography of Essex County, New Jersey, in 1903 (where the exteriors were filmed) than about the activities of cowboys and train robbers in the Wild West. Filmmaker D.W. Griffith’s early short, The New York Hat, offers a look at the clothes, traffic, and even sunlight on a New York street in 1912, while it also exhibits the talents of many individuals who would go on to great renown. Any visual record of the past is likely to have value. A colleague in charge of a local television news archive (1950s through 1970s) in a major American city was running out of storage space for her collection. She was encouraged to eliminate such items as the evening news stories about random apartment fires from over 50 years ago. She refused. “How are we going to know what a city fire truck looked like 50 years ago, or the firemen’s uniforms, or what equipment they had

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and didn’t have?” she asked. Archival materials can provide the historian, film historian, and sociologist with unexpected treasures. They truly are a window into our past. On the other hand, archives face some very real and pressing challenges. Even as collections continue to grow, space is limited, money and time are tight, and technology continues to evolve, rendering materials in one format obsolete and requiring their migration to another. In addition, all audiovisual materials deteriorate over time, so archivists must be concerned with their preservation—a goal that at times may be viewed as conflicting with pressure to make (or keep) collections accessible for use by scholars, filmmakers, and others.

The Camera Can Lie Even as archival images can be used as evidence of the past, they also require careful scrutiny and analysis. All too often, there is a tendency among filmmakers and their audiences to take photographs and motion picture footage at face value as unmediated depictions of actuality. Instead, it’s important to explore such critical questions as why, for whom, and by whom the images were shot. Many filmmakers use newsreel footage, for example, without knowing that it was sometimes staged, with actors portraying figures of recent history. Some of the world’s most iconic images were created for the purposes of propaganda or public relations. Conversely, there are iconic moments that many people believe they’ve seen on film, and archivists tear their hair out trying to find them—but they were never filmed. The ability to read and question archival imagery is an important part of basic media literacy. Viewers should be aware that the elements of a film, including the historical elements, are subject to manipulation at many stages of their creation, from the moment they’re originally shot to their use, decades later, in a documentary or dramatic film. Sent to shoot a mob, the original camera operator may have shot tight and close, creating an impression of a crowd where none existed. Intent on portraying an individual’s guilt, a news photographer may have used unflattering angles and harsh lighting or perhaps worked in a darkroom to juxtapose two unrelated images. Farm Security Administration photographers, sent out in the 1930s to capture images of farmers and laborers, often photographed them from low angles to make them look more noble. More recently, filmmaker Martin Scorcese set out to make a concert film of the Rolling Stones, but his team carefully selected and even suggested outfits for some audience members who would appear in the front rows, ensuring that they (in particular, the women) would

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be younger and more stylish than is reportedly typical for a Stones concert. Fifty years from now, as a result, Shine a Light may offer a reliable visual record of the Stones performing, but a flawed record of the group’s following. In addition, users of archival visuals—moving images in particular— can and often do alter color, speed, even background sound. With the right sound effects, a peaceful archival street scene can become the site of conflict, as shots and screams are heard. This footage, with its new audio track, may then be used by a subsequent producer, and unless he sufficiently authenticates his archival find, the facts of the original scene may become even further distorted.

Who Owns the Past?

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Some filmmakers, especially those who’ve been priced out of using third-party images and music that they believed were critical to their films, are angered by the notion that these materials can be protected for many decades as “intellectual property.” In time, however, many of these same filmmakers struggle to determine what to charge when others want to use their footage as third-party material in new works, or they’re dismayed to find that their footage was used in ways they didn’t authorize and for which they weren’t compensated. Throughout the book, we explore intellectual property issues with the help of leading figures. In particular, we look at key areas of property law that can benefit filmmakers, most notably the public domain— materials that are not under copyright protection, either because they weren’t eligible for it, copyright was not sought, or copyright has expired. There is a surprisingly vast and diverse body of such materials available, if you know where to look. (Not that it’s always available to you, as a filmmaker, for free. Ownership also makes a difference. One collection recently tried to charge a filmmaker upwards of $4000 to use two illustrations by Leonardo da Vinci, who died in 1519—and that was their discounted price!) We also look at a legal exception to copyright in the United States, a principle known as fair use, in which copyrighted materials can be used for specific purposes and in reasonable quantities without licensing. With that said, many important collections have been privatized or are part of someone’s investment strategy, rendering our collective history as a “product” for which significant money can be sought. Archives are big business. Corbis, a privately owned digital stock photography company founded in 1989 by Microsoft founder Bill Gates, owns licensing rights to roughly 100 million images. According to a 2006 Business

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Week article, “Bill Gates’ Corbis is the feisty No. 2 in the $2 billion market for managing photos, video, and other imagery for the advertising, marketing, and publishing industries.” Corbis’s primary (and much larger) rival, Getty, went up for sale in January 2008 and sold, according to The New York Times, for $2.4 billion.

When Do You Need to Think About Archival Materials? In general, films start out as ideas or concepts, or perhaps a broad attraction to a situation or subject. An experienced filmmaker begins to explore these broad areas and find a story or stories through which to present the subject and its themes. At the same time, the filmmaker begins to consider the approach—how she’ll tell the story. Will there be interviews? Animation? Archival footage or stills? Music? How will these materials be used, what role will they play in the film, how critical is it that the filmmaker obtain exactly the images or sounds being considered? It’s fair to say that most filmmakers think about both archival images and music later in a production than they should. This is a problem for two main reasons. First, archival materials can often inspire new or different thinking about a film’s subject or story. Second, the route to finding, licensing, and acquiring masters of third-party materials can be complicated and costly. The more time you leave for this work, the better able you’ll be to handle obstacles and the more likely it is that you’ll be able to find suitable, lower cost and even rightsfree alternatives where necessary. Ideally, you should be thinking about third-party materials from the start of a project. In many cases, a beginning awareness of archival resources informs your film storytelling even at the outline and treatment stage, before you shoot. If you’re going to write fundraising proposals or present “pitch” documents to production executives or others with the power to “greenlight” your film, you need to know if your plans are realistic. Does footage of that deep-water archeological excavation even exist? Do you anticipate a wide commercial release for your film, and if so, do you expect to be able to raise enough money to pay rights fees for expensive Hollywood clips? You may want to refer to archival materials as you shoot. And certainly during the various stages of editing—assembly, rough cut, fine cut, picture, and sound lock— you’ll be making archival choices and probably conducting additional research as your storytelling goes in unanticipated directions.

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In other words, archival use should not be an afterthought. Don’t censor yourself, especially early on, by presuming that you can’t afford the materials you need. Become informed enough to know what obstacles you may face and where you might look for creative, lower cost alternatives. One of the least effective ways filmmakers use archival materials is to wait until the last minute and then just plug holes in the visuals or soundtrack, simply keeping eyes and ears busy while the talking heads or narration carry the story. Think more organically. Think about archival storytelling.

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While we have tried to be as comprehensive as possible, no one book can cover a topic as complex as this. Where possible, we are offering supporting materials on a companion website, www.archivalstorytelling.com. On the site, you’ll find an alphabetical listing of the archives and professional organizations mentioned in these pages, along with URLs and other information. We also offer links to other sites that may be useful and to templates that may come in handy, such as materials releases and ordering forms. We use the term filmmaker exclusively, and not video maker, media artist, digital artist, or any other terms that might apply. This is only for the sake of making the text more readable; we mean the term (and the book) to be inclusive of a range of media makers and their work.

Intended Readership This book is intended for filmmakers and students of film, the vast majority of whom will want or need to work with archival materials at some point in their careers. This is true whether they’re working in fiction or nonfiction, traditional documentary or multimedia mashup, long format or short, independently or for hire. It’s our hope to take at least some of the mystery out of this work by providing a better understanding of what archival materials are, in what kinds of places they might be found, how a variety of creative artists work with them, and how a filmmaker can go about obtaining and licensing copies for use. Whether you do this work on your own or find that it proves to be more cost effective (and even simply more effective) to work with professionals, the more you understand about this process the better off you’ll be. We also hope that this book will interest educators and members of the public and help raise the general understanding of the creative

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ways that filmmakers use third-party materials, the obstacles they face in doing so, and the vocabulary everyone needs when discussing rights and responsibilities in a new, exciting, digital marketplace.

International Issues We began this project with every intention of making it as international in scope as possible. However, intellectual property laws are not only mind-bogglingly complex, they also vary from nation to nation. For this reason, our primary focus is on American intellectual property law as it pertains to archival use, including copyright, public domain, and fair use. Where possible, though, we’ve also discussed these terms as they may apply or have some form of counterpart elsewhere, especially in Europe and among the Commonwealth Nations. And we’ve noted where clearance of rights in the United States may be insufficient if you want to distribute your film elsewhere. We’re hoping that by at least starting to untangle the web of rights and licenses in the United States, which has a news and entertainment industry that continues to be globally powerful, we’ve gotten the conversation going. In subsequent editions we may be able to focus more closely on rights issues as they pertain to filmmakers working around the globe. We certainly hope this book helps when you want to research, acquire, and license footage from the United States. American archives, both public and private, are unusually unrestricted when it comes to foreign use.

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Disclaimer While we have made every effort to be accurate and current in the information contained in this book, we are not lawyers and do not intend that anything contained in this book be construed as legal advice, which we are not qualified to give. Before entering into any kind of legal arrangement, whether as a filmmaker seeking material from a rights holder or as a rights holder responding to a request for your material, you are advised to seek qualified legal counsel.

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PART 1

FINDING IT

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CHAPTER 2

What Are Archival Materials? Archival filmmaking could not exist if archival materials—the source images and sounds—didn’t exist. The range of materials to draw on is vast, including artwork, maps, and other items that predate the invention of still photography. For the purpose of this book, we’ll generally focus on photographic images and recorded sound—more than 150 years of material.

Still Photography Archival researchers are often amused and/or frustrated when they’re asked (surprisingly often) to find photographic images of events that took place long before the invention of either still or motion picture photography. The earliest known image that we think of as a “photograph” was created around 1826, when French inventor Nicéphore Niépce made what he called a heliograph (“sun drawing”) of the roofs outside his garret window. The exposure took eight hours. Just over a decade later, in 1839, Niépce joined with Louis Daguerre to develop the daguerreotype. American photographer Matthew Brady used the daguerreotype process early in his career to create studio portraits. Over time, he adopted the newer, faster photographic processes being developed in the United Kingdom, with which photographers “fixed” positive images onto glass or metal plates. By the time of the American Civil War (1861–1865), Brady was making large negatives on plates; the negatives could yield multiple identical prints (on paper treated with albumen or salt). Of key importance to archival filmmakers, however, was Brady’s decision to hire a group of photographers to join him in taking the equipment

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out of the studio and onto battlefields. Brady collected his employees’ negatives and also bought negatives from other photographers present, publishing these images under his own name. (The collection, in the U.S. Library of Congress, offers an early example of archival manipulation: Historians determined that a Brady photographer had repeatedly moved and posed the body of a Confederate sniper.)

Wire Services

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In the 1830s, inventors in the United Kingdom patented the first commercial electrical telegraph, a device for transmitting text over long distances. Independently but simultaneously, American inventor Samuel F.B. Morse also patented an electrical telegraph, and by the 1840s he had convinced the U.S. Congress to wire the nation. The organization that became the Associated Press was formed in 1846, and by the time of the Civil War, AP reporters were using the telegraph to communicate in real time with their home newspapers. By the 20th century, telegraph wires spanned the globe and wireless technology (the radio) was gaining in popularity. Until 1880, photographs could not be reproduced in newspapers. Instead, articles might be illustrated with woodcuts or engravings, sometimes rendered after a photograph. That year, the invention of the halftone process enabled photographs to be converted into thousands of dots of varying sizes for reproduction in newspapers. In 1921, for the first time, halftone images were also transmitted via telegraph. And in 1935, the Associated Press began WirePhoto, the first wire service for photographs.

Motion Picture Photography Perhaps inevitably, the advent of still photography gave rise to the invention of motion picture photography, which exploits a phenomenon known as “persistence of vision.” A series of stills, observed in rapid sequence, are perceived by the human eye and/or brain as being in motion. Inventors early in the 19th century created entertainment devices, such as the Zoetrope, Thaumatrope, and Fantascope, that exploited this phenomenon. In the 1880s, still photographer Eadweard Muybridge used multiple cameras to photograph a horse in motion. Building in part on Muybridge’s work, Thomas Edison and colleagues set out to create a motion picture camera and a device for projection. Their debut efforts included Dickson’s Greeting (1891), a silent camera test in which inventor W.K.L. Dickson tips his hat, and The Edison

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Kinetoscopic Record of a Sneeze, also known as Fred Ott’s Sneeze (1894), the earliest surviving copyrighted motion picture in the United States.

From Fred Ott’s Sneeze, filmed January 7, 1894. Courtesy U.S. Library of Congress.

In 1895, French brothers Auguste and Louis Lumière recorded and projected the first true vérité motion pictures. Their early films were very short “takes” of everyday life, such as workers leaving a factory, a couple feeding their baby, and trains arriving at various stations. These short slices of reality, actuality films, intrigued audiences in Europe and the United States for the next decade, as technology evolved and spread. Filmmakers today are often delighted to discover that films from this era exist, depicting vaudeville and Wild West acts, prize fighters, stage performers, travel footage, and more. As with any archival materials, these films reflect the biases of their times and makers. Stereotypes of race, gender, and class are often evident, yet when viewed within a wider context (including the venues in which they were shown and the audiences with whom they were popular), they are illuminating in ways not imagined by their original creators.

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The Rise of Hollywood In the United States, the film industry was initially centered in New York and, to a lesser extent, Chicago. In addition to actuality films, producers began to shoot short comedies, novelty films (such as early animation), and dramas. One of the most important “studios” was the American Mutoscope and Biograph Company (1895– 1928); their top director, D.W. Griffith, made stars out of Lillian Gish, Mary Pickford, Lionel Barrymore, and others. In 1910, some of the Biograph staff left for Los Angeles, where they and other film companies reportedly found the Southern California climate more conducive to year-round filmmaking. That same year, a 120-acre municipality was joined to the city of Los Angeles, and “Hollywood” was born. By 1915, Griffith had invented the American feature film, producing and

WHAT ARE ARCHIVAL MATERIALS?

directing The Birth of a Nation, a still-controversial, three-hour silent melodrama about the rise of the Klan in the aftermath of the Civil War.

Music Recording

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Until the end of WWI, the music industry was focused on publishing and distributing sheet music, in part to satisfy demand created by the growing popularity of the piano. By the end of the war, recordings had supplanted sheet music as the widest form of music distribution. Played on turntables that could be bought for home use, these records were 10- and 12-inch disks that ran at 78 revolutions per minute (rpm). Long-playing records (known as LPs) were introduced to the public in 1948 by Columbia Records and became the standard (along with 45-rpm singles) until the CD gained in popularity, starting in the mid-1980s. The range of recordings is surprisingly wide, from classical music to jazz, from recorded sermons to radio broadcasts. As early as the 1890s, in fact, inventors developed a range of formats to capture sound, including wax cylinders and flat transcription disks. Anthropologists, ethnographers, and musicologists brought this bulky technology into the field to document not only music but also speech, wildlife, and more.

Radio In 1893, Nicola Tesla demonstrated how radio waves could be transmitted, and by 1901, Guglielmo Marconi had successfully sent a radio signal across 2000 miles of ocean from the United Kingdom to Newfoundland. (Marconi shared the Nobel Prize in Physics in 1909 with another early radio pioneer, Karl Ferdinand Braun.) But radio broadcasting as we think of it today emerged in the 1920s. On Thanksgiving Day, 1921, students broadcast live play-by-play of a football game between Texas A&M and the University of Texas, ending in a frustrating 0-0 tie. As broadcast offerings expanded rapidly, customers clamored for receivers, which they could buy in stores or build at home from kits. Early radio content was diverse, from sermons and Bible readings to music, news, and entertainment, including radio dramas, comedies, and quiz shows. As television began to eclipse radio in popularity, many of these programs made the transition as well. Filmmakers seeking important radio broadcasts from much of the 20th century are mostly in luck. By around 1930, important broadcasts began to be preserved on transcription discs, shellacked aluminum discs of various sizes. Wire recorders arrived after World War II, and

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by the 1950s, reel-to-reel audiotape was used for radio transcribing. As we discuss in upcoming chapters, acquiring this material is generally not difficult, and some of it is in the public domain. Many of the most important news and entertainment shows are even available remastered on home CDs and DVDs.

Newsreels Some of the early actuality films, described earlier, could be considered news reports in that they presented short clips of political and sporting events and travelogues. But newsreels, created specifically to provide (relatively) current events to the public in cinemas, were first produced in 1909 by the Pathé company in France. Newsreels grew increasingly popular in Europe and the United States during World War I, and by the end of the 1920s, almost every major studio in Hollywood released weekly or biweekly newsreels, such as Paramount News, Universal Newsreel, and Fox Movietone. There were some exceptions. Hearst Corporation, for example, produced MGM’s newsreels (called News of the Day and, later, Hearst Metrotone). RKO and, later, Warner Brothers, both released American versions of Pathé newsreels under the Pathé name. Newsreels were shown in movie theaters until about 1967, creating a substantial archival treasure trove. As journalism, newsreels varied significantly in quality. Many totaled seven or eight minutes and included a variety of short stories on politics, natural disasters, people, sports, fashion, and other topics. Newsreels were narrated in urgent, stentorian tones, and some of the stories presented as news were actually recreations, involving actors and film sets. One of the newsreels most noted for this technique was Time, Inc.’s The March of Time, exhibited between 1935 and 1951. The series was very popular with audiences, in part because of its high production values. Rather than rush out a handful of stories each week, time and money were spent to cover fewer stories at greater length and in a more polished form; new editions were only released about once a month. But when footage proved disappointing to program executives, they weren’t shy about compensating: A 1938 story titled Inside Nazi Germany, for example, includes documentary footage shot on assignment by noted cinematographer Joris Ivens, augmented by recreations of Nazi atrocities—featuring hired actors in New Jersey.

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Specialty Newsreels Some newsreels were specialized. In 1935, for example, Paramount Pictures premiered Popular Science (1935–1950), which followed new

WHAT ARE ARCHIVAL MATERIALS?

scientific advances and inventions. Between 1942 and 1946, the U.S. Office of War Information created United News to counter propaganda from Axis countries. Also in the 1940s, producers William Alexander and Claude Barnett created All-American News to offer an AfricanAmerican perspective to targeted audiences, primarily in black theaters and churches. Each of the 45 issues included stories about AfricanAmerican involvement in the war, black athletes and celebrities, and other stories.

Government-Sponsored Documentary

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Beginning in the late 1920s, much of the world succumbed to a severe economic downturn that lasted well into the 1930s. Arguably, many of the strongest films of this era were made with government support. In the United Kingdom, a unit under the direction of filmmaker John Grierson was hired by the General Post Office to show the importance of postal work. The “GPO Film Unit” produced a series of acclaimed films, including Coal Face, a celebration of Welsh miners, and Night Mail, following the mail train that traveled from England to Scotland. Combining actuality filmmaking with high art, these films feature music by Benjamin Britten and a narrative written by poet W.H. Auden. In the United States, the Resettlement Administration and the Farm Security Administration, both part of President Franklin Delano Roosevelt’s New Deal, oversaw a remarkable campaign to use radio, still photography, theater, and motion picture to document and celebrate American life and, not coincidentally, keep a significant number of people employed. Between 1935 and 1944, still photographers Dorothea Lange, Walker Evans, Jack Delano, Russell Lee, Marion Post Wolcott, and others created about 250,000 images of the American landscape and people, of which about 164,000 are held at the U.S. Library of Congress. Filmmaker Pare Lorenz created The Plow that Broke the Plains, about environmental devastation in the southwestern Great Plains, and The River, a poetic tribute to the Mississippi River and an argument for the work of the Tennessee Valley Authority. (The script for The River, available online, was nominated for the Pulitzer Prize for poetry, and composer Virgil Thomson’s scores for both films are still played in concert halls today.) Other U.S. government initiatives, including the Works Progress Administration (WPA, later known as the Works Projects Administration), funded a range of civic projects, from construction to the performing arts. The WPA records are vast: At the National Archives alone, more than 94,000 still photographs, 100 films, and 400 radio broadcasts

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survive from the era. For filmmakers, historians, and others, these records are of tremendous value, and because they were created under the auspices of the government, much of this material is in the public domain.

Military Collections Each branch of the U.S. military—Army, Navy, Air Force, and Marines— has its own collection of material, and in most cases, this material is in the public domain. Some of it is forwarded from the military branch to March Air Force Base in Riverside, California, and from there to the U.S. National Archives and Records Administration (NARA). Military material as recent as the 1980s has made its way to the Archives, and new material is added regularly. The earliest military footage dates back to WWI; these military sources include still photographs, audio recordings, and oral histories.

Miscellaneous and Ephemeral Films Ephemeral films is a term coined by archivist and filmmaker Rick Prelinger, board president of the Internet Archive and founder of the Prelinger Archives (acquired by the Library of Congress in 2002). It describes a range of audiovisual material that, as early as the 1910s, was created by industry, corporate, and educational groups for a variety of reasons. Over time, the body of “ephemeral films” expanded considerably as growing numbers of companies used audiovisual media for promotional, educational, and sales purposes. Ultimately, almost anyone who had a product to sell made a film about it. For example: ■

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Henry Jamison “Jam” Handy, an Olympic athlete, became a pioneer in developing sales, corporate, and educational films and photographs after studying the psychology of salespeople and consumers. The Jam Handy Organization (started after World War I) created materials for salespeople and students, consumers and educators, with titles such as Hired!, The Selling Wizard, and The Prom: It’s a Pleasure! In 1927, when the Bell System was replacing crank-and-hook phones with dial phones (eliminating the need for an operator to place each call), they created a silent film to teach people how to dial. In 1952, the Asbestos-Cement Products Association released According to Plan: The Story of Modern Sidewalls for the Homes of

WHAT ARE ARCHIVAL MATERIALS?

America. This film, one of many related to the industries that contributed to the rise of American suburbs in the 1940s and 1950s, celebrates the durability and safety of asbestos for use in roofing and siding. Many films purportedly created for educational use (and distributed to schools for 16mm projection) were, in fact, advertising for featured products. An educational film about menstruation, for example, prominently featured the Modess brand. (The film was one of several used by filmmakers Jennifer Frame and Jay Rosenblatt [see Chapter 8] for their 1996 documentary, Period Piece.)

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From the 1953 film Molly Grows Up, used in Period Piece.

Television News and Documentary The lineage of television dates back to 1909 or earlier, with the first electronic transmission of images occurring in the 1920s. The production of television sets for a consumer market was delayed by the Second World War, but by the late 1950s, television ownership in much of the industrialized world was becoming commonplace and programming was developed to fill expanding hours of broadcast time. At first, some of television’s content migrated from theaters. In the aftermath of the war, for example, newsreels such as Movietone News and, for a time, All-American News found a secondary home on the airwaves. But by 1949, NBC was creating its own news program, which gave way to the nightly news broadcasts begun in the early 1960s. And in 1963, the networks achieved another milestone: the first

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24-hour live coverage, lasting three days, of the aftermath of President John F. Kennedy’s assassination. In the meantime, network news had begun a tradition of standalone and series documentaries, including NBC’s White Paper and CBS’s venerable CBS Reports. They would continue through the 1960s and 1970s and would provide in-depth coverage of issues and individuals that has proven to be a boon to filmmakers in the decades since.

Independent Field Production Also in the late 1950s and early 1960s, an important change occurred that impacted both the quality and style of television documentaries and the range of independent filmmaking in general. Film cameras light enough to be shoulder-mounted, coupled with crystal sync, which allowed synchronized picture and sound to be recorded wirelessly, gave rise to a new form of observational “fly on the wall” filmmaking. Known in Europe as cinéma vérité and in the United States either by the same name or as direct cinema, the style gained prominence through the work of Robert Drew, Richard Leacock, D.A. Pennebaker, Fred Wiseman, and Albert and David Maysles (and their co-directors, including Charlotte Zwerin, Ellen Hovde, Muffie Meyer, and Susan Froemke).

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Portable Video Technology In 1967, Sony introduced a portable video recorder and camera combination called the Portapak, which recorded from a shoulder-mounted camera to a 1/2 open-reel black-and-white video recorder. The combination of camera and video deck were heavy, recorded a fairly lowresolution black-and-white image on a medium that had little stability, and was difficult to edit. Still, the new technology gave rise to what was dubbed guerilla video, a new take on vérité production. The image quality was inferior to that of 16 mm film, which independents also used, but video had at least two notable advantages: It was immediate (the sound was already married to the image and there were none of the delays or costs involved with film processing or synching picture and sound), and it was decidedly cheaper than film. Video collectives emerged to create documentaries and/or video art with this new technology, and within a short period of time video makers began to receive mainstream recognition.

Video and Newsgathering As video technology continued to evolve, portable video recording became possible (using 3/4 color U-matic videocassettes). Television news

WHAT ARE ARCHIVAL MATERIALS?

directors attracted to video’s immediacy could now use it to create broadcast-quality, color images. Electronic news gathering, or ENG, was hyped to the public by the television news media beginning around 1974. For the networks, the changeover came just as the Vietnam War was ending in 1975; local stations’ news units changed over as they could, between the mid- and late 1970s. This changeover also coincided with the general movement of commercial networks away from in-depth coverage of news and current events in documentary form. In the United States, public television was, for a time, the primary source of long-form coverage, while commercial networks shifted their focus to news and entertainment “magazines,” following the lead of 60 Minutes, launched by CBS News in 1968 (and still on air).

Hidden Treasures

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With more than a century’s worth of audio and visual material of various kinds for you to draw from, this book can only begin to address how you can go about locating and acquiring the materials you need. In addition to the venues we previously spoke of, other potential sources include: ■ ■ ■ ■

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The private collections of individuals and their families; Collections of local historical societies, libraries, universities, and corporate archives; Regional or national associations and government archives; The holdings of special interest groups, such as professional and trade associations, scientific organizations, advertising agencies, police departments, unions, and the like; Cooperative and commercial online ventures such as Flickr and iStockphoto.

In the chapter that follows, we’ll offer some details to get you started.

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CHAPTER 3

Finding What You Need How do you make your way through the labyrinth of commercial archives, online images, and databases of stills and motion picture footage? How do you take advantage of known search strategies and techniques, and at the same time discover material that’s fresh and can make your film unique? In this chapter we offer some basic information about how and where to start looking, either as a first step in doing your own research or in preparation for your work with a professional. (Please also see the book’s website for a more detailed list of resources.)

Finding Existing Films on Your Subject For many, if not most, filmmakers, a first step in visuals research is to ask, “What other films exist on this or a closely related topic?” This information can be useful for a couple of reasons. ■

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It prepares you to “pitch” your film to funding sources, distributors, and broadcasters who are likely to want to know why you believe there should be a new film on the topic and how your film will be different from what already exists. It allows you to consider third-party materials the other filmmakers have found and used—as research only. You can’t steal another filmmaker’s footage or creative use of that footage; an edited sequence is someone else’s creation, and you may not duplicate it. What you can do is watch the film and study the credits to see which archives were utilized.

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Apollo 11 liftoff, July 19, 1969. Collection of the U.S. National Aeronautics and Space Administration.

Searching Online There are various publications, online databases, and other types of resources that, while not comprehensive, can be helpful in discovering what films have been made about your subject. Do a general Internet search using any good search engine. In addition, there are a few likely places to look: ■

The online and printed catalogs of larger archival sources, such as the National Library of Medicine, the U.S. Library of Congress,

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the U.S. National Archives, and the Imperial War Museum in the United Kingdom. These may contain information about completed films as well as stills, clips, and other “raw” materials in their collections. It is important to remember that virtually no online catalog represents the complete holdings of an archive, and most catalogs, whether printed or online, offer only brief descriptions at best. Your online search is not complete until you’ve made contact with the archive. Subject databases, such as Art on Film Online (www.artfilm.org). These are created not for a specific archive but for a specific subject; in this case, “fine arts, architecture, photography, decorative arts, and related topics.” The NICEM Film & Video Finder (www.nicem.com). This is an audiovisual database created for reference purposes by the National Information Center for Educational Media. Its target audience is “librarians, media specialists, training directors, faculty, teachers, and researchers.” The British Universities Film & Video Council (www.bufvc.ac.uk/ databases/index.html). BUFVC offers links to a number of rich archives, including those with film, television, and radio holdings. The Internet Movie Database (www.imdb.com). This subscribergenerated database includes information about many documentary films and series. Take care using this site, as information is only partly vetted. Online movie rental services (such as Netflix.com, Intelliflix.com, Quickflix.com, and LOVEFiLM.com). These include both nonfiction and fiction films and can be searched by subject.

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Casting A Wide Net If you’re looking for a produced film or video on an obscure subject (or even just footage or stills), chances are that it exists and that someone can direct you to it. One way to find those individuals is by contacting professional groups whose members specialize in imagery, whether modern day or archival.

Archival Associations There are several large international groups specifically concerned with archival materials. These include the Association of Moving Image Archivists (AMIA); Fédération Internationale des Archives de Télévision/ International Federation of Television Archives (FIAT/IFTA); Federation of Commercial Audiovisual Libraries (FOCAL International); and

FINDING WHAT YOU NEED

The International Association for Media and History (IAMHIST). Most have listservs, many of which are available for posting by nonmembers, which means you can post queries. Generally, members of these organizations are eager to help.

Networks and Production Houses Search through the websites of the venues that produce archival programming. These include not only the programmers themselves (broadcast and cable networks worldwide, for example, who often list programs not only by title but also by subject) but also the production companies to whom they often outsource productions. Follow the trail to these companies, see what else they’ve done, and borrow or rent copies, if not from the companies themselves then from the library or an online DVD rental outfit.

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Distributors It’s also a good idea to spend some time exploring the websites or catalogs of distributors known for films in your general subject area. California Newsreel, Direct Cinema Ltd., New Day Films, PBS Home Video, and Women Make Movies are examples of U.S. distributors that specialize in independently produced documentaries. Some distributors specialize by subject area or genre, such as health or anthropological films. Reference Materials In addition to general reference information that you’ll find as you do book and article research on your subject (keep an eye out for references to media coverage), be sure to spend time looking through references about archival collections. See the bibliography (in Part 4 of the book and in expanded form online) for reference works, including: ■

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Footage, by Rick Gell, Rick Prelinger, and Elizabeth Scheines. A comprehensive list of archives around the world. Contact information is likely to have changed, but the book remains useful, especially for its 400 page subject index. A Scholar’s Guide to Washington D.C. Media Collections, by Bonnie G. Rowan and Cynthia J. Wood, and its companion, A Scholar’s Guide to Washington D.C. Audio Resources, by James R. Heintze. Special Collections in the Library of Congress, compiled by Annette Melville for the U.S. Library of Congress in 1980.

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Special Edition: A Guide to Network Television Documentary Series and Special News Reports, by Dan Einstein, a two-volume reference work.

Using Existing Films as a Research Tool If you succeed in finding already-produced films on your subject, especially high-quality ones, you may be tempted to simply use the thirdparty footage or stills you find in them. It would be very easy to make a “slop dub” of the material and cut it into your edit, figuring that you’ll work out the details later. Beyond the fact that you can’t lift edited sequences (they’re copyrighted), there are some serious problems with this approach: ■ ■

You or your editor may become attached to material you later can’t find, access, or afford. If you wait too long to determine the provenance (original source) of the material, you may not leave sufficient time to contact rights holders, obtain clean masters of your own, and license those materials.

Can you just ask the original producer where the footage is from? In truth, this rarely works. If you do find producers willing to help, expect to pay for their time and expertise. Understand, though, that even if a producer is willing to help, it’s possible that the files are in storage or lost. So, why go to the trouble of scouting out existing films? First, as described above, knowing what’s been produced helps to position your film as new, different, and necessary. Second, by looking at the archival sources listed in these film’s end credits, you’ve set yourself on course for starting your own original archival research.

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Using the Credits as a Research Starting Point Most archives require onscreen credit as part of their license agreement. Watching the completed film, you generally won’t be able to tell which shots came from which archive, but you’ll get a good sense of the pool of archives used by the filmmaker. Start there, and then think creatively about where else you might go to make your film even stronger. Remember that the filmmakers whose work you’re watching faced their own limitations of time, money, and expertise. Furthermore, while your subject area may be comparable to theirs, your focus may be quite different. And sometimes, as mentioned, footage used by other filmmakers is no longer available for licensing. It may have been lost, taken off the market, or (in the case of military footage) reclassified. Sometimes

FINDING WHAT YOU NEED

the ownership has changed repeatedly, and it’s difficult to determine whom to contact about licensing.

Hiring the Researcher(s) Named in the Credits If you see the name of an archival (or music) researcher in the credits of a film you admire, don’t hesitate to see if you might hire that researcher yourself. It’s not unusual for researchers to reuse their notes and logs from one project to benefit another, especially if the projects are separated by time or are not so identical in subject matter as to be competitors. A professional researcher’s notes from a career’s worth of projects are a tremendous asset to any producer. Don’t hire a researcher and ask him or her to identify and locate archival material in a film with which they had no involvement.

Using Existing Films as Archival Material 30

In the process of reviewing films relevant to your topic, you may come upon useful material either shot or owned by another filmmaker (as opposed to third-party materials licensed by that filmmaker). For example, in researching a film about the 1980s, you may come upon a vérité film shot in 1983 that includes material of interest. In this case, presuming the filmmaker has retained ownership of the work, you would license it directly from her. The filmmaker’s appearance and location releases usually cover a broad range of permissions, so hopefully they also allow your reuse of the material. But confirm this with the filmmaker before using anything, and request copies of the relevant releases, because you may be asked to provide them to insurers, distributors, or broadcasters. If the releases were not secured or were limited to the first filmmaker’s use only, you will need to get your own release.

Researching Visuals: The Basics Whether working on your own or with a researcher, and whether looking for completed films or shots and stills, there are a few basic steps that will make finding third-party materials more efficient and effective.

Be Organized Better to take time and care at the outset than to suffer the consequences of having been sloppy in documenting information, dates, and more.

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Make a Chronology It’s almost always a good idea to make a time line of the important events in your film, including not only the specific events that will be covered or shown but also others that may give context to your story. If, for example, you are making a film about your father, you might make a time line of all the major events in his life, being as exact as possible with dates. Add to that a time line of major events in his community, the nation, and the world. Add to that a time line of popular culture—hit songs and movies, for example. All of these may help spur your creative thinking about ways to tell your father’s story and about the archival materials upon which you might draw. In the case of a historical film, the necessity for a time line is obvious. Be detailed! Too often, filmmakers shortcut this important step, offering only vague entries (“1940s, World War; 1950s, Korea”) that are less than helpful as they refer to this chronology (and augment it) for months to come. The chronology is the basis for much of your archival as well as content research. Take the time to do it right. Also note: The fact that two events happened around the same time does not necessarily indicate cause and effect. Your awareness of both, however, enriches your possibilities for “setting the stage” for your story.

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Make a Wish List The time line becomes the basis from which you form a wish list; that is, a comprehensive list of archival material you wish to find. If you have specific, fact-checked dates as well as the correctly spelled names of places and individuals, it’s always easier for you, an archive, or a researcher to find coverage of that event. Don’t settle for a photo of your main character that was taken 40 years after your story takes place when a bit more research could turn up more timely images. If you search the proper dates and places and discover that, in fact, there is only one photograph of your main character during the time frame of your story, then you know what your limitations are and can take creative steps to address them. As explained in Chapter 7, the initial ordering process is designed to bring a variety of possible materials into the editing room in order to give the production team choices as they shape the story. Don’t make your wish list so specific that you close the door to creative options. In other words, your wish list might include something like this:

1999, January 19: Bill Clinton’s State of the Union Address Specific quote needed: “For the first time in three decades, the budget is balanced. From a deficit of $290 billion in 1992, we had a

FINDING WHAT YOU NEED

surplus of $70 billion last year and now we are on course for budget surpluses for the next 25 years.” But it should also suggest a broader search:

Everything showing Congressional statements about balancing the budget, especially during the Clinton administration (1993–2001), but also from Congress in the last 50 years.

Using Search Engines

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When searching databases, it’s important to understand how key words in searches work. Each search engine has its own peculiarities. Most offer a help screen that explains how to distinguish phrases from individual words and how to use Boolean operators, which help form a database query. For example, search engines usually recognize such Boolean operators as “and,” “or,” and “not.” Increasingly, they may have pull-down menus so you can select plain-English operators, such as “contains all words” (which is the Boolean AND), “contains any of these words” (the Boolean OR), and “contains the exact phrase.” Most will also automatically search for variations of the word you entered. Entering forest may bring up forests, forestation, and possibly foresting, deforesting, and reforesting, depending on the quality of the search engine.

Boolean Operators “Not” and “Near” The Boolean operator not can be useful, if available (check the site’s help page). For example, Kennedy not Robert will bring up all stories that have the word Kennedy (and probably Kennedys) in it but will eliminate the results that have the word Robert in them. Search strings often can be long: If you were to try to find stories about Ted Kennedy, you might enter “Ted Kennedy” “Edward Kennedy” “Senator Kennedy” and perhaps a date range (see the next section) so you don’t pull up “Senator Kennedy” records relating to Senator John F. Kennedy. No search is perfect, so try various combinations in multiple searches. Sometimes you can search within the results you find. In each case, you are likely to get different hits, and only by trying different words and combinations can you begin to feel like you have located everything.

Searching by Date Some of the better databases allow you to put in either a specific date or a range of dates along with your key word(s). For historical materials in particular, date searches and date range searches can be invaluable.

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Often it’s advisable to not search a specific date, however, but instead to create a date range starting a few days before you think the event took place and ending a few days after. You might have gotten the date slightly wrong in your time line, or very often a news story will be logged on the day after the event actually happened. Better search engines will allow you to sort the hits by date.

Pulling Images Off the Web In addition to browsing through the search engines and collections of recognized archival sources (public and private), it’s increasingly possible to find still and moving images in a range of authorized and nonauthorized sites online. It can be easy to “grab” nonauthorized or nonattributed materials for your own use, hoping to identify sources and clear them later as necessary. In general, don’t do it, for the same reasons that you shouldn’t simply dub material from other films in the hopes that you can identify and clear it later. It will take a ridiculous amount of time and effort to identify any materials for which there is no provenance, and using them can hold up your entire project. This is because until you’ve licensed material (or demonstrated that it is in the public domain or that your use of it is protected as fair use), you will likely not be able to show the film anywhere in public, including at film festivals. You might decide to risk uploading the film to YouTube or some other user-generated site and simply wait for someone to object to your use of their material (and at minimum, demand that you take it down). But why limit distribution of your work in this way?

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Legitimate Use of Images Found Online As we’ll discuss in later chapters, there is a substantial (and growing) amount of archival material put online by rights holders and intended for you to download, provided any necessary licensing and payment have been arranged. In these cases, the provenance is known and usually provided. Whatever you download from these sites, keep track of the URL and any other source information in detail. The complexity of these sites demands that you pay close attention not only to the web address but also to the collection name and an accession or identification number. In cases where a provider allows you to download “comp images” (often as QuickTime clips or low-resolution stills) for editing or reference purposes, it’s likely they’ve been rendered “unclean” for final use through the overlay of watermarks, timecode, and such. You may edit with this material but will have to contact the true rights holder to license the image and acquire a clean copy for your final edit.

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Rights-Managed and Royalty-Free Collections In Chapter 16, we describe the steps involved in licensing footage for use. In terms of finding this material, however, the type of license available may be indicative of where you might find material, and how expensive it’s likely to be.

Royalty-Free Material

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Don’t confuse royalty free with free; truly “free” images are those that are in the public domain or have been made available at no cost with the permission of the rights holder. When material is royalty free, you pay a flat fee regardless of how you use the material (for example, in which markets your work will be shown). Royalty-free material tends to be generic: aerials, cityscapes, beaches, dramatic weather footage, animals, time-lapse footage, stock shots of famous places, and other easily categorized images. These images may be lower in cost to use than other types of material. Numerous companies offer royalty-free images; either stills or motion picture or both. Some of the most useful include: Artbeats, Blue Sky, and iStockPhoto.com. Other companies, including Corbis, Getty Images, and National Geographic (to name a few) offer some royaltyfree images, but their rights-managed collections are the most useful.

Rights-Managed Material Rights-managed material tends to be more expensive than royalty free, in part because the license is more complex. Rights managed means that licenses are granted for a particular venue or venues, time period, and geographical area. There are some very useful rights-managed archives, however, whose collections are well worth exploring, including FootageBank and Oxford Scientific, as well as Corbis, Getty, and National Geographic.

Creative Commons The Creative Commons is a nonprofit organization that offers a flexible alternative to copyright for creative artists seeking to use, share, and protect work (see Chapter 12). A number of sites offer Creative Commons images, including the photo-sharing website Flickr (www.flickr.com). Much of what’s on Flickr is not licensed in this way, but at the time of this writing, some 49 million images were. To find these, look for the CC logo (a Creative Commons notification) on an image, and then click through to see what specific conditions apply.

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Commercial Still and Footage Archives Most archives now have online databases. While this may seem like a tremendous boon to producers and researchers, it can also be problematic because increasingly, the option to research commercial archives on site is disappearing. For the major commercial archives, footage is a commodity, and the process is most efficient when face-to-face and phone contact is kept to a minimum. This may suit the needs of commercial clients, such as advertisers, who often need little more than the short clips they can order, pay for, and download immediately. But the system works against the interests of many filmmakers, especially documentarians, who are likely to want as much material as they can get on a particular subject. Their search for new or unusual footage, and for sufficient coverage to tell a complete story visually (rather than narrate over fairly random shots), is rarely satisfied by extremely short clips or narrow key word searches. For example, a documentary filmmaker won’t be interested in 15 seconds of “Jacques Chirac walks down a hallway” and instead may want to see an entire speech Chirac made on a particular date, along with audience cutaways and ambient sound. So while the online clip may offer a hint as to what’s in the archive’s holdings, you’ll need to contact the archive to learn more. Some archives, such as BBC Motion Gallery, encourage this contact; others do not.

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Pros and Cons of Commercial Archives Unfortunately, even if you can visit the archive, the Internet-based business model is not dependent on the employment of skilled, long-term archivists who know a collection inside out. More often, the person responsible for serving you will take your wish list, turn it into some key words and come out with a collection of clips that may or may not be useful to you. You may want the Brooklyn Bridge, but if the on-staff researcher isn’t paying attention, you may also get dental bridges, the Brooklyn Dodgers, or the actor Beau Bridges. That’s not to say these places should be dismissed. Buried in those screeners could easily be exactly the footage you need, and commercial archives can usually provide screeners quickly and with a minimum amount of up-front money. Many film researchers will contact Getty and Corbis (the two largest and most important general-purpose archives) to see what they might have and to get some screeners to show to producers right away, while more in-depth searching continues. In addition, most commercial archives contain a mix of materials. Some will be of high quality and unique (royalty free as well as rights managed); some of it may also be in the public domain, available

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quickly through the archive (for a price) but also available at lower cost, but generally over a longer time line, through a public institution such as the National Archives.

Networks and News Agencies While they don’t compare in size to archival giants like Corbis or Getty, networks and news agencies do sell their footage on a commercial basis. Some groups represent only their own collections; others offer a basket of holdings that they’ve acquired or represent.

U.S. Television Networks

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While ABC’s television news collection does not have significant holdings before 1963, the collections of CBS and NBC do. ABC News footage is handled by ABC News VideoSource, an organization within ABC (now the Disney-ABC Television Group). CBS News is currently represented by the BBC Motion Gallery, so if you want news footage from either CBS or the BBC (or numerous other collections they hold), contact the BBC offices in New York, North Hollywood, or London, depending on where you are. NBC News Archives sells its footage themselves. (Contact information for these resources can be found on the book’s website.)

The Vanderbilt Television News Archive Since August 1968, Vanderbilt University in Tennessee has been taping every network evening news broadcast on all three major American networks and has cataloged every news story (and even every commercial) in its archive. In 1995, they added some CNN programming, and in 2004 added content from Fox News. Vanderbilt makes screener tapes of these broadcasts available for research use only. The tapes include a burn-in of the network name and the date and time of the broadcast. They are a tremendous resource, allowing you to see whether and how a story was covered as a step toward acquiring materials directly from the copyright owner. Network news archivists may roll their eyes when you refer to a Vanderbilt tape when requesting a story. The issue is that air checks (copies of a show exactly as it aired, often taped off air) can be problematic because the master tape for that evening’s news may have been recycled or destroyed. (This was especially true in the earlier days of videotape.) Furthermore, networks may index programs differently than Vanderbilt does: by individual story subject matter and/or event date, for example, rather than by program name or air date. If they are able

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to locate the material, you may encounter an additional complication, because using a clip that features a news anchorperson or reporter often involves special permission (whether for the use of voice or likeness or both). Often, you must justify the necessity of the use; some networks, like NBC, will charge you up to double the normal license fee for any seconds you use of one of their personnel. Clips from news magazine shows like Dateline NBC and ABC 20/20, and long-form documentary specials like CBS Reports, may also require special permission.

Non-U.S. News Archives Arguably the most comprehensive source of European and Australian news material is ITN Source, a merger of two large European news services, ITN and Reuters. Together they collect news from some 150 countries. In addition, many non-U.S. news organizations are represented by them, such as Nine News in Australia, which has covered events since 1933, and the British Visnews collection. Sports, wildlife, and newsreel collections from Europe are also available through ITN Source. Internet searches may serve as a preliminary approach, although hiring a professional researcher in the relevant country or working with the individual archive’s staff may be preferable.

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Hollywood Studio Stock Libraries The stock libraries of various Hollywood studios can be especially useful if you are producing in 35 mm or on HD, and require film originals (see Chapter 7). At these libraries, you can find almost anything in black-and-white or color: contemporary or older “beauty shots,” such as 35 mm flyovers of cities, which are hard to find elsewhere; specialty shots useful for cutaways (antique trains and cars, for example, traveling past a camera); or even material for establishing shots and “greenscreening,” such as eye-level street scenes from various places and eras. Increasingly, these libraries are making representation deals with the larger commercial stock houses, such as Getty, which currently handles the collections of Universal and Warner Bros.

U.S. Public Archives In the United States, materials held in U.S. government collections are often in the public domain, in which case no use licenses are needed. Some of the most important sources of this material are located in or near Washington, the nation’s capitol. These include the U.S. Library of

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Congress (LC), the Smithsonian Institution, and most importantly, the U.S. National Archives and Records Administration (NARA).

U.S. National Archives and Records Administration

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“Of all documents and materials created in the course of business conducted by the United States Federal government, only 1%–3% are so important for legal or historical reasons that they are kept by us forever,” reports the website for the National Archives (www.nara.gov). Yet this small fraction of the total materials represents millions of print and audiovisual materials. “In Washington alone these records total more than six billion pieces of paper and over 13 million still pictures; 365,000 reels of motion pictures and 345,000 sound and video recordings; 3 million maps and charts; 4 million architectural and engineering plans; and 27 million aerial photographs,” according to NARA. NARA’s primary repository for audiovisual materials is in College Park, Maryland, but there are branches around the country, including the American presidential libraries. If you are researching long distance, you can take advantage of the Archival Research Catalog (ARC), the web-based digital catalog and search engine, but note that it reflects only about 56 percent (as of the end of 2007) of NARA’s holdings; more records are added regularly. Furthermore, ARC is currently missing parts of some key collections, which means that you may believe you’ve searched a collection and come up with nothing, when in fact you’ve only searched a fraction of that collection.

Viewing NARA Materials Relatively few items at NARA (roughly 127,000 images, mostly stills) have been digitized for actual online viewing or downloading. For these reasons, and because of how complex and specialized the subcollections are, it often makes sense to hire a professional researcher who knows the archive well. For information on obtaining copies of material found at the Archives, see Chapter 7. NARA Highlights: Moving Image Collections The National Archives is not a stock footage house. Rather, it’s a place where the government stores its records; therefore, preservation is a primary concern, and collections are broken down by Record Group. For example, Record Group 85 (RG 85) contains the audiovisual collection of the Immigration and Naturalization Service, while RG 225 contains material from the National Aeronautics and Space Administration (NASA). Donations to the Archives by nonfederal agencies are placed in Record Group 200 (the so-called “gift collection”) and then broken

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down by subcollection. The following collections are part of RG 200, except where otherwise indicated. ■

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The Universal News Collection. While every Hollywood studio had its newsreel, only Universal gave its entire run (1929–1967) and outtakes to the American people; all other newsreels must be obtained from commercial sources. The Universal News collection includes some 150,000 titles, and each complete newsreel presents roughly seven or eight stories that last about a minute each. NARA holds most volumes and issues, with the exception of some (from the World War II years and some early soundtracks) that were destroyed in a fire. Note that the outtakes are often as useful, if not more useful, than the newsreels themselves. The March of Time outtakes. The newsreels (1935–1951) are under copyright, but most of the outtakes are in the public domain and available from the National Archives. While March of Time provides interesting social and political history, these newsreels also include content that was manipulated and even faked. Two good books about the history of newsreels, both by Raymond Fielding, can be found in the bibliography. The Ford Film Collection. A collection of about 5000 mostly short films, created by automaker Henry Ford between 1915 and 1956. The collection documents his family life, the inner workings of his factories, and travel, especially through Central and South America. It also depicts other industries, such as textiles, milling, and agriculture, especially in the 1910s and 1920s. The Harmon Foundation Collection. This nonprofit personal foundation was in existence between 1922 and 1967, created to recognize and document African-American achievement in the arts, business, education, and other ventures. Military Collections. An extensive range of materials from the various branches of the U.S. military. Major military collections include: U.S. Signal Corps material (RG 111:1860–1982), covering the U.S. Army’s activities; the Navy collection (RG 428:1940s– 1989); the U.S. Air Force material (RG 342:1900–1985 with some later footage); and the Marine Corps material (RG 127), which includes paperwork dating back to their founding in 1775.

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NARA Public Domain Materials on DVD Recently, the National Archives teamed up with Amazon.com and CreateSpace (formerly CustomFlix) to release home DVDs containing various newsreel runs and other public domain materials from its

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collection. Already available on Amazon are several volumes covering the Universal newsreel collection between 1957 and 1962, the complete run of United News and The Big Picture (both U.S. military newsreels from the WWII era), interviews with newsmakers from the Longines Chronoscope series (1951–1955), some NASA material, and various other holdings. You may use these DVDs for your film or video project if the technical quality suits your needs, because all of the material on these DVDs is in the public domain.

NARA Highlights: Stills Collections The National Archives maintains approximately six million photographs, negatives, lantern slides (which predate 35 mm slides), posters, other fine art, portraits, contemporary slides, and aerial photographs from over 170 departments of the government. ■

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The Army Air Force record groups (1903–1964). Includes photographs taken by famed photographer Edward Steichen; also images of the African-American pilots from Tuskegee University (the Tuskegee Airmen). The Civilian Conservation Corps Collection photographs (1933– 1942). These show the work of the CCC, a program that put people to work doing rural reclamation, reforesting, and restoring historic buildings and sites. The Works Project/Progress Administration collection (1922– 1944). Includes photographs and artifacts from the WPA and related organizations pertaining to construction projects, conservation activities, health and sanitation efforts; art (including the Federal Art Project), music, theater (including Federal Theatre Project posters and other visuals); infrastructure work, such as the construction of airports, bridges, and roads; and photographs collected for use in the state guidebooks created by the Federal Writers Project. The WPA record group, 69, is one of the most accessed sections of the National Archives.

NARA Highlights: Sound Collections The National Archives sound collections include radio broadcasts, speeches, interviews, actuality sound, documentaries, oral histories, and public information programs from a range of sources, both public and private. The earliest recording is from 1896; most recordings were made between 1935 and the present, with a strong emphasis on the World War II era. Highlights include: ■

National Public Radio Catalog. Includes NPR news and public affairs broadcasts, 1971–1978.

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Milo Ryan Phonoarchive Collection. Includes approximately 5000 donated recordings, primarily of CBS-KIRO (Seattle) radio broadcasts from 1931 to 1977, with a focus on news and public affairs. World War II War Crimes Records. Provides thousands of recordings from the International Military Tribunal at Nuremberg, Germany; the most prominent are the testimonies of Nazi defendants and witnesses to the Holocaust. (Another record group, 226, relates to the Office of Strategic Services [OSS], the predecessor to the Central Intelligence Agency. These include radio recordings designed for broadcast in Germany, Japan, and the United States and include American songs sung in German by Marlene Dietrich and a speech that was to be broadcast in Germany if an attempt to assassinate Hitler succeeded.) The ABC News Radio Collection. Includes 27,000 broadcasts from ABC News Radio consisting of programs from 1943 to 1971. Note that these items may not be in the public domain. NASA Audio Collection Catalog. Includes some 1400 NASA sound recordings (1952–1975), including live communications between astronauts and mission control, public affairs programs, press conferences, speeches, and mission highlights. Supreme Court Oral Argument Collection. Includes about 5000 sound recordings of oral arguments presented before the U.S. Supreme Court (1955–1978); copies of these are available to the public.

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Impressed? NARA is arguably the best and most accessible source of moving images, still pictures, and sound recordings in the world. As mentioned, much of it is in the public domain, either because it was created by the U.S. government with tax dollars or because it was donated to the American people without restrictions. Not everything at the Archives (especially in the gift Record Group 200), is rights free, but a vast majority of the most important materials are.

U.S. Library of Congress As its name implies, the U.S. Library of Congress (www.loc.gov) “is the nation’s oldest federal cultural institution and serves as the research arm of Congress,” according to the official website. “It is also the largest library in the world” with more than 130 million items. These include “29 million cataloged books and other print materials in 460 languages; more than 58 million manuscripts; the largest rare book collection in North America; and the world’s largest collection of stills, films, maps, sheet music, and

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sound recordings.” In fact, the collections include everything ever created in the United States that is or was registered for copyright protection. Unlike the holdings of the National Archives, much of what’s housed at the Library of Congress is protected by copyright, and the Library of Congress is not authorized to grant rights to these materials. However, its collections are invaluable for research, and some important items here are in the public domain. As was the case with our description of the National Archives, any attempt to represent the vast holdings of the Library of Congress within a single chapter is impossible.

LC Highlights: Motion Picture Collection Moving image collections particularly accessible to filmmakers include: ■

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The Paper Print Collection. Between 1894 and 1915, about 3000 films were submitted for U.S. copyright protection by filmmakers, including Thomas Edison and D.W. Griffith (in the United States) and Georges Méliès (in France). Because there was no established format on which to submit films for copyright registration prior to 1912, filmmakers used long, photo-sensitive rolls; each film frame printed through to this “paper print” roll. In the 1950s, archivist Kemp Niver directed a project that put these rolls on a copy stand and rephotographed them, frame by frame, onto motion picture film. The paper print collection is rich with reality images (about 1300), such as troops leaving for the SpanishAmerican War, images of the aftermath of the 1906 San Francisco earthquake, and footage of various celebrities and political figures. The other 1700 or so films in the collection are among the earliest fiction films. The Meet the Press Collection. Includes almost 2000 episodes of this influential Sunday morning news show, which has aired on NBC since 1949 (they are housed with the papers of the show’s creator, Lawrence Spivak). Additional, more recent episodes are available directly from NBC News. The George Kleine Collection. This is the private collection (including films and papers) of Kleine (1864–1931), a film industry pioneer. The collection includes a variety of fiction and nonfiction films, including some of the earliest foreign films, produced before 1926, to make their way to the United States. Confiscated Enemy Films. This is a collection of works confiscated from Germany, Italy, and Japan during WWII. The German collection includes the newsreel Die Deutsche Wochenschau; missing

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issues in the run can be found in other archives in Germany and the United Kingdom. The Italian collection includes Instituto Luce newsreels (1938–1943). The Japanese collection includes three newsreels: Asahi News (1935–1939), Nippon News (1940–1945), and Yomiura News (1936–1940). Copyright to all captured material has been returned to the originating countries, although prints remain on deposit at the Library.

LC Highlights: Stills Collections Many of the millions of still photographs and artwork at the Library of Congress are in the public domain, and increasingly, low- and high-resolution digital images of them can be found on the LC online database and downloaded. In fact, one of the best places to start exploring the Library’s stills collections is at its American Memory website, http://rs6.loc.gov/ammem/index.html. Then, because digitization of stills is far from complete, you or a researcher should visit the Library in person to complete your research. Highlights include: ■

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The Farm Security Administration/Office of War Information Collection. This is probably the most famous photographic collection at the LC. The FSA’s holdings represent roughly 250,000 photographs made between 1935 and 1942; the Office of War Information covers the 1940s. The FSA and OWI had an overlap of subject matter. The photographers represented in the two collections include Walker Evans, Dorothea Lange, Jack Delano, Marion Post Wolcott, Ben Shahn, and Russell Lee (whose July 1941 color photograph of downtown Cascade, Idaho, is on the cover of this book). Many people are surprised to learn that many FSA/OWI photos (including the cover image) were shot in color on early Kodachrome film. The Detroit Publishing Company Collection. This features roughly 40,000 scenic postcards and photographs created between 1880 and 1924, mostly in the United States but also in Mexico, Europe, and Asia. The Arnold Genthe Collection. Genthe (1869–1942) emigrated to the United States from Germany in 1895, settling in San Francisco. The collection is extensive (some 19,000 images) and includes photographs of the residents of San Francisco’s Chinatown before the 1906 earthquake, and of the quake’s aftermath. The Civil War Photograph Collection. Includes photographs taken by or on behalf of Matthew Brady, or acquired by him.

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The African-American History Collection. This includes material (1909–1940) from the National Association for the Advancement of Colored People (NAACP), such as the NAACP campaigns against lynching and portraits of famous African Americans. A subcollection, the W.E.B. DuBois albums, offer a glimpse of African-American life around 1900. The Edward S. Curtis Collection. Includes materials from Curtis’s 20-volume The North American Indian, issued between 1907 and 1930, in which life among some 80 Native American tribes was documented. The collection includes over 1600 prints. The Frances Benjamin Johnston Collection. A pioneering American photographer, Johnston (1864–1952) photographed American social, political, and educational life, including classes at the Hampton Institute and the Tuskegee Institute. The collection includes about 20,000 prints and 3700 glass and film negatives.

The Library of Congress also houses the collections of various news agencies, newspapers, and magazines. These include some five million photographs from the collection of Look magazine (1937–1951), including photographs by Stanley Kubrick and Gordon Parks. The collection is in the public domain, although images may not be used for “advertising or trade purposes.” The Library also has collections from various newspaper morgues, wire services, and other news agencies, dating between the 1890s and the late 1960s.

LC Highlights: Sound Collections The sound collections of the Library can be broken down into two distinct categories: radio broadcasts and everything else. The radio broadcast division includes donated and deposited material from a wide variety of sources, including: ■

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Armed Forces Radio, with a third of a million recordings covering Armed Forces Radio and Television Service (AFRTS) domestic broadcasts from the mid-1940s to the present. These include music and talk but are generally not news oriented. Donated broadcasts from radio stations WOR (New York), CBS Radio, WRC (Washington), as well as from the BBC (from about 1900 to the 1980s), and National Public Radio (NPR) from 1973, two years after it began. Broadcasts from Germany during the Third Reich, a companion to the captured German footage collection. Speeches and other audio are included.

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The collections of general sound recordings include: ■

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Speeches by prominent politicians, entertainers, scientists, and others who appeared before the National Press Club from 1952 on. The Archive of Recorded Poetry and Literature, from a series of readings given at the Library between the 1940s and the present. An oral history project conducted by the Marine Corps with soldiers returning from the Pacific in the latter days of the Second World War. A collection donated by anthropologist Margaret Mead, which includes field recordings and lectures. The Vitaphone (and other synchronous disk) collection, which includes soundtrack disks from some of the earliest American “talkies.” In the earliest days of sound films, the disks were played in the projection booth and synchronized with the projector to provide simultaneous sound and picture.

LC Highlights: Newspaper and Magazine Collections The Library of Congress carries an important collection of newspapers and news magazines (including some foreign publications). The collection starts in 1760 and continues to the present. For historical filmmakers, among the most useful publications are Harper’s Weekly and (Frank) Leslie’s Illustrated (Newspaper), both of which offered nonphotographic news illustrations—sometimes factual, sometimes fanciful—in the years before 1880.

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LC Highlights: The American Folklife Center The American Folklife Center at the Library of Congress has been tapped by filmmakers and researchers since its inception in 1976. (It should not be confused with the Smithsonian Institution’s Center for Folklife Programs and Cultural Heritage, which includes the Folkways Recordings.) The LC collection is thin on moving image holdings; these mainly include concert performances and ethnographic films. But it holds roughly 250,000 still images from fieldwork in various rural areas of the United States. The crown jewel of the American Folklife collection is its recorded sound material—more than 49,000 hours of audio recordings, from the first ethnographic cylinder recording in 1890 to the present. It includes spoken word (in various dialects and languages), recorded music, oral histories, and what has come to be known as “roots music.” It’s here that you’ll find the field recordings of John and Alan Lomax and other

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collectors. There are also recordings of slave narratives and music performance collections featuring Jelly Roll Morton and Woody Guthrie.

Other Routes to NARA and LC Materials Finding and ordering materials from NARA and LC, which are both large government institutions, can take time. Some of the public domain material held at NARA and LC can also be found at commercial archives; for clients with more money than time, ordering from these commercial venues may make sense. In addition, if you just need a shot or two, the commercial route may prove to be less expensive because the government archives require that you duplicate entire rolls of their masters. (In other words, what you spend in licensing costs at commercial archives, albeit unnecessary if the material is in the public domain, may be offset by what you save in duplication costs.)

Working with Intermediaries

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Filmmakers who don’t have the budgets to go through commercial archives but are also concerned about working directly at NARA or LC because of location, budget, or other constraints sometimes have a third option, especially if they are working on video. Companies have begun to emerge that serve as “intermediaries” between the government institutions and independents who need easier access. They offer a limited amount of public domain material to which they hold reproduction masters; it can be ordered directly through them, often at relatively low cost. This is entirely legal; the only drawback is that these interim companies represent only a fraction of what’s available. Among these companies: ■

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Footage Farm (www.footagefarm.com), which has both NARA and LC footage in their collection, in addition to some unique Soviet films, old Christian films, and public domain educational films from the 1930s to the 1970s. North Wind Picture Archives (www.northwindpictures.com), which offers a collection of more than 500,000 public domain (still) images drawn from the LC collection of 19th and early 20th century images of life in Europe and the United States, including prephotographic images from magazines and newspapers.

Diverse Other Collections One of the more challenging and enjoyable parts of film research is the sleuthing, as you try, with or without a professional guiding you,

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to uncover new and underutilized sources for material. These finds, in turn, often take you and your film in unexpected directions.

Personal and Local Collections Throughout research and production, ask people about their personal collections of artifacts, photos, and memorabilia. Scour books for photographs and graphics. Look for the credit line on any items you find because you will likely need to go back to the original sources to get higher-quality reproductions and perhaps pay a license for use.

Home Movies Home movies are available from many individuals and from a variety of archives, including commercial collections such as Getty Images, online archives such as the Internet Archive, and regional collections such as Northeast Historic Film in Maine (which also holds the collections of many New England television stations). Ask at libraries or historical societies about home movies, and you may be referred to local collectors or individuals. You might also consider placing an ad in a local newspaper (or post on relevant listservs) seeking material. Explain your project, who you are, and what exactly you’re seeking. If you speak to the advertising manager of the paper and explain that the project is educational or not-for-profit (if that’s the case), you may be able to get a discount on the ad. If it’s a local story, you may even get a feature writer to do an article about your project—free publicity! If so, make your pitch asking for home movies, snapshots, and other materials.

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Local Television News It can be very difficult to obtain news footage directly from local television stations. Always approach the news director first, not the station manager; research his or her name ahead of time, so that you can establish a direct, professional contact the first time out. Stations are not set up to provide footage to outsiders and rarely have the time or personnel to conduct research, make dubs, or develop license agreements. Often, they simply have not held on to old footage, in which case it can be a good idea to ask the news staff if there are other local places to look for it. (Sometimes you’ll be referred to a collection of their older news film at a local public library, university, or historical society, or even to the network they are affiliated with.) If they do have footage, there’s another potential obstacle: Station lawyers may fear litigation

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from people captured in news footage (where releases may not be needed) if it is reused in ways that the station can’t control. But don’t give up. If you think there may be legal concerns, review both your project’s releases and your producer’s errors and omissions liability policy (see Chapter 11). Standard releases generally indemnify stations and place the legal burden for proper use on the filmmaker (backed up, if necessary, by your insurance policy). This may help to reassure the news director.

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Most cities and even many small towns have a historical society, museum, and/or library that may prove to be a source of valuable material. Most universities also have special collections, housed not only in libraries but also sometimes within departments or programs. Many of these archives now have websites; some may have online finding aids. In these places, as in others, you are likely to find that someone must also conduct research onsite. If you or a team member can’t do this work, ask the library or historical society personnel if they would do the research for you, and what they would charge. When you’ve made selections, often from physical prints or reels of film or tape, you’ll pay lab fees so that the image can be reproduced for editing (see Chapter 7). Depending on the copyright status of the images, some archivists may allow you to scan onsite if you bring your own scanner, or rephotograph prints with your own camera to create rough reference images, as long as you come back to them for master copies and licensing. It’s a good idea, when making rough copies with a digital camera, to include a slate in the shot that indicates the library accession number or other identifier. This can be as simple as a scrap of paper with the information handwritten on it. See our online resources list for information about important collections held at the Chicago Historical Society, the Miami-Dade Public Library, San Francisco State University, the University of Texas/Austin, and elsewhere. Individuals and organizations, both well known and obscure, will often donate their papers (and, increasingly, audiovisual materials) for archiving. Also note that reviewing obituaries of characters in your film can prove surprisingly useful in steering you to specific collections, which, even if only paper, may include letters or diaries that can enrich narration and voice-over. Journalist Edward R. Murrow’s papers and audiovisual materials were donated to the Fletcher School of Law and Diplomacy at Tufts University, for example. And the best collection of antique maps in the United States is at the incredible Newberry Library in Chicago.

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Political Commercials The best single source of U.S. political commercials is the Julian Kanter Political Commercial Archive at the University of Oklahoma. See www.ou.edu/pccenter/aboutthearchive.htm for details, and follow links to search the catalog or view QuickTime clips. Also, at the “living room candidate” site at the Museum of the Moving Image (http:// livingroomcandidate.movingimage.us/index.php), you can watch entire television commercial packages for U.S. presidential campaigns from 1952 to the present. Some of these political commercials may require permission if you are not using them in a way that qualifies as fair use.

Photojournalism: Agencies and Newspapers Good photojournalism can be history changing and iconic, and sometimes the line blurs between photojournalism and museum-quality art, as evidenced by the work of photographers including Henri CartierBresson, W. Eugene Smith, and Sebastião Salgado. Even Ansel Adams, thought of as a landscape photographer, was also a photojournalist; his images of Japanese internment camps during World War II are both beautiful and moving. Many filmmakers have discovered that the use of powerful still images, alone or in a sequence, can be extraordinarily effective even when moving image also exists. Filmmakers can run audio over such a sequence or mix motion and stills, as was done to great effect in the PBS American Masters episode, W. Eugene Smith: Photography Made Difficult. Many photojournalists are (and were) members of agencies such as Magnum or Black Star, or worked for wire services like the Associated Press or what was formerly UPI (now owned by Corbis), GammaLiaison (now represented by Getty), Agence France-Press (the world’s oldest continuing photo agency), and others. Consult these photographic agencies and their websites for stills that provide eloquent alternatives to moving image. In addition to agencies, many newspapers and magazines have photo morgues, so be sure to investigate those.

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Corporate and Industrial Collections If your subject was involved with a company, or of course is a company, it behooves you to check the company archives. Among the corporate collections that merit research are those at the Wells Fargo Company, which has an extensive photographic collection and nine branch museums. Corporate collections can also be the source of historical television advertising—you should contact the company that made the product, talk to their publicity department, and see if they can help get

FINDING WHAT YOU NEED

you materials and/or permission for old television commercials. Note that television commercials produced after the 1950s may be subject to additional clearances. Depending on your project’s needs, you should also explore the archives of national or international industry groups related to your subject’s profession. Look online to find a specialized magazine catering to the industry you are exploring, and consider contacting the magazine or the industry group itself.

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CHAPTER 4

Should You Hire a Professional? As many of you already know, finding, using, and negotiating archival materials can be very complicated. Depending on how much material you need to use, what the source of that material is, and what use you plan to make of it, you may want to seek professional assistance. (A quick scan of the credits of recent award-winning films will reveal that many filmmakers use archival specialists.) There is a range of experts available whose knowledge of stills, footage, archival sound, and music can enrich your film and streamline the research and licensing process. This chapter offers advice for how to get the most out of your work with these professionals, especially visuals researchers, and strategies that should prove to be useful even if you take on some or all of this work yourself.

Do You Need Help? If you’re doing a film that relies heavily on archival materials, and/or depends on the use of commercially recorded music (especially involving a popular recording artist), and/or depends on access to theatrical or television material owned by a major studio, chances are you should hire a professional. It’s more than likely that the costs involved, provided you find someone with relevant experience, will be offset by the quality and even affordability of what’s found, not least because they are likely to be more effective than you when it comes to negotiations. In some cases, in particular when it comes to clearing music, a known specialist can mean the difference between a “yes” (or a disappointing but still useful “no”) and weeks, if not months, of unanswered phone messages. In both the film and music industries, busy executives are notorious for ignoring calls from filmmakers they don’t know. “You’re benefiting not

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only from the speed factor, because we cut through and get callbacks and emails returned, [but] also we just know where the good stuff is,” says Canadian researcher Elizabeth Klinck. Furthermore, she adds, a researcher is likely to know when a company is charging as much as $40 per second for material that is available rights free elsewhere, such as at the National Archives.

Can You Do It Alone?

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If you’re seeking a fairly small amount of material, or if it’s from local or familiar sources (people you know, historical societies, a local corporation), you don’t necessarily need a researcher. If you have some research and clearance experience and are comfortable doing it, by all means, keep going. If most of what you want can be acquired from a handful of places that have a track record of providing archival material, you probably don’t need help finding and ordering materials, and you may not need help negotiating rights (although you may want legal advice). Plenty of filmmakers have successfully negotiated permission to use material from radio and news programs, feature films, commercial advertising, and more. On the other hand, it still may be worth hiring a professional for a day or even a half day of consulting early on. The rate for visuals research and research consulting varies, but at present in the United States it hovers between about $300 and $600 per day, with $350 to $400 per day being the norm. A researcher can look over your plan for archival use as well as your budget, which might give you a competitive edge when you’re fundraising. (Proposal reviewers will notice if you’re promising material you likely can’t deliver within your budget or time frame.) The researcher can steer you toward the most promising archives and suggest sources you may not have considered. And a researcher contacted early will be able to keep your project in mind while working for other clients. Later, if you hire her (remember to include a researcher in the budget), you may find you’re already a step ahead.

Music Consultants While some visuals researchers are also well versed in music clearance issues, depending on your project’s needs you may want or need to hire a music specialist. They can help you license commercially recorded music or find your way through music libraries, which are a source of less expensive material. But music experts can also significantly enrich your film by guiding you toward music that serves as an additional

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story element. With historical films, for example, carefully selected music can place viewers in a bygone time and place. For example, for Abraham and Mary Lincoln: A House Divided, New York-based music supervisor Rena Kosersky provided recordings of music played on 19th century brass instruments and recommended a brass ensemble for oncamera performances. In addition, she says, “I discovered specific songs that the Lincolns loved, including the manuscript parts of a long forgotten Mary Lincoln Polka, which was originally performed by the Marine Band at her White House reception.” The Internet Movie Database describes a music supervisor as “A person who coordinates the work of the composer, the editor, and sound mixers. Alternately, a person who researches, obtains rights to, and supplies songs for a production.” While at times her work involves all of these pieces, the latter definition best describes Kosersky, who specializes in historical documentaries. As a music supervisor, she advocates strongly for historical accuracy for each piece of music that’s selected, feeling that the rules of journalistic integrity should apply to music as they do to visuals. Kosersky is able to help filmmakers find rare pieces of music that are held in both private and public collections. “I don’t go for the icons,” Kosersky explains. “There is so much marvelous music that isn’t heard anymore that was famous at one time.” The cost to work with a music specialist varies greatly, depending on the services needed and the experience of the consultant. Some may charge by the hour; others, if they’re primarily being asked to clear licenses, may charge per license. The actual cost per project will also vary depending on the amount of music needed and the complexity of the rights needed. As with visual researchers, your best approach is to talk with a specialist who’s been recommended to you in order to learn more about the services he or she offers, how this work might enhance your film, and, in the long run, save you money.

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Finding A Music or Visuals Consultant One of the most effective ways to find a skilled consultant is to look at the credits on films that are comparable in scope to the film you anticipate making. If an online search doesn’t lead you to the person directly, try to make contact through the film’s production company. In addition, some major archival sources, such as the National Archives, offer lists of researchers online. But be aware that these lists are rarely if ever vetted. There is no licensing or accreditation for this kind of work, which means that anybody can claim an ability to do it. Always get references from people with whom the individual has worked.

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Houdini and the Water Torture Cell, ca. 1913. From the U.S. Library of Congress/McManus-Young Collection.

When to Contact a Consultant Music and visuals experts agree that too often they’re called in at the last minute to find or negotiate for materials after a member of the production staff—often the most junior member—has hit a dead end. Not only does this make the consultant’s job more difficult because it means starting by untangling someone else’s work (or smoothing over strained relations between the staff member and rights holders), it also means that opportunities for archival content may have been missed. “In the perfect world, I would love to be in the beginning of a project, at least have a treatment of it, and understand what some of the music

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concepts might be,” says Rena Kosersky. “I can do a lot of research just to understand the era and the kind of music that is necessary for this project.” Usually, she says, she asks that filmmakers involve her at the latest by rough cut.

How Much Time Will You Need? It can be difficult, at the outset, for researchers to fully estimate the amount of time needed to find, preview, order, and clear footage or music. Those we spoke with say they do their best to offer a preliminary estimate and are willing to communicate with the filmmakers as interests and needs expand and contract. “Little things you can guess, but if it’s anything broader, I always say, ‘You tell me how many days, or maybe what I should do is spend three days, find what I can, make you viewing copies and then send [them] to you,’ ” says Washingtonbased researcher Bonnie Rowan. “And then I’ll make notes and I’ll say, ‘I didn’t get to this, I didn’t get to this, I think there’s a lot more here,’ that kind of thing.” Given that kind of information, a filmmaker can reevaluate his needs and budget and decide whether or not to request more. As noted, most visuals researchers charge a day rate while they’re researching on-site, but they may instead charge a per-hour rate if they are doing little bits and pieces of work, waiting for a phone call back from an archive or for a screener to arrive.

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Quality Research Often Demands More Time Producers who turn out documentary “product” on impossible schedules and budgets, often for commercial cable venues, may have to settle for whatever archival material is quickly available. “That sort of line production, their constraints in time and budget—it doesn’t allow for any sort of real investigation, for a professional researcher to get to the good material,” Washington researcher Kevin Green explains. But the problem of too-tight research schedules affects all productions, even higher budget ones. “Twenty years ago, I would get a call from my colleague who was a senior producer at NBC News, and he’d say, ‘We’re going to do an hour show on Korea (or whatever), and so I’ve got 12 weeks set aside for research,’ ” says researcher David Thaxton, also in the Washington area. “These days people will call and say, ‘I’ve got a couple of days,’ and what they expect you can find in two days is what would take, if it were thoroughly done, three to four weeks.” Having sufficient time to research can mean the difference between using material everyone’s already used or finding something groundbreaking. In the 1980s, David Thaxton was at the National Archives,

SHOULD YOU HIRE A PROFESSIONAL?

looking for footage related to a 1964 incident in Vietnam’s Gulf of Tonkin. (The Navy of North Vietnam allegedly fired on two U.S. ships near the Gulf while they were in international waters; the administration of U.S. President Lyndon Johnson cited these attacks to obtain Congressional approval for expanding the war. It was later revealed that the first attack may have been provoked by one of the U.S. ships and that the second incident never happened.) The subject index to the U.S. Navy collection had been discarded, and so Thaxton began to go through all of the cards chronologically. “I came across this group of 11 or 12 reels, and it was written on the card, ‘shot day for night,’ ” he says, meaning that they were filmed in the daylight, but filtered to appear as night. “I asked the Archives to make viewing prints of them. And when I looked at them, I thought, ‘My gosh, they have gone back and restaged the entire Tonkin Gulf incident to provide a record of which ship was where and when they started firing.’ Was it the truth? No, of course not. It was shot days later.” The time it took Thaxton to go through the catalog, order and wait for prints, and then watch them, proved to be worthwhile. 56

Incorporating the Researcher into the Creative Team At minimum, a researcher can serve as your eyes and ears at an archive and your guide as you find your way through the technical challenges of ordering materials. But skilled researchers also have the instincts of good filmmakers; in fact, many are filmmakers. They know how to select enough material to meet your editing needs, allowing you to use it to tell a compelling film story—if you give them the leeway to do so. In other words, don’t think of them as “order fillers,” following a narrow wish list of dates and events. Instead, work with them as a key part of the creative team. What makes someone a good archival researcher? “Curiosity, a knowledge of history, perseverance, and patience,” says David Thaxton. A good researcher wants to pursue something to the bitter end; when it seems that every stone has been turned over, that researcher will wake in the middle of the night thinking of something else to try. Researchers are attracted to the passion and commitment of the filmmakers for whom they work. They also want to become passionate about your subject and film and to know that their contribution will be valued; that they are true colleagues. Certainly, all researchers also take jobs they don’t care much about to pay the bills. But in general, they

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want to be inspired to go that extra mile. There are some ways in which you can help to make this possible, including the following:

Share the Treatment Unless you’re only looking for a few shots or clips, it can be a good idea to send the researcher a copy of your film’s outline or treatment (documents written prior to shooting that set out not only the film’s subject but also its story line and approach). This allows the researcher to evaluate the scope of the project and estimate the “specific weight” of archival needs, says Moscow researcher Alexander Kandaurov. It’s one thing to ask for “images of the victorious first weeks of the Nazi invasion into Russia in World War II,” explains Kandaurov. It’s quite another if the producer says, “I want you to find images showing the frustration of Russians, the bitterness, the grief, the will for revenge at any cost.” The latter, he said, “Is a challenge. I feel intrigued. My role is important. I feel I am a co-author and not merely a collector of images everybody knows from dozens of films.” By sharing the treatment, the producer is inviting the researcher to bring his or her own expertise and the memory of years of previous research and countless hours spent in archives to bear. “As you’re reading the treatment, you’ll think of things that you’ve seen and film that you can send that [the filmmaker] may not have even thought to ask for,” Michael Dolan, a Washington researcher, explains.

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Delegate Responsibility When you’ve hired a researcher, don’t independently cover the same territory. This may seem obvious, but it’s a problem that many researchers face. When producers “double up”—doing their own digging or, sometimes worse, their own negotiating while a consultant is doing the same thing on their behalf—it can be a “nightmare” and really hurt the project, says Lisa Savage, based in Sydney. “Our main job is to build up a relationship with the footage providers; get them on your side. You can’t do that if you’ve got 10 different cooks in the kitchen trying to do it as well.” This sharing also extends to Internet searching. Professionals do use the web, of course. For jobs that involve a quick turnaround, particularly those for commercial clients in need of the kind of material that’s easily available through commercial stock houses, a researcher may even search only online; in fact, most of these websites are designed with such clients in mind. But for documentary programs, especially

SHOULD YOU HIRE A PROFESSIONAL?

films being produced independently, researchers only begin with the online search. Whether or not you’ve done a preliminary online search yourself, part of delegating responsibility is allowing the researcher to do his own online searching; experience has shown them where and how to look, and how to interpret what they find. Even if you’ve already done some online searching yourself, understand that a researcher can and should do more than simply follow up on that work.

Know Your Subject Well The better you know not only the specifics of your story but also the context in which it takes place, and the better you communicate these details to your researcher(s), the more likely it is that you’ll find a range of materials that are useful. The specifics you provide can make a tremendous difference when archival content is not cataloged thoroughly or accurately.

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With visuals and with music, be aware that your odds of saving money go up when you know your subject well enough to recognize viable alternatives. It’s not unusual for a researcher to know that the cost to license this footage of a World War II event is expensive but that comparable footage of the same event is available rights free because it is in the U.S. public domain. Or, if your subject has already been wellcovered and audiences are already more than familiar with the same few clips that every project uses, a researcher may know of stills that have rarely been seen, giving you an opportunity to combine them into a powerful and unexpected photo montage. If you have your heart set on a song recorded by a specific artist but the record label is difficult to deal with, a researcher may know a work-around—an alternative route to get what you need. Sometimes another artist has done a cover of the song on another label. Sometimes there may be “outtakes” or alternative performances of the same recording that are owned by the artist instead of the label.

A Tradition of Advocacy An unsung role of archival researchers, for which filmmakers really owe them a debt, is that of advocating for access and usability at the archives. To explain: There is an inherent tension in many archives, particularly those that are noncommercial and instead house historic

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collections, between the demands of preservation and those of access and use. Preservationists are interested in protecting materials for the long term, and some view outside access as a threat. Filmmakers, on the other hand, need access, and they have archivists to thank for changes in some archives that have allowed them, for example, to bring in film equipment and make dubs to use in editing (prior to ordering higher-quality masters). Researchers have also fought for archives to remain open for longer hours and to keep their viewing equipment in good repair, and they continue to advocate for keeping public archives out of private hands. Bonnie Rowan was among those who fought for the right to make dubs of public domain material at the National Archives and Records Administration. “We screamed and yelled and went to Congress and went all over, and then they changed and said, ‘Yes, you’re right. We’ll let you do it.’ Then they took it away and we got it back. All of those things we do as freelancers in our unpaid time. We’ve discovered things that no one would ever know about, we have lobbied and spent a lot of time fighting to make the facility the way it is today,” she says. Researchers are also involved in intellectual property issues. In Canada, for example, Elizabeth Klinck is on the copyright revision committee of the Documentary Organization of Canada (www.docorg.ca/). “We’re really trying to bring in some new interpretations of Canadian copyright law,” she says, noting efforts to address “fair dealing” in Canada, a legal principle in the same spirit as fair use but usually more restrictive.

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Can You Afford to Hire an Expert? Even if your budget is low to nonexistent, don’t be too quick to dismiss the idea of using a professional research consultant, either for music or visuals. Depending on how much of these materials you’re hoping to use, professionals can often save you the cost of their fees and much more. They can: ■ ■ ■

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Help you accurately budget for archival materials; Warn you away from materials that are unavailable or likely to be budget-busters and steer you toward appropriate substitutions; Alert you if you’re being quoted commercial rates for material that is in the public domain and/or may be available for significantly less elsewhere; Help you discover new or unusual materials that make your film stand out from others on similar topics;

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■ ■

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Be your eyes and ears at distant archives, thus saving you travel expenses; Help you explore creative ways to use archival materials more effectively.

In other words, don’t not contact a researcher simply because your budget is limited. “The most satisfying work over the years in terms of archive research has been with independent documentary filmmakers,” says David Thaxton. “Whether they have a little money or more money, they are making a film because it’s something that is very important to those folks. And those are projects that we will bend over backwards to help.” His partner, Kevin Green, clarifies that primarily this refers to independents, as opposed to producers creating lower-budget work on behalf of commercial venues. “That sort of line production, their constraints in time and budget—it doesn’t allow for any sort of real investigation, for a professional researcher to get to the good material,” he explains. “With the independents, even if they’re small budgeted and all, hopefully they have a little more time. And they’re working on a subject that has become part of their life. And that’s a big distinction in my book, when perhaps it’s not a financially viable thing to be doing all the time. But we do it because the programs need to be seen.”

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CHAPTER 5

A Global Perspective: Conversations with Image Researchers 61

To help present the world of the professional archival researcher and some of the treasures to be found around the globe, we polled Alexander Kandaurov in Moscow; Elizabeth Klinck outside Toronto; Lisa Savage in Sydney; and Michael Dolan, Kevin Green, Polly Pettit, Bonnie Rowan, and David Thaxton in the Washington area.

Moscow Alexander Kandaurov Alexander Kandaurov is a freelance film and video researcher, coordinator, fixer, and location manager. He has conducted archival research on behalf of NHK, ABC, BBC, CNN, and others. His recent credits include Lost Worlds (Atlantic Productions), The Good German (Warner Bros., on which he worked with Kenn), Undercover History (National Geographic Television and Film), and Space Race (BBC Science). He and Kenn spoke via email in July and August 2007. Give me a quick rundown of the different audiovisual archives you work at around Moscow and what kinds of material they have in their holdings.

By far, when it comes to audiovisual libraries, the two largest collections in Russia are the Russian State Archives of Film and Photo Documents, in Krasnogorsk, and the Russian State Archives of Scientific and Technical Documents, in Moscow. The former offers all there is to be offered, embracing an amazingly wide scope of subjects ranging from 1890s to 1990s, both film and still photographs. The latter has a brilliant collection of film and photographs related to space exploration. There is also Gosfilmofond. This treasure trove stores all Soviet feature films and foreign newsreels and documentaries captured by the Soviet Army in World War II, including German, Chinese, Japanese, and many others. It is not very well equipped and absurdly expensive, but it attracts researchers looking for a particular Nazi newsreel or images of wartime Japan. And smaller archives? Smaller archives are focused on special fields, like space race, military weapons and equipment, nuclear energy, crime, rescue service, sports. What attracts a researcher to these small libraries is that there is much less bureaucracy and no waiting lines for viewing and dubbing footage. 62

What about broadcast footage? Major TV channels have archives of their own. You go there if you want some TV announcement or a TV report. However, they do not very much like doing it as this is not their main field and source of income. Very often you find out that some TV report or a collection of stories around one subject has been simply erased for need of raw stock. These archives are not cataloged very well. Do you work mostly with Russian producers within Russia, or foreign producers looking for material there? With only few exceptions, I work for U.S. and British producers. Some are realistic; some still believe, quite naïvely, that there is some secret storage in Krasnogorsk that Russians stubbornly hide from the rest of the world—and “What has to be done to find a key to that door?” That may be true for the Federal Security Service Archives, but this is a problem of access, not research. Some of the Krasnogorsk Archive can now be viewed online at www. abamedia.com/rao/rho/index.html through a partnership with the University of Texas at Austin. Can you talk about that? One thing is certain: They did a very good thing hiring Russian experts and, with reliance on American expertise too, creating the so-called

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“electronic catalog” and making it online. It has made it possible for a producer to do remote preliminary research of his subject. It has been a breakthrough for the Krasnogorsk Archives, like the one in the early 1990s when the Archives bought their first film-to-video equipment in The Netherlands. In the United States and many other countries, screeners are relatively cheap, and masters are provided when license fees are paid and agreements are signed. How does this process work in Moscow? Rates are not negotiable in state-run archives; the state-owned libraries have to stick to their official price lists; I remember only a couple of exceptions. License fees or royalties depend on the kind of rights you want to clear and vary depending on the time limit, media, and territory. Screeners are more expensive than they are in the West, but a high screener price is more than compensated for by comparatively low license fees. As Russian archives get richer and better equipped and able to offer a wider range of services to the clients, I am sure they will adopt Western standards of pricing, too. What do you say to filmmakers who refer to clips from an already-produced film?

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I say, “Yes, sir”—and then I grab the QuickTime image of the desired clip and go to the Krasnogorsk Catalog Room to show it either to Galina Kuzminskaya or Natasha Akulina. They may think for a moment and tell me the reel reference number. Or they may think for two moments and give me five film titles and suggest I [request] them from the vaults, to view and find the image I need. Or they may think for an hour and say they have no idea. This sentence is final. If they cannot identify it, none of the living can. The latter happens so seldom it is not even worth mentioning. What are some of your best stories about special discoveries you’ve made? One of the most amazing things about the Krasnogorsk Archives is that you may work there for years and yet run into something you never saw before. Once I was doing research for a “Stalin and Hitler” story by a British company. I was looking through a familiar and much overused box of Stalin catalog cards when I ran into a card describing several reels of “color rushes re Stalin funeral.” The rushes contained unedited raw color images of a variety of mourners at the coffin, starting with his children, Vassily and Svetlana.

A GLOBAL PERSPECTIVE

What about footage you know should be there, but it’s not?

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Doing The Rape of Europa, a U.S. project on stolen art, I was reading a script for a film [in this context, a script means the catalog description of running footage on reels in the archive, not the filmmaker’s script] showing Soviet officers in Germany in 1945 or 1946, the so-called “art trophy task force.” According to the script, there were images of “Russian officers looking at the Dresden Gallery paintings in a cave,” which was exactly what I was looking for. Imagine my frustration when, viewing the positive, I found out that these very images were missing. I looked at the length of the film; it was several dozen meters shorter than indicated in the script. When was it cut short? I asked for the interpositive copy: same story. I went to extremes by asking for the negative—you know how libraries hate giving negatives to visitors— and viewed it on a film-to-video machine: same thing. The staff researcher who was helping me was as surprised as I was. The film should have been several dozen meters longer. The missing part was never found. It should be noted that in gulag times some films were reedited to eliminate the “enemies of the people” or to show Stalin where he was not present or was in the background only. Indeed, Russia used to be a country with the most unpredictable past, quite in the spirit of Orwell. In the decade since you began your work, have there been changes in Russia’s copyright laws that affect you? In a democracy, a law is a result of an agreement between the elected lawmaker and the citizens. Not so in the U.S.S.R. As a reaction to this, Russian people were not really motivated to show a lot of respect for the laws the state imposed on them. But, quoting Bob Dylan, times are a-changing. People make more money and wish to buy licensed software for their computers, licensed CDs, and DVDs. They come to realize that intellectual property should be respected just like any other property. It is a long process, though. No social change takes more time than a change in the nation’s mentality. It has been only fifteen years or so since Russia “returned to history.” Now we are catching up.

Sydney Lisa Savage Lisa Savage (www.lisasavage.tv) moved from advertising into television in 1990, and since 1995 has worked as a freelance film researcher for production companies and television networks worldwide. For the past

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decade, she has also managed the footage archive for Seven Network Australia, one of the country’s three major free-to-air television networks. She and Kenn spoke by telephone in September 2007. On what kinds of projects do you work? At the moment I’m working on a series of television commercials for Curtin University, which is a government-funded university. Their ad agency sourced a lot of images from Getty and general Google searches, and I had to clear the images. Another thing I’m working on is a series called Who Do You Think You Are?, which is based on the BBC series where they research Australian celebrities’ family trees. At the moment I’m trying to find 1920s Aboriginal footage and researching and clearing stills from the state archives databases. I’m also working on a film called Salute—The Movie. It’s a story of Peter Norman, who was the silver medalist in the 200-meter final in the 1968 Olympics, when Tommie Smith and John Carlos did the Black Power salute. So for that, I’ve had to find and source a lot of stuff from a whole range of footage, because they’re doing all the background leading up to that moment: the riots in Chicago, the Mexico City massacre, Paris student riots, all that.

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What are some of the archives that you deal with in Australia? Is there the kind of national government archive, like the U.S. National Archives? We don’t have as many as America, obviously. We’ve got NFSA, the National Film and Sound Archive. A lot of government departments have given them all their archival films for preservation purposes. Now, they’re an archive facility; they don’t own the copyright on the majority of their footage, they just store it, and they’ve got an online text-searchable [database]. If you see anything in there that you want, 99 percent of the time they don’t own it, so you’ve got to clear copyright. But at least it’s a one-stop shop where you can go and find a lot of old archival programs, old ads, government programs. There’s also Film Australia; it’s a government organization, but also a documentary film production company. They began filming government films in 1913, continuing until the 1980s. The footage is on-site and able to be licensed. Some of their vision [visual materials] is digitized online. You’ve also got the state libraries, but they’re mainly stills. There is a private stock footage house that used to be called Film World. They were bought out by Thought Equity in 2007. They hold the Cinesound Movietone archive. Film World was never government, it was always a commercial stock company.

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How much of your research do you do online, and at what point do you have to go to the archives to dig? It depends. If I’m working for an advertising agency and they want just your basic shots—and they want them now—I only go to the online archives. If I’m working on a documentary or television or film, where they’ve got some time and want me to find something that hasn’t been seen too much before, that’s when I’ll dig. The digging is what takes time, but if we find something, it could be gold. It’s going to the Health Department to get their sex education docos that they did in the 1950s. It’s going to the Salvation Army to get their early, early footage of the Aboriginal people. I like the digging; it’s a challenge. How much of your work is commercial versus documentary?

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Advertising agencies are probably about five percent of what I do. And what I’m finding with ad agencies is that they tend to get their production assistants to go through the online data, realize it’s too difficult, and then hire a film researcher and want it done within two days. The ad work pays well, but there is definitely more pressure. As far as documentaries and television programs go, they will hire a film researcher, someone who’s got lots of experience, and they’ve got their own group of film researchers they usually hire. Do you find you’re often searching for and obtaining materials from archives outside Australia? It depends on what I’m looking for. For Salute, for the Chicago riots and other archive from the late ’60s, I went to CBS because the BBC represents them here and they charge in Australian dollars, a good rate. For Who Do You Think You Are?, I’ve been dealing a lot with state archives in Germany and Hungary, to clear stills. The New York Public Library, I’ve been dealing with them a bit, to clear images. Art Res [Art Resource in New York], been dealing with them a bit. So it really depends. I’d say that about 40 percent of the film research that I do is outside of Australia. Because you see, Australia, if we’re talking about like, Who Do You Think You Are?, they’re tracing family trees. Now, the families started somewhere, not in Australia. So a lot of them are coming from England or Scotland or Germany or New York. It really depends on what I’m working on. What’s your best find at an archive? About 14 years ago, when I first started to freelance, I was working on a Channel Nine program [Nine is another Australian network] and they wanted Avon commercials in Australia. So I found Avon

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and they said, “No, no. We dumped them. We don’t have them.” And then, probably about a week later, I said, “Look, can you please just look around in your storage? Sometimes they’re under boxes.” “Okay, we’ll have a look.” I get a phone call a few hours later saying, “Yes, we found them.” So that was great, because I actually made them look. We’ve found some home movies by saying to someone, “Look, go and have a look in the garage,” especially if we knew the father was handy with a camera. Sometimes you have to suggest places to look. They’re like, “Right, I’ll go have a look.” And then you find gold. Channel Seven had all these Sinatra films, 16 mm news stories, and they were just labeled “Sinatra.” And I got them all transferred, and I’m sitting there watching them, and one of them was gold. It was of Sinatra’s bodyguards when he came out here and he made that big comment about journalists are prostitutes. [In July 1974, on the first night of an Australian tour, Sinatra reportedly referred to the world press as “bums” and said that the “broads that work in the press are the hookers of the press.”] And it’s all on film, all with sound. His bodyguards actually called our Seven crew around to the back door and told them Sinatra would be coming out the back. But it was just a ploy to get the crew out there, and they actually beat them up. And the audio (with shaky camera vision) is all on film. Another find was Johnny Cash. This is Seven as well. We had a Johnny Cash video that I got transferred off film. It was him, 30-something years ago, doing a concert, not in Sydney, not in Melbourne, but in an Aboriginal mission out in the Outback. And he’s with his wife, and his son is probably about four. And he’s out with the Aboriginals, eating kangaroo tail; with June and Johnny on stage, singing; and he goes down a mine, with all the miners. It’s amazing stuff. And it’s color.

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In addition to your work as a film researcher, you represent the footage library for Seven. I’m in charge of their rights and clearances. I work on my own; I work from home; I’ve been with them for 10 years. It’s [straightforward], the rights and territories: This is your license fee. Standard emails. But because I can do all my other stuff, my film research work, it’s great. Seven likes it as well, because people come to me as their first point of call. They often come to me to do film research for programs that they haven’t got an Australian sale for yet. So if I think it’s a project that Seven might like, I send the information to Channel Seven. For my clients, I provide them with very fast research results from Seven and am able to provide doable favors to help the project. This may not be a license fee reduction but something else that I can do while still remaining loyal to Seven. So I find that it helps both parties out.

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Toronto Elizabeth Klinck Emmy Award–nominee Elizabeth Klinck has been a producer, researcher, and clearance specialist on hundreds of award-winning documentary films from Canada, the United States, and the United Kingdom. She is a graduate of Queens University and a member of FOCAL International, Audio Visual Trust, and Historymakers. In 2008, she was the recipient of FOCAL International’s Lifetime Achievement Award. The founding chairperson of the Visual Researchers Society of Canada, Klinck lives about 70 miles outside Toronto. She spoke with Kenn by phone in July 2007. Tell me about the Visual Researchers Society of Canada (www.visualresearch. ca), which you founded with some others in September 2005.

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It’s been wonderful because we are all so isolated and working in our own offices; it’s been so well received, and our numbers have swelled to almost 30. We get together five times a year and keep in touch by email. We brought in an E & O insurance person one night to give a little chat and a copyright lawyer another night, and we’re bringing in a digital rights specialist in September for our first meeting in the fall. Also it’s been, in an ad hoc way, kind of like an employment agency. If someone’s working and gets a job and can’t do it, or they feel somebody else has better expertise, it’s this very collegial exchange. Maybe it will only be a one- or two-day contract, but it certainly helps. It’s also extra eyes and ears, or someone closer to a particular collection. Exactly. For example, I know there’s stuff in Quebec [but] all the titles are in French, or all of the key word searching is done in French. A lot of us are functionally bilingual, but we’re not fluently bilingual, and when you are looking for those nuances, it really pays to have somebody who can do that for you in Montreal or in Quebec City, so that’s been one of the advantages. We have members in British Columbia and three from the prairies and eight people from Quebec. We’re going to try to do a big launch this fall and generate some traffic and let people know about it. [One] thing we’re lobbying to try to improve and change is that our Library and Archives Canada, in Ottawa—a wonderful repository—is not set up for professional researchers who are not in the Ottawa area. [In 2004, the Parliament of Canada merged the Public Archives of Canada and the National Library of Canada into the Library and Archives Canada.] They definitely feel more like preservation libraries;

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in order to get screeners from them you have to jump through a lot of hoops. There’s absolutely no way you can just walk in with a camera and screen, or just shoot off a monitor the way you can at NARA or the Library of Congress. And so we’re trying to lobby the head archives people there to change their system a little bit, to make it more user-friendly for those of us under tight deadlines. People say, “There’s lots of stuff in the archives,” and we say, “Yeah, how many months do you have?” I’m always envious of how easy it is to get things from the National Archives in Washington. You’re extremely lucky there. It seems like the other wonderful thing I’ve noted over the years is how much international material is on deposit there. I worked on a film about the Belgian Congo, and I wasn’t having much luck at all getting footage from the Belgian archives, and then in desperation I contacted Bonnie [Rowan] and she came up with all sorts of great stuff, and it was available and in really good condition. I’m finding that more and more. What happens here in Canada is that in order to get a VHS screener, before you even know if there’s anything on the tape that you want, you have to contact all the copyright holders and get their permission. If it’s an estate, sometimes they don’t know who controls the estate, you end up doing all this running around to just get a screener. Which unless you’re pretty sure there’s something fabulous, you can’t afford to do, you know?

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Can you screen on-site? You can, but it’s in Ottawa, and if you’re living in Vancouver, that’s a $2000 airline ticket. You can hire someone to go in and be your ears and eyes, but they can’t make a copy the way, say, someone like Bonnie can in Washington, and FedEx it to you so you have it the next day. So it’s very cumbersome, especially for things that are obviously in the public domain. For example, there was some NATO footage that I really wanted of the DEW [Distant Early Warning] Line up in the Arctic, made in 1954 or something like that. I had about five emails from different people in NATO saying “please go ahead and use it,” but because they also said, “we don’t think it’s ours,” they wouldn’t let me go ahead and get a copy of it. So we’re trying to get that changed, but it’s a problem. Also, in Canada we have regional offices for some of the international archives. So that’s helpful and wonderful in many regards, but it sometimes adds a little extra time. For example, we deal with the BBC here in Toronto, but they have to, in turn, deal with the BBC in London, and so we’re not able to deal directly with London. I’m sure you have the same problem.

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Yes, we have the BBC in North Hollywood, but they then go to London for most of the footage. And one of the other considerations is kind of a nuts and bolts consideration. Here in Canada, we have pretty good financing from the government in terms of tax credits and actual interim financing and things like that, from this organization called Telefilm Canada. [But] if you are funded by Telefilm Canada, one of the stipulations is that 75 percent of your budget has to be spent in Canada. Well, if you’re working on an archives-heavy history doc, for example, a lot of your archives are going to be from the U.S. or the U.K. And it’s a big problem if you have a lot of clips from Warner’s or Universal or whatever, if you have to pay in U.S. dollars and you have to pay to the Los Angeles companies. And so what’s happened in the last five years, one of the biggest changes on the landscape in terms of the Canadian archive scene has been the establishment of representatives in Canada where you can buy this stuff, but you are actually giving the money to a Canadian corporation, spending your money in Canada. So for example, ITN—I always used to deal with the New York office, or the London office, and now we have a rep here in Canada who sells for them. 70

What are some of the lesser known Canadian archives? Probably the mother lode of material is at CBC, the Canadian Broadcasting Corporation, [national public broadcasting, headquartered in Ottawa], which goes back to the 1950s. And then there’s the Radio Archives there, that goes back even further. And they’re probably the first place most of us go to because they’ve put a lot of money into archival preservation. And they have a reciprocal agreement with the Library and Archives Canada, too. If something is held at Ottawa and for some reason it’s gone missing at the Toronto CBC offices, then they can make arrangements to have the masters sent back and forth, so that’s helpful. The CBC also has regional archives in Vancouver, Winnipeg, Montreal, and Halifax, and so sometimes you can find things in the regional archives that haven’t made it to the headquarters. Radio Canada, which is the French arm of the CBC, has a huge collection in Montreal, and they’re less expensive. So sometimes I will go to them if I know I’m going to use it MOS [without sound]. Radio Canada covers the same time period as CBC. CTV [Canada’s largest private broadcaster] has been around since the 1960s, so it doesn’t have that early period from the 1950s to, say, the late 1960s, but they have a fairly extensive archive. There are two other large networks in Canada, Global and City, but they’re not set up for

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archives. You have to approach them on an ad hoc basis and get permission from their news department or whatever. They’re not public, really. And CTV is commercial? Yes, and in fact in terms of ratings they’re the top-rated network as well. They’re the network that shows American Idol and Desperate Housewives. But they also commission documentaries and they get great ratings. So they get more eyeballs and they tend to do full commissions. I do a lot of work with CTV, and they’re lovely to work with. But they don’t have as large a regional network in terms of archives. They have some in Quebec and some in Vancouver, but it’s not set up, it’s not as large a holding as the CBC holdings. And National Film Board, how much can they be used as an archival resource for outside clients? They’re becoming more and more accessible. The beauty is that a lot of their material was shot on 16 mm, Super 16 mm, and 35 mm from the early years, so in terms of an HD collection, they’re a pretty extensive collection. Obviously they’re not a news net, so they don’t have the same kind of current affairs coverage, but they employed a staff of cinematographers, some of the best in the country, up until about 10 years ago. I go to them always, because in terms of the quality—because it was shot on film, and because they generally had a high shooting ratio—they have really good material.

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Do they make outtakes available? In some cases, they have the outtakes. And the other thing is that because they did a lot of sponsored films, they have subjects that the news networks and other commercial filmmakers just didn’t touch. They, for example, were the government-sponsored film agency, so they did all of the stuff for things like Indian Affairs, or Canadian Overseas Development Agency. There’s a lot of international material at the National Film Board. They were in Africa and Southeast Asia and a lot of different places. And because the tradition of cinéma vérité was so strong, there’s such beautiful shooting. I find that the early material at CBC has that same sensibility. I worked on a film about a boxing match between Muhammad Ali and a Canadian heavyweight, George Chuvalo, called The Last Round. It was a 90 minute film, and 72 minutes of it were archival! I found some just absolutely beautiful material at the CBC. There’s such a strong tradition of documentary filmmaking here in Canada. That’s our real forte. We do have vintage dramas, things like that, but documentary, definitely,

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has always been the strength in Canada, so that material is generally really well shot. You mentioned something called the Audiovisual Trust in Canada. Will you tell me about that? The Audiovisual [Preservation] Trust started about 10 years ago, as an initiative by the Library and Archives Canada, the National Film Board, and the CBC, to try to preserve some of the materials that were just disappearing. And they started something called Masterworks, which is a celebration each year of the finest works in television, film, radio, and music. Because, as you know, so many of the masters are just disappearing or being thrown out or whatever. So it’s an initiative by the Audiovisual Trust to try to preserve the materials [and] also to make people aware. They put out a newsletter, and they’re trying to get more members and more support because a lot of materials are just disappearing, especially the video, or are not of the quality you want for your masters. What about stills archives? 72

In some ways, stills archives are more unusual or interesting than the motion picture archives. There are a couple in Montreal, one called the Notman Collection [at the McCord Museum], which is a huge collection of photographs. And then the Canadian National Railway has a large archive, as does the Hudson’s Bay Company archives. And then the provincial archives in each of the provinces have quite considerable photographic holdings, and some film holdings as well. They’re run by the government of each of the provinces. In the case of the national railroads and the Hudson’s Bay Company, those are corporate archives. But because the CN company [Canadian National Railroad] was what they call a “crown corporation,” they had photographers and staff cinematographers, and it’s quite a wonderful collection. And the CBC and National Film Board? Those archives also have photo archives, and some of them are quite beautiful. The Film Board published several large-format coffee table style books, and they would commission still photographers from across Canada to submit their works. I’m trying to remember, is it 30,000 photographs? It’s a huge amount that the Film Board owns, but they’ve never really exploited them. And they haven’t even digitized most of them, so they’re held in hard copy only in Ottawa in a vault. But it’s definitely something that people should be made aware of because the more people demand it, maybe they’ll put more money into digitizing it.

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Washington Michael Dolan, Kevin Green, Polly Pettit, Bonnie Rowan, and David Thaxton Kevin Green and David Thaxton (www.thaxtongreen.com) have been colleagues and partners since the 1980s: David’s background was in history and archives, and Kevin’s was in historic preservation and architecture. Together they formed Thaxton Green Studios, Inc., now located in Millwood, Virginia, where they continue to conduct archival research as well as consult and produce. Bonnie G. Rowan (www.his.com/~browan/index.html) is credited on numerous films and series, including nine episodes of American Experience; Preston Sturges: The Rise and Fall of an American Dreamer (American Masters), Revolution: Five Visions (Independent Lens), The Rise and Fall of Jim Crow, and the feature documentary The Cutting Edge: The Magic of Movie Editing. She co-authored the invaluable Scholar’s Guide to Washington, D.C. Media Collections, 1994. Polly Pettit has done film research on many documentary films for American and international television, among them The Perilous Fight: America’s WWII in Color and Victory in the Pacific for PBS. Other credits include With All Deliberate Speed, the first theatrical documentary released by the Discovery Network; The Century: America’s Time, an 18-part series; and the feature documentary The U.S. v. John Lennon. She and the research team on Declassified: Nixon in China won an Emmy for research in 2005. Michael Dolan has been providing film, audio, and still photo research services to television documentaries, motion pictures, radio programs, books, and museum exhibits for more than 13 years. He has worked on hundreds of projects in North America, Europe, and Asia. Credits include the motion pictures An Inconvenient Truth and Why We Fight; programs for the PBS series American Experience, The War, Frontline, and The Supreme Court; and films for the BBC, Discovery Channel, National Geographic, Arte Television, The History Channel, and CNN. With consent from the participants, we combined two conversations: Michael Dolan, Polly Pettit, and Bonnie Rowan spoke with Sheila in June 2007 at a gathering at Pettit’s home; Kevin Green and David Thaxton spoke with Kenn by telephone in September 2007.

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How do you explain to clients the differences between the National Archives and the Library of Congress? DAVID THAXTON: The National Archives is the depository for film of record, of the people of the United States as recorded by government

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institutions and [the] military. In addition to that, there are donated collections to the National Archives which are most, most important. They include, for example, the Ford Film Collection, the Harmon Film Collection, the Universal Newsreel Collection. POLLY PETTIT: The National Archives has the biggest collection of nonfiction film in the world, and it has a huge proportion that’s in the public domain, so that’s the primary source for us. And they allow on-site, self-service copying of material that’s not proprietary, that is in the public domain. And the Library of Congress?

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DAVID THAXTON: It’s the outgrowth of the Copyright Office, which means that in order to register a film for copyright, a copy would be sent to the Library of Congress, going back to the turn of the last century, and the Motion Picture Collection (and now the Video Collection as well) and the Radio and Sound Recording Collection basically began to be accumulated. So the Library of Congress basically is the repository of the copyrighted footage registered with the Copyright Office, which includes Hollywood features, shorts, cartoons, newsreels, German newsreels. The Library of Congress also has outgrowths of the copyright collection that are no longer copyrighted—most importantly, the Paper Print Collection. And then other archives in Washington? POLLY PETTIT: Then there are the Smithsonian Archives, which would be National Air and Space Museum, Museum of American History Archives Center, and the Human Studies Film Archives at the National Museum of Natural History. And the National Library of Medicine, another possibility. But really, the National Archives and the Library of Congress are the two main ones. When you’re looking at footage in an archive, what do you tend to be looking at? Not originals, I’d presume. BONNIE ROWAN: One thing that maybe is unique with the National Archives: Ideally there are three copies. One is the original, which is out in cold storage in Kansas. Then there’s an intermediate, which is what is sent to the lab [for duplication after the filmmaker has placed an order], but we never get our hands on that; they try to have it as close to the original as possible, as pristine. And then the third copy is the reference copy, which is what we can look at and make screening copies

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of. There could be 35 mm film on a flatbed, or 16 mm film on a flatbed, it could be 3/4 video, or VHS. And soon it will be CDs; [already] they have some things on CDs. So they need to have a variety of viewing equipment up and running, for you to do your jobs. POLLY PETTIT: This is a cause that we’ve all been trumpeting: trying to keep the funding for the Archives. It’s past being able to keep up with the change in technology, because 3/4 video is obsolete. But just trying to get things on some medium that we can actually use. For a while it was 1/2 and now it’s looking more like it’s going to be CDs, but they’re way, way behind. And the machines break down constantly. MICHAEL DOLAN: They’re trying to buy used ones where they can, and cannibalize others, just to keep what they have there working. These enormous collections—like just about all of the World War I films—are on old 3/4 reference videotapes. And that’s what the researcher can look at, the videotapes. If there are no machines, there’s nothing to play these on. So essentially it makes entire chunks of the collection inaccessible. When working for clients, you’ll pull footage, look at it, and then send the client a preview screener? What is the quality of those?

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BONNIE ROWAN: The National Archives made a decision years and years ago—and it was a very wise decision—to make viewing copies. They could have made, for instance, 10, sending them to the lab and getting film-to-tape transfers. Or they could make a hundred for the same cost, by having some low-paid government employee sit at a machine where it’s rigged up, but it’s basically a flatbed [editing machine, such as a Steenbeck]. And a flatbed, because of the rotating prism, gives a flicker to the top, and it’s soft focus, and often they copied films which had [faded]. So the client needs to understand that this doesn’t represent the visual quality of the original. BONNIE ROWAN: I write a big paragraph saying, “Your copy is only a screener and when you order through the lab, your copy will be beautiful.” And if I look at something and it’s deteriorated or heat damaged, then I make a note and say, “This is not going to improve.” But that’s so important because I’ve heard people tell the tale of their editor rejecting everything from the National Archives because it looked so bad. And then the editor calls in ecstasy when the master tape arrives because it does look beautiful.

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On the other side of that are people who come in thinking that they can bring fancy equipment and therefore get a useable copy [by dubbing it in person]. And junk doesn’t convert to beautiful just because you have an expensive camera. So on some of the lower-budget history programs, when the footage looks pretty dreadful, it’s possible someone is airing their dub of a screener? BONNIE ROWAN: “Old film looks old.” That’s a lie; you can find film from 1900 that just sparkles. Cheap filmmaking looks like that, not old footage. The Archives becomes the repository of U.S. military collections. What are some of the issues people need to look out for?

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DAVID THAXTON: As far as the motion pictures go, in the military material, the [Army] Signal Corps was responsible during World War I for coverage of the war. And all of that material, about 10 years after the end of the war, began to be archived and given numbers. And it is, and has been for 50 years, at the National Archives. World War II is a little bit more complicated. The Army was shooting throughout World War II as well as through Korea and Vietnam [and after]. The Navy was shooting through the ’30s and into the ’40s. The Marine Corps was shooting pretty much from 1943 through Korea and Vietnam too. It’s a mixture of formats, in terms of 16 mm and 35 mm, but the military collections through the Vietnam era are all at the National Archives. The problem [with the Vietnam material] is in terms of the records and indexes and subject catalogs and so forth; even though the film is at the Archives, access to the material and determining what’s on the reels is a time-consuming paper process. People also need to understand that while a lot of what’s at the National Archives is in the public domain, not everything is. MICHAEL DOLAN: There are some collections at the National Archives that were donated without restrictions, so they are therefore public domain. Material shot or produced by the government is considered public domain. But it depends: It may be a film that’s in the government collection but wasn’t produced by the government and is still under copyright. BONNIE ROWAN: The Madonna music video is there in [Record Group] 306, and you know that’s not rights free. [RG 306 is the U.S. Information Agency (USIA) collection. Along with Madonna, performances

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by Merle Haggard, Roberta Peters, Beverly Sills, and many jazz greats are part of this collection, in part because they were live performances at the White House or other cultural concerts.] MICHAEL DOLAN: There are films that were made during World War II, films of the Command Performance radio show. Now the films are public domain but the performances—you could get into trouble if you used the one of Judy Garland singing Over the Rainbow, with the sound. Another example, there’s a film about the interstate highway system that was made by the government, the USIA. Okay, that’s public domain, but the music may not be, and there’s a clip in it from the movie Sounder [a 1972 Hollywood feature]. Now, you know that clip is not going to be public domain. BONNIE ROWAN: You have to be pretty savvy, and that’s why, even though we’re not intellectual property lawyers, we know what the rules are. So you’ll pass footage along to clients and explain why you believe it may or may not be in the public domain.

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BONNIE ROWAN: I do that; I’ll say, “This was Universal Newsreel” and then what the deal is with that. And then the Ford Collection, what the deal is. You’re giving them all the information you have. POLLY PETTIT: It’s in other areas, too. Footage shot by the Third Reich in Germany, that’s tricky. We’re always trying to find a way to find the same footage or similar footage that’s already been used in an American military production [to avoid German rights issues]. What about the Library of Congress, in terms of public domain? POLLY PETTIT: The Library of Congress is also tricky. Of course, they do police things very, very closely, because they’re responsible for enforcing copyright. But they might have films from the silent era that are way out of copyright and you still can’t get them [from the Library] because there are donor restrictions. So it’s still a matter of who possesses it. BONNIE ROWAN: You have to go to the person who donated it and say, “Please, give me permission to take this film out of the Library of Congress.” At that point, they usually say, “Okay, it’ll cost you this much, and sign this contract.” And then it’s different, then it’s contract law, not copyright law, that restricts it.

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What about audio and still photo collections at NARA and LC? BONNIE ROWAN: There are people who just do stills, and then there are people who do motion and will do stills to kind of finish up the project. And Michael is the recorded sound person. MICHAEL DOLAN: I’m a recorded sound person. How big is the audio collection at the Archives? BONNIE ROWAN: Vast. MICHAEL DOLAN: And that part of it is very useful, especially for “fireside chats” [with U.S. President Franklin D. Roosevelt] and other speeches that were broadcast over the radio but only partially filmed. A lot of people are very surprised to hear—and this is something that I think we all come across, especially with younger people [who have] a CNN, C-SPAN point of reference, where they just think anything that any president has ever said was recorded and filmed— POLLY PETTIT: —and every congressional hearing of every— 78

MICHAEL DOLAN: Right—was filmed. But Roosevelt would give his fireside chats on the radio and then he would repeat portions of them for the newsreel cameras. So if somebody’s reading a fireside chat and wants film of a particular passage, we’ll say, “Well, that’s not the passage that was filmed and sent out to the newsreel companies at the time. So if you really want to use that, you can pull it out of the audio recording.” What are your favorite discoveries or finds? BONNIE ROWAN: Iwo Jima, for me. There was a guy, Norman Hatch. I’d heard him lecture; he was in charge of the Marine crew that landed on Iwo Jima, and he was in charge of the crew that shot the raising of the flag, it’s available in color. I was working on a show that was focusing on footage—I’ve always thought that’s what someone should do, should say, “Great footage, how did they happen to get this footage?” So they interviewed Norman and he told them that he was carrying a 35 mm [camera] with black and white film when they got off the landing craft, and he said, “I shot inside the landing craft and the gate goes down and we walk onto the beach…” Anyway, he said, “I never saw the footage.” And I’d worked on Iwo Jima a lot. I said, “No, I never used black and white because there’s color. Who would use black and white?” So the guys kept after me, “Wouldn’t it be great if we could find that footage?” And so I went, I found Iwo Jima, it was 35 mm, I assumed it was black

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and white, but before I happened to look at it I saw the Letters from Iwo Jima feature film. And it made very clear that the first wave that landed on Iwo Jima walked ashore, because the commanding officer said, “Hold your fire, hold your fire, until all the troops get off on the beach, and then bam, get them.” When I heard Norman Hatch say he landed carrying this big camera, I imagined him the way I’d seen all the other footage, which is the guys hit the sand and they’re under fire. And so none of it made sense. But once I understood that the first wave walked ashore, no gunfire, I looked at the 35 black and white, and there it is. And I would have ignored it. I would have said, “Oh, that must be later, after everything was settled, because they’re just walking ashore.” The footage wasn’t that great, but it was his footage. So that was my best day. POLLY PETTIT: When you find footage of a real person in the historical footage, that can be extremely gratifying. I was asked [to look for footage] by the headmaster at a school in England, whose father was on the prosecution team at Nuremberg. And so I went into the Nuremberg trials and found footage of his father and made a copy of it and sent it so the whole family could see it, and that was really neat. I also found a prosecutor at the Tokyo trials; he personally came in with his family looking for it, and we found that.

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How about you, Michael? MICHAEL DOLAN: Nothing like that, but one of the other things that you get a charge out of is when you’re just browsing through lists of film titles that don’t have any descriptions, which is another problem with online searching. And you see a title that you’re curious about and there’s only one preservation reel; the original film is sitting somewhere, there’s no intermediates and nobody’s ever ordered it, there’s no reference copy, so it probably hasn’t been seen since it arrived at the Archives. And it turns out to be something really phenomenal, like this remarkable, 16 mm color film of Harry Truman shortly after he became president [upon Roosevelt’s death in 1945], all of these scenes of him with his wife and daughter. It’s an edited film that looked to me like it was made to be shown in schools: “Here’s the new president.” It shows scenes that I had never seen anywhere, and it’s all early stuff. That’s a good day. And it may not have anything to do with anything you’re working on at the time, but you make a note of it and then come back and sure enough, you’ll use it for a couple of projects. Kevin and David? DAVID THAXTON: The projects, for me at least, and I think for Kevin too, that have been the most meaningful over the last couple of

A GLOBAL PERSPECTIVE

decades are those that have taken a year or longer to make. Back in the 1980s producer Dennis O’Rourke came to us and said, “I’m going to make a feature about nuclear testing in the Marshall Islands, and specifically focusing on the first hydrogen test.” And he said, “I figure maybe 15 percent archive,” because he was shooting on Super 16, himself. He was a cameraman for Australian Broadcasting before he became an independent producer. And we spent over a year working together, back and forth, and accessed the military archives at Norton Air Force Base and the Nuclear Defense Agency collections. We got quite a lot of film declassified on the Bravo test in ’54, the second hydrogen test. KEVIN GREEN: David had a security clearance that went back to the days when he was teaching at West Point and in the military. And that gave him a larger entrance into the structure of the military, especially the Nuclear Defense Agency.

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DAVID THAXTON: The film [Half Life], when it was finally finished, was an 85-minute feature. It got an enormous amount of attention in Europe [and was nominated for an Academy Award in the United States]. Instead of 15 percent of it being archival, 55 percent of the film was archival. And I only mention this as an example of: If you are fortunate enough, as an archivist or an archive researcher, to be involved in a production that can in fact be shaped and influenced by what you discover, that is wonderful. Not only can you see the effect that your contribution makes, but it makes for a better story. It’s an organic process. DAVID THAXTON: The best productions are those that evolve organically. One thing informs the other, and you’re not so locked into the script that’s already been written, but you can adjust it according to what you discover in the process, whether it’s through the interviews that you’re shooting or the research you’re doing. And we’ve been lucky over the years, because usually a couple of projects a year are like that. Do you work with foreign producers much? BONNIE ROWAN: They are in awe of the fact that they can get this material; they can’t go to their own country’s archives and get things without licensing fees. POLLY PETTIT: In some cases, the same footage was shot by the British and by the Americans in World War II. The British film went to the Imperial War Museum, but there’s a crown copyright on that.

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How do you see changes in archival filmmaking, particularly with digital filmmaking and the Internet? DAVID THAXTON: I’m actually quite hopeful. I am extremely optimistic that the digitization of vast archives of material will only make it more available, rather than (as it is now) sporadically available. And it will give opportunities vastly greater for research and for people doing research themselves, at low expense, sitting at home on their computers. When I was an archivist at the [American] Film Institute, my concern was always: Preserve it first; two, give access. My colleague David Shepard and I approached all of the major Hollywood studios in an effort to get them to donate the original nitrate negatives of the Hollywood features and shorts to the collection that is now at the Library of Congress. And with one major exception, all began to participate in that project, but it was an uphill battle. Not too long later than that, this fellow named Ted Turner, who had bought the pre-1948 Warner Bros. collection, began to put commercial money into preservation. And there are beautiful, beautiful prints of many films that are part of that collection. Yes, they ended up at the Library of Congress, but they also ended up on television, on DVDs, and people have seen them. So the partnership of public and private money, I think, is not necessarily a bad thing. But it’s just trying to get the public consciousness of those people in the position to be able to afford and to fund those kinds of projects, to be on board as well.

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Perhaps part of the solution is making more people aware that these materials are a public treasure. DAVID THAXTON: Well, maybe that’s our job, to try and make sure that people don’t forget that this is in fact a public treasure.

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PART 2

USING IT

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CHAPTER 6

Practical Considerations In the previous section, we looked generally at what archival materials are and where they might be found. In this section, we follow the general path through archival use, from ordering preview materials (“screeners”) for editing to ordering masters for finishing. Along the way, we look at creative, financial, and ethical aspects of archival use. In this chapter, we introduce some of the basics of incorporating archival materials into your film’s workflow.

A Standard Workflow Making a film, whether drama or documentary, tends to follow a fairly linear path: Preproduction ■ ■

Treatments and/or scripts are drafted as filmmakers decide what story or stories they want to tell and how they want to tell them. Preliminary research of archival elements and prospective film subjects (the individuals to be filmed) is conducted; in fiction film, actors are cast.

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Location filming gets underway, as scenes, sequences, B-roll, interviews, and other origination are recorded; in the case of fiction films, the shooting script is followed.

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Archival research also gets underway as needed, whether the film is fiction or nonfiction; third-party materials are identified and acquired by staff and/or professional researchers.

Editing (also described as “offline” editing) ■

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Production and editing teams screen the rushes or dailies, the raw footage that’s been shot and any archival material that’s been gathered. Selects are made and a rough assembly of the film is created, which often mirrors the film’s intended structure (or in the case of fiction, follows the shooting script) but may run three or more times the length of the final film. Footage continues to be edited into scenes, sequences, and perhaps acts, as a story arc emerges and is refined. At a point that is generally a bit more than halfway through the editing schedule, the rough cut is screened. This is longer than the final film, but the story, structure, major characters, and most important archival materials should be in place. Filmmakers often invite outsiders to screen rough cuts to see if the story and film are working. (NOTE: If you are hoping to use commercially recorded music, the complexity of rights clearance means that you must make music selections by rough cut.) Lessons learned from the rough cut are incorporated as the film continues to be revised. At a point approaching the end of the editing schedule, the fine cut is ready. If all is going well, this will be close in time and appearance to the finished film, although even at this stage fairly large changes may be deemed necessary. New shooting may augment a missing voice; new archival material may augment what’s there or replace materials for which rights can not be acquired. A short while later, the picture and sound are locked (picture lock and sound lock). The film is at its final length.

Finishing (the process of postproduction, which includes online editing and the sound mix) ■

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Final archival masters have been obtained, along with all necessary clearances and paperwork; you don’t want to completely finish your film only to learn that you can’t have or can’t afford some key footage, stills, or piece of music. The edited film (video) is conformed in an online editing session, meaning that each edit in the offline version is duplicated, this time using the clean master materials.

ARCHIVAL STORYTELLING

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Usually this is followed by a sound edit, in which sound effects, final music, and final narration are added to the sound lock. Finally, the sound mix is done; in this phase, all sound elements are balanced in terms of volume and quality, combined into final tracks, and married back to picture.

Interrupting the Workflow No film or series follows a straight trajectory, and interesting things can happen when the workflow is interrupted or changed. Some of the best moments occur when filmmakers find archival materials in advance of shooting and use them to shape their approach, spark subjects’ memories, or inform film storytelling. In the early 1980s, for example, a producer for the PBS series Vietnam: A Television History set out to explore a controversial 1965 CBS News report about U.S. forces setting fires in the village of Cam Ne in South Vietnam. Prior to shooting, he obtained a copy of the news report, from which still photographs ( frame grabs) were created. The production team brought these stills to Vietnam, where they asked residents for help in identifying and finding the individuals in the report. They then interviewed these people, powerfully intercutting the present-day footage with the CBS material shot 16 years earlier.

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Ngo Thi Thiep in footage from CBS Evening News, 1965 . . .

PRACTICAL CONSIDERATIONS

. . . and as filmed by WGBH in 1981 for Vietnam: A Television History.

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Budgeting for Archival A big-budget archival series like The War or Eyes on the Prize, in which images and music significantly drive the storytelling, takes considerable time and expertise to research and negotiate. The credits for such series will give you a sense of how many people can be involved in the archival process. In addition to senior project personnel (such as producers, writer[s], a director), there may be a senior archivist or senior researcher, who not only tracks archival materials throughout the process and handles clearances but also coordinates freelance researchers in the field. Sometimes there are also at-large content researchers, often working together with associate producers and/or production assistants. As editing gets underway, the editor and assistant editors also become involved with archival materials. Specialists may be hired, such as sound editors, whose work includes creating or augmenting sound to accompany stills and footage; music supervisors; and camera operators skilled at bringing movement to still photos or artwork. Needless to say, most filmmakers, especially those working independently on documentaries, are more likely to be working with significantly smaller production teams. But this doesn’t mean you can put off your consideration of archival materials. If archival is playing any significant role in your film, even if that role is in just one key sequence, you want to think about it even as your overall film idea is evolving.

ARCHIVAL STORYTELLING

When talking about budgeting for archival materials, you’re talking about a range of line items; the specific cost is highly variable. Costs may include: ■ ■ ■

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Research time and related expenses, whether you do the work yourself or hire others; Acquisition costs, to get temporary and final (master) materials in-house, possibly including archive charges for labor or access; Postproduction costs, for example, to create moves on still photos and magazine covers, or to create sound effects and build tracks to augment silent material; Online costs as needed to bring archival materials to industry and aesthetic standards; Rights and licensing costs.

Getting Organized In the next chapter, we talk about the processes involved in ordering the various materials you need at each stage of production. It’s very easy to become overwhelmed by the quantity and variety of material coming in, but it’s also very avoidable. The key is organization.

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Build a Gatekeeper Database If your editor is using any of the nonlinear editing systems that are popular today, such as AVID or Final Cut Pro, there will be a shot-logging utility that allows her, as material is digitized, to create (virtual) bins for digital clips. Organize these bins in a way that works for the editing team, but aim for clarity and consistency. And if you are using a significant amount of archival material, also consider logging that material into a gatekeeper database. This is a database maintained by an archivist or assistant. As items come in-house, crucial information about them is entered; this information will be more complete, and organized differently, than the shot log your editor uses. It’s geared toward financial tracking, reporting to archives to acquire masters, obtaining license agreements, and maintaining detailed, searchable content information. A properly designed system will enable you to: ■ ■ ■ ■

Search through detailed content information to find specific items by key word or date; Know which digitized clips are from which source; Develop a final report to each archive about what you’ve used; Construct your archival list for your film’s credits;

PRACTICAL CONSIDERATIONS

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Confirm that materials haven’t been misplaced or have failed to arrive; Match up shots used with their sources; Confirm, as appropriate, that you are being accurate in your use of historical materials.

You can develop any kind of gatekeeper system that works for you, from simple to complex. Kenn uses a system he created, SHOWLOG. It runs on the database software FileMaker Pro, which is cross-platform (that is, it runs on a Mac or a PC) and includes a few key elements that you’ll want to incorporate even if you design your own system.

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Story Number SHOWLOG is predicated on the idea, developed by the producers of The World at War (1973), that each item (database record) in the system, regardless of what type of material it is, gets a unique identification number (called a story number). FileMaker has a function where a field can be designated to auto-generate a unique number for each new record. A story is one archival item from one source with one source reference number—an identifier necessary for the archive to know in order to retrieve its original material. It might be a film reel number, a news assignment number, or some other designation. This is also the basic “unit of measure” for your report to archives when your picture has been locked and you need masters. ■

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If there is physical material accompanying the item (a photograph, videotape reel, or CD), the item should be tagged with the same story number the database has assigned to it. This makes original items much easier to find and identify as your shelves fill up. Usually a screener from an archive will have multiple stories on it, in which case you can label the spine with the range, such as “Stories 142–163,” making locating specific screeners on the edit room shelf easy. Log the head and tail timecode cues for each story into the database. If you’ve downloaded a still or a clip, there won’t be a physical item to label and store. In that case, use the story number as the name for the corresponding file on your hard disk, or the story number together with a descriptive title (for example, a scanned or downloaded photo might be 243.jpg or 243_Iraq Briefing.jpg).

Thumbnail Image If you have the technology to scan stills or grab frames and make JPEG files, it can be very useful to include thumbnail images in the database

ARCHIVAL STORYTELLING

SHOWLOG Browse Screen. Each horizontal line is a summary of a record; the list can be sorted by various parameters. Note the top buttons indicating information screens and functions.

for quick visual reference. This is easy in FileMaker Pro, and the software can similarly include actual QuickTime clips.

Title Make sure that each item entered into the nonlinear editing system’s shot logger has a title or column that includes the story number. Often, editors using SHOWLOG will prefix a title with the story number: “155 Detroit Riots Broken Window.” With the story number, you can easily match a digitized shot in the editing system bin with detailed information about that item from the database, which can then be matched with the physical object, if any. The thumbnail image of the item in the database can serve as a double check. If the number is put into the shot logging system during digitization (whether of footage, stills, or music), it will follow that piece of the jigsaw puzzle throughout its journey from arrival in the edit room through to postproduction. Additional Data You want your database to work for you and to help minimize the amount of time you spend tracking back through information. You’ll need: 92

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Contact information for each potential source you’re using; Price quotes from archives for each piece of material (although they may get revised through negotiations); Details about music rights owners for each piece of archival music; Details about the various guilds you may need to contact regarding actors who appear in an entertainment clip.

Link to EDL A key benefit of a gatekeeper database is that you may be able to link it to your edit decision list (EDL), which can facilitate the creation of financial tallies, reports to archives, and a log of your entire finished show, provided you also log your original footage and music (works you have either created or commissioned, and to which you own all rights).

Do You Need a Gatekeeper Database? SHOWLOG or any such database can be overkill if you aren’t expecting to use more than a couple of shots or sequences of archival material, if it’s all coming from one place, or if it’s in the public domain (in which case you don’t have to report back to an archive). But if your project is heavily archival or the sources are complex, it can be very helpful to develop a database before footage and stills start to arrive in order to track them. For more information on SHOWLOG, see www. archivalstorytelling.com.

ARCHIVAL STORYTELLING

SHOWLOG Basic Information Screen. There are sections for both origination and archival; also source and source reference slots, and slots for workprint and master timecode.

SHOWLOG Content Information Screen. Fields include date, location, description, and a thumbnail of the image (a frame grab or scan).

Working with Archival Materials As may be apparent from the time line, archival storytelling generally comes together in the editing room, especially if sufficient time is budgeted. There may be a strong treatment or script prior to and during shooting, but these are dynamic elements that should continue to change as the strengths of archival materials, original shooting, and other components emerge. An experienced production team trusts this process and remains open to change throughout the edit period; a less experienced team forces interview and archival material into a predetermined story line that may be faster to pull together but will never be as strong or creative as it might have been.

Documenting Archival Use As mentioned, a benefit of a good database is that it will help you generate reports about your archival use. You will need to give specific and accurate information about what you’re using, how much you’re using, and how you’re using it, to: ■ ■ ■

Rights holders; Insurers, as a condition of providing liability insurance; Distributors or broadcasters, as a condition of presenting your film.

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Many of those concerned about ethical lapses in the use of archival materials, particularly the use of historical materials as evidence of the past, argue that this information should also be available for use by educators and members of the public. Some filmmakers agree, while others consider the information to be proprietary. In some cases, such as interactive CD-ROMs created for classroom use, provenance may be provided, but in general, the public only has access to the general list of archival sources offered in a film’s credits.

PRACTICAL CONSIDERATIONS

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CHAPTER 7

Ordering What You Need You’ve identified the footage and/or stills you hope to use. Now begins the process of ordering copies so that you can incorporate them into your edit. Your source material may be film (8 mm, 16 mm, 35 mm, Super8, positives or negatives, single system or double), videotape (2-inch, 1-inch, 3/4-inch, U-matic, 1/2-inch VHS, BetaSP, Digital Betacam, DVCPRO, BetaSX, or HD), or photographic positives, negatives, or digital files. And you may be working in one or more of these formats—perhaps digital or HD video, or possibly film. Depending on what format you’re ordering your copy from (the preprint) and what format you need, what’s the best route to get there? A general word of advice: Without limiting your search, keep in mind that the more items you order and can ultimately license from fewer sources, the less your budget is likely to suffer.

Ordering Materials for Offline Editing In many cases, while you’re immersed in offline editing you’ll be less concerned about the quality of the materials you’re pulling, as long as they can hold a place in the film. ■

For stills, you may be downloading images off the web; those from commercial sources may be comp images (temporary images for place holding, which are often watermarked to prevent unlicensed use). You may be shooting photos with your own video camera or scanning images for use.

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For footage, an archive may make screeners for you, or you may be using copies from the National Archives or elsewhere. For music, you may be using cuts from favorite CDs, perhaps a tune you know you won’t end up using (especially if it’s a commercial hit that’s likely to be prohibitively expensive to license), but the song is close in tone and tempo to what you think you may need, and therefore can serve as a temp track.

With some exceptions, using rough materials like this (sometimes called “slop” materials) makes sense, at least for the initial stages of editing. For moving image, you’ll save steps by working with screeners that directly link to the masters you’ll be using for the online edit, but it’s not always possible. Remember that materials for which rights negotiations are likely to be complicated, which nearly always includes music, should be locked down earlier rather than later—preferably by rough cut. And a word of advice as you edit with archival materials: Keep track of everything. Keep good notes. 98

Moving Image Screeners A “screener“ is a lower quality and generally inexpensive dub (duplicate), usually presented on DVD or VHS, of materials held at an archive or library. In most cases, you will need the cooperation of footage owners (or librarians) to obtain screeners. Screeners serve a couple of purposes. If you have not been to the archive yourself but either hired a researcher or had archive staff pull material, the screener is a way for you to review the footage at your office or edit room. The screener can also be used in the offline edit. At some archives (including most television networks), you may be charged per hour for their in-house research, as well as a fee for pulling material out of their vault and a charge for duplication. As noted in Chapter 3, you can sometimes keep at least some of these costs down by doing preliminary searching online, but what you find is usually only a subset of what may be available. There are some variations in how the screeners are provided, depending on the archive. Each archive usually insists on doing it their own way. ■

The archive provides loaner screening tapes, often for free; you copy the sections you want to have for editing and return the tape(s) to the archive. Free screeners are usually theme-based compilations (“Sunsets and Sunrises,” “Beaches,” “World War II,” etc.).

ARCHIVAL STORYTELLING

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The archives will charge a penalty if you don’t return their loaners in a timely manner. Among the archives that send loaners are Film Bank and John E. Allen. Later, when you want your masters, these archives will create them for you from their originals. Your new master is unlikely to match your screener’s burned-in timecode. You (or your researchers) identify the footage you want, and the archive creates screeners for you, generally for a relatively low flat fee. Burned-in timecode on these screeners refers back to the archive’s original. Later, when you’ve locked your film and are ready to order masters, you’ll pay additional duplication fees and a license fee and wait for the masters to be made. Leave time between your picture lock and final edit for this process. The new master will also likely have its own new timecode. Archives such as Getty, WPA, and Corbis usually work this way. You (or your researchers) identify the footage you want, and the archive creates a future master (in a format you choose) that will be available to you when you lock picture, report, and pay for final footage. In the meantime, the screener will have burned-in timecode from your master. Although upfront costs may be higher, it makes finishing your film more straightforward. You won’t have to pay a separate dubbing charge for the masters or wait for them to be made just as you are preparing for your online or final conform. If you’re doing film-to-tape transfers—if the archive only has film preprint of what you want and has to transfer it for you anyway—making a master at the same time is often sensible because film-to-tape transfers are so expensive. Archives that create upfront masters include NBC News Archive and CNN.

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Screeners and Missing Motion Picture Originals Many archives have already transferred their most popular stories originally shot on film to video masters (including, sometimes, HD) in order to make the process easier and less expensive for both you and them. Archival protocol dictates that they keep the original film in the vault so that it can be called up for mastering if needed, but don’t assume. Very often original film is lost or dumped after video masters are made. Why worry about this? It’s important, especially for theatrical release, because it’s far better to master from original film to a digital scan or HD format (see later in this chapter) than from a non-HD video master. Otherwise, for non-HD broadcast and/or DVD release, if your master is made from the archive’s high-quality video copy, it’s likely that you’ll be fine; you can avoid using the film.

ORDERING WHAT YOU NEED

Screeners and License Fees Occasionally, the initial research or screener fees you pay up front can be applied to your final licensing fees, if any. If you’re not clear about an archive’s specific policies, ask. Although the practice is less common than it used to be, some archives may apply some amount of the upfront fees to your eventual license costs.

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Screeners and Timecode Timecode helps you to track material while editing and allows your editing software to create an edit decision list (EDL). EDLs are guides for conforming picture in the online or final editing session (where your locked offline edit is reconstructed using the best, cleanest elements). As discussed, if you are using multiple archives, the burned-in timecode on your screeners may not be consistent: Sometimes it conforms to the archive’s master, and sometimes to the master the archive created and is holding specifically for you. It’s also likely that the screener will not have machine-readable timecode. The cheapest solution here is to make a better-format dub of the screener in your edit room, generating a second set of timecode just for offline editing use. This is a sort of “subscreener” from which you digitize. Once you order a master, you’ll replace this “slop footage” and thus have master timecode suitable for your online conform. Drop (Frame) or Nondrop Timecode? If the archive (or its lab) is making a master specifically for you, they’re going to want to know the format your overall project will be mastered on. If you are using NTSC video, you will probably be asked whether you want drop frame or nondrop timecode. Drop frame occasionally skips a frame number to compensate for the NTSC tape speed of 29.976 frames per second; nondrop assigns a frame number to absolutely every frame, on a 30-frame-per-second basis, and therefore doesn’t reflect exactly accurate duration. It doesn’t much matter which you choose, but, if given the opportunity, try to be consistent throughout your project. It’s not a big problem for most contemporary editing systems to work with both.

About Video Formats Given the range of formats in which the original materials (or preprint) are likely to be, what is the best format for your own masters (which will be made from those materials)? The answer depends on your overall

ARCHIVAL STORYTELLING

project and its ultimate delivery platform(s). Producers whose final product is meant for the Internet, for downloading to cell phones or iPods, for sharing as a QuickTime file or within a PowerPoint presentation, or for standard definition broadcast will generally be able to order masters of their archival moving image in standard definition video format, such as Sony’s Digital Beta, explained later in this section. Those aiming for theatrical release and now even many broadcast venues (including PBS) may find it necessary to request high definition masters. Technology never stays stable in this field or any other, and so there is a veritable alphabet soup of both working and delivery formats, all of which are continually subject to change. The good news is that the price of hardware drops all the time, and so should lab fees. The challenging news is that the technical details can be overwhelming. Don’t hesitate to ask questions if you’re confused. Seek the advice of your lab, researcher, cinematographer, or postproduction supervisor before making equipment commitments, and ascertain that your editing system can handle the format(s) you select. Consider your entire workflow, including shooting, editing, archival transfers, and postproduction; it’s almost always best to be consistent in format all the way through. There is no right or wrong; it’s just a matter of compatibility and of the image quality you can afford.

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Standard Definition BetaSP, VHS, 3/4-inch U-matic, and earlier formats are analog; Digital Beta (informally referred to as DigiBeta), BetaSX, D-1, HDV, miniDV, and some DVCPRO formats are digital. However, these are all standard definition (SD), not high definition (HD), systems. When working with any kind of non-HD format, make sure you obtain both screeners and masters in the international standard (PAL or NTSC) you have chosen for your workflow. The choice is usually tied to the country you’re working in, but it can become tricky, say, if you are in North America or parts of Asia and are obtaining archival materials from Europe or Australia, or vice versa. In that case, you or the lab must have conversion hardware to translate between these standards. You can’t order PAL tapes and cut them in with NTSC. There are various types of conversion, and the best are the most expensive. It’s good if you can avoid the cost by acquiring the material in the right standard to begin with. What’s the difference? The differences involve frame rate and resolution. Frame rate is the number of frames per second (fps)

ORDERING WHAT YOU NEED

displayed; resolution is usually expressed in the number of horizontal scan lines. Simplifying a bit, the three standards are: ■

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NTSC video (North America, Central America, and parts of South America) records at just under 30 fps (29.976) and has 525 horizontal (top to bottom) scan lines. PAL video (Europe, parts of South America, Southeast Asia, and Australia) records at 25 fps (the same speed at which motion picture film is shot and projected in Europe) and has 625 horizontal scan lines of resolution. Therefore, it’s a bit sharper and brighter than NTSC. SECAM (France, former USSR, parts of the Middle East, Asia, and Africa) is primarily a broadcast format and not something you are likely to run into. Most SECAM countries are moving toward adopting PAL, and PAL is the default duplication standard at labs in most of these countries.

As high definition takes over around the world, the limitations and technical incompatibilities of PAL and NTSC will apply only to earlier archival video. Film can be transferred to HD for best effect. However, HD does not exist in one universal format, as you might expect.

High Definition There are three primary factors that determine HD quality and compatibility.

Interlaced versus Progressive Standard video, whether analog or digital, is interlaced. This means that each video frame is made up of two fields. In the first field every oddnumbered scan line of the video is displayed. In the second field, every even-numbered line is displayed. Because this process is so fast, the two fields appear to interlace, creating all the information contained in a single frame. Progressive scanning is considered to be an improvement on interlacing. It allows all the information in each frame to be scanned and displayed in a single pass before progressing to the next frame. Because the content in each frame is complete—somewhat analogous to film— progressive scan video more easily migrates to film and makes for a sharper image. Resolution Resolution refers to the number of scan lines. HD is available in formats that display either 720 or 1080 horizontal scan lines, with the

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higher number being significantly sharper. Note that the resolution from left to right may vary, depending on the type of HD camera you use. Consumer and so-called “prosumer” cameras may have less vertical resolution than professional HD cameras (discussed later) and therefore may have some compatibility issues. The combination of the resolution and whether the signal is interlaced or progressive is expressed in this format: 1080p, 720i. You will often see these specifications when shopping for an HD television set.

Frame Rate The final variable, as it was with NTSC and PAL, is frame rate. In Europe, film is projected at 25 fps, while in North America it runs at 24 fps. The four percent difference is barely noticeable, and films shot at either speed can be projected in any country using the other speed with no problem other than a slight change in the overall running time. However, when you’re working in video, these differences between various frame rates become very important. Most of the better HD cameras can record images at a variety of frame rates, as is true with laboratory dubbing facilities. The HD frame or field rate is annotated after the rest of the designation, as in 1080p25 or 720i50. These are often shorthanded: 25p, 50i, and so forth. Note that if a format is interlaced (i), the number representing the frame rate is actually expressed in fields, whereas if the format is progressive (p), the number refers to frames (because fields don’t exist). Thus, 25p represents a progressive image at 25 frames per second, but 50i represents an interlaced image running at 50 fields per second (actually the same frame rate).

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True 24p For theatrical release on film running at 24 fps, you may want to shoot in and obtain your archival masters in what has become known as true 24p (preferably at the 1080 resolution). This oneto-one correspondence to film frames will result in a “film look.” Be careful, however. Confusing things further, HD shot at 23.97 frames (a speed compatible with NTSC) is often shorthanded to “24p” as well. When asking the archive or lab for 24p, make sure you specify whether you mean true 24p (exactly 24 fps to synch with film speed) or 23.97 fps to interact with NTSC. How do you decide? ■

23.97p, or so-called 60i (actually just under 60 fields per second), is generally desirable if your workflow is aimed at an NTSC release.

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25p usually works better for European film release or possibly PAL broadcast. 50i may be preferable for projects involving PAL or finishing on PAL.

Ordering Moving Images from NARA and the Library of Congress

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As discussed elsewhere, the U.S. National Archives and the U.S. Library of Congress are important sources of material, much of which (especially at NARA) is in the public domain. The downside to these large government agencies is that it can take considerable time and effort to get materials from them, whether you’re ordering screeners from a lab (as opposed to something you or your researcher shoots off an editing system in person at the Archives) or whether you’re ordering masters. For this reason, it can be a good idea to avoid going through these procedures twice, and simply request that they make masters up front. Be aware, however, that both NARA and LC, out of concern for preservation, will only copy entire preprint rolls. If you are requesting a master from Archives video to standard definition video for your use, this may not be too expensive, but if you need a master from Archives film to HD or a digital scan, the cost of having whole rolls copied can be prohibitive if the original film reel is long, especially if later the shots get dropped from your film. Instead, you can return at picture lock to get the master you need, or submit the request for your masters as soon as you’ve ascertained that you’ll be using at least something from a particular original reel. If you are working with film or digital scans, you can ask the archive or lab for a screener that incorporates a foot-and-frame count keyed to the archive’s original. The following is the general process for ordering from these two important archives:

National Archives and Records Administration To obtain moving image material (whether a screener or a master to be made from their original holdings) from the National Archives, you or your researcher will fill out an Item Approval Request Form (IARF), which lists the items you want sent to the lab. This form is available on NARA’s website and ours. Within a day or two, you’ll receive the IARF back from the Archives, filled in with the length and preprint format available for each item, along with information about whether the

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material is subject to copyright (in which case it cannot be released without further documentation that you’ve obtained permission). Look at the preprint designation to determine if the quality will work for you; sometimes NARA has various preprint formats, and another one might be more suitable to your needs. For example, if the Archives returns your request form listing a 3/4-inch videocassette as the intermediate for footage you want, and you’re planning to release your film theatrically, you should ask them if they also have a film backup or at least a digital tape backup. (A copy made from 3/4-inch tape is fine for a screener, of course.) Also understand the important distinction between intermediates and preservation copies, noted on the returned IARF with an “I” or a “P.” ■

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Intermediates are always used to make your copy; an “I” on the form means that the Archives has one available—you don’t need to pay to have one made. Intermediates are stored on-site at the Archive’s facility in College Park, Maryland. Preservation copies are the Archives’ primary copies. They are stored in a separate facility in Kansas, and it can take at least a few days for them to arrive in Maryland. If all the archive has is a preservation copy, you will need to pay for a suitable intermediate to be made, and then your copy will be made from that intermediate. The archive keeps the intermediate for the next customer who needs it.

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If an intermediate is available for the materials you want, it will usually take the Archives one to three days to get the material to a lab, and you should get your copy about 10 to 12 business days after that. If an intermediate is not available, the turnaround time will be more, as will your lab costs, so you should hope for a maximum number of “I”s on your returned IARF! The good news is that intermediates are likely to already exist for any well-known news story, for the Universal newsreels, and for runs of several other much-used collections. With preservation copies taking about four days to arrive at NARA, then another couple of days for NARA to get it to the lab, plus the extra lab time necessary to first make the intermediate and then your copy, to be safe, you should figure on 20 business days or more to get your own copy if only a preservation copy exists.

Choosing a Lab When NARA returns your order form (IARF), they’ll send (or you should request) a list of laboratories in the Washington area that are

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authorized to do work for them. It’s up to you to choose one of these labs and then fax or email the completed IARF to the lab. At that point, the lab will provide you with a cost estimate. You must pay this estimate up front, directly to the lab, before the lab will call the items in from the Archives.

The Library of Congress

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The moving image ordering procedure at the Library of Congress is similar to that of NARA. You fill out a form called the Request to Copy Film and Videotape in LC Collections, and return it to the Motion Picture, Broadcasting, and Recorded Sound (MBRS) division of the Library of Congress. Remember that a great deal more of the Library of Congress’s material is under copyright than that held by the National Archives. Obtain any permissions necessary before attempting to order copyrighted material from the Library of Congress or it will just slow down your process. Unlike the National Archives, the Library of Congress has its own duplication facilities, so you prepay them for lab work and the process is handled internally. But the process is not necessarily faster, and it’s still a good idea to obtain your master up front, unless there is a compelling financial reason not to.

Obtaining Still Images and Graphics Many public and commercial archives have at least a large part of their collections available online for searching, purchase, and download. Some of these images are in the public domain, while others are either royalty free (you pay a flat rate for unrestricted use) or rights managed (you negotiate a license for specific use). As described elsewhere, both the National Archives and the Library of Congress have extensive stills collections; increasingly, these are available for online viewing and downloading. Still images that are not already digitized can be viewed and ordered by you or a researcher working at the archive. In addition, be aware that when working at the Library of Congress, high-quality color copiers are available for your use, and using them can result in near photographic-quality reproductions that you can take away with you the same day. Corbis, Getty Images (and their iStockphoto website), AP Images and Culver Pictures, Inc. are examples of commercial archives that offer extensive online collections of still images with a range of licensing options.

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Downloading Images When a digital image is available, if it’s high enough quality, ordering and using it are straightforward: Most current nonlinear editing systems allow the insertion of such digital picture file formats as TIFF and JPEG. ■

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TIFF (Tagged Image Format File) is an essentially uncompressed file that contains more of the information the camera originally “saw” than a JPEG file. Of course, it takes up more disk space. Some commercial archives will only be able to provide a TIFF. JPEG (a format designated by the Joint Photographic Experts Group) is standard output for consumer point-and-shoot cameras, and it’s the format for most of the images you are likely to download from the Internet. Unlike TIFFs, a JPEG image starts out as a compressed file, and will show disintegration as you perform digital processing on it. You can rotate or mirror image a JPEG file without likely deterioration, but as you perform other digital “clean up” on it, it will begin to pick up noise (visual distortion such as graininess, color artifacts, and other anomalies). A high-resolution JPEG image of an 8  10 or larger original that is not heavily manipulated prior to use is generally fine to use as a master.

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Ordering Stills Offline Many archives, such as historical societies and public libraries, are not able to provide a high-resolution scan, or the list of images available digitally may be small. Instead, they will offer to make you a physical print or transparency. If you subsequently scan that image at high resolution, it can often produce better results than a low-resolution digital file would. ■

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Prints tend to be custom made, and so the cost to you will vary widely. As a rough gauge, prints made from historical societies, libraries, and other smaller archives will likely range from about $25 to $100 per image (with $50 per image being a good average). In most cases, you will be asked to return the print, although occasionally you are allowed to keep it. Larger museums are more likely to provide transparencies of fine art, which they lend for a period of time (say, three months) and expect you to return it or pay a penalty for replacement. Museums may charge upwards of $350 per transparency.

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Scan Resolution

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Once you have prints or transparencies in hand, it’s up to you to scan them at an appropriately high resolution. You may get this done at a digital photo lab or other commercial house, but it may be less expensive to do it yourself. If you buy a scanner, make sure it’s capable of working with transparencies as well as flat art and of outputting a high enough resolution to one or more of the file formats accepted by your editing software. While a low-resolution scan is fine (and recommended) for rough editing, “high enough” for purposes of a master scan (standard video) means 1200  1200 pixels per inch (ppi). If you’re creating an HD television show, or if you’re planning to make a high definition digital intermediate for theatrical (film) release, you’ll want a scanner capable of even higher resolution (perhaps 4800  9600 ppi). While these figures allow for some camera movement and zooms on the stills, you should be aware that the size of the original (especially), but also the resolution of your scan are both factors in how much movement will be acceptable. A scan of an 8  10 photo at 300 ppi may be sufficient for a full-frame NTSC or even PAL program if that’s all you can get. Disk space is cheap; if it’s under your control, scan at 150 ppi or even 72 ppi to offline edit with; scan as high as possible for your final master.

Improving Scans Whether you’re scanning from a print or a transparency, you can use software such as Photoshop and Corel Draw to improve the resulting image quality by adjusting brightness, contrast, or color saturation, and by correcting flaws or damage in the original image. Some scanners include software like Digital ICE, which uses complex algorithms to do sophisticated restoration during a scan. Remember that a JPEG file can tolerate these adjustments much less than TIFF files can. If your system is calibrated, what you are seeing on your computer monitor will be consistent with what ends up in the final show. If not, you may have to do some color, contrast, and brightness correction later on. Look out for any journalistic and/or ethical issues that arise with digital image processing: Cleaning up or restoring an image may be okay; manipulation or distortion may not be.

Shooting Moves on Still Images After you have a high-resolution master image, you can go to any one of a number of postproduction houses and ask them to create digital

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moves for you and output a file you can insert into your cut. If you want unusual moves and special effects, and you have the budget for them, a digital graphics company may be of use. Edgeworx, for example, is known for a variety of cutting-edge effects, such as breaking still images into digital “layers” and creating independent moves for each layer. Films that have used their services include The Kid Stays in the Picture and Operation Homecoming: Writing the Wartime Experience.

Ordering Graphics, Maps, and Newspapers In most cases, graphics (political cartoons, published maps, 19th century news illustrations, and the like) are researched and obtained exactly as any photograph would be. If you hire an artist to create maps for you, they will most likely use digital animation, unless you want a hand-drawn “look” and your budget can support it. In most cases, the equivalent to camera moves will already be incorporated into the animation. 109

Newspapers Obtaining newspapers (pages, headlines, and such) can pose an interesting challenge. Most libraries in large cities have vibrant newspaper collections, either on microfilm or in bound volumes, although the latter is usually more likely for magazines. When you’ve researched and identified the issue and page number you need, you can make a positive copy from that microfilm page using a printing microfilm reader. Many filmmakers do this, at least to offline edit with. But library microfilm is often quite scratched. You can usually obtain a clean photographic copy of the page(s) you need by contacting ProQuest, a company that handles digitization of more than 7000 newspapers from around the world. ProQuest maintains a database of its holdings, which allows you to search by subject, section, and locale; to compare coverage of the same event by different newspapers; or to browse an entire newspaper on a date of your choosing. You or your library must pay an annual subscription for these database services, but they can provide a valuable research tool. You don’t need a subscription to order prints of pages if you know from library research exactly what you need; just be sure to allow about five weeks for delivery. You can expect to pay about $50 to $80 each for prints, depending on the size you want.

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Ordering Moving Image Masters So far we’ve discussed ordering moving image screeners and, where practical, ordering moving image masters from the two major U.S. public archives. In this section, we look in general at the process of ordering moving image masters from one or more sources of material. As much as possible, you don’t want to leave decisions about mastering formats up to the archive or lab; instead, you and your distributor need to understand what material you’re getting and in what format, because it can have a significant impact not only on your budget but also on the visual and technical quality of your finished film.

Ordering From the Web

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As with stills, ordering moving images from a website can be quite simple. Purchase a CD or DVD of a collection of royalty-free clips if you used several, or buy a single clip after previewing your purchase online. (Artbeats and DVD/HD Cuts are examples of royalty-free online archives that allow you to purchase clips or collections.) When you’ve made your final selection and are comfortable with its technical quality, you can simply order online or by phone and pay the fee by credit card. The clip will either be made available to you for download or sent on disc or tape. ■

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If it’s royalty free, the supplier should also furnish you with a blanket license, or your rights to use the material may be simply spelled out on an invoice form. If you don’t receive paperwork that includes language about your right to use the footage, request a general license agreement that covers most or all uses. If it’s not royalty free, but rather rights managed, you’ll need to obtain a specific license agreement. Blue Sky Stock Footage is a good example of a rights-managed supplier of online, downloadable clips, and many of National Geographic’s and Oxford Scientific’s clips are rights managed and downloadable digitally.

Ordering Video Masters from Archives If you aren’t downloading your moving image clips digitally, you’ll probably receive them on some type of videotape (unless you are working entirely on film; see the note at the end of this chapter). What’s best depends on what your plans are for post and finishing, or what your distributor(s) demand. Sometimes it may simply depend on what the archive can make available to you, or what equipment you have available

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to you, at what price. There are some overarching decisions you should make based on these factors and the technical information we covered earlier in this chapter.

HD or SD? As we discussed, you want the format you request for your masters to be compatible with your overall project. For some projects, standard definition is fine. For others, including those aiming for theatrical release (and, increasingly, broadcast) HD masters are preferable.

Aspect Ratio If your head isn’t exploding already, there’s one more thing you need to think about when ordering masters: aspect ratio. This is the relationship between the top-to-bottom height of the frame and its left-to-right width.

Video Aspect Ratio Video aspect ratios have evolved from film aspect ratios. When dealing with video, there are essentially two aspect ratios on which you are likely to finish. ■

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Standard televisions that preceded the digital age have a relatively square aspect ratio, 4  3, which is approximately equivalent to almost a century of films in 35 mm and 16 mm. Most SD videotape is shot in 4  3 ratio. HD is a wide screen, 16  9 aspect ratio, similar to many current theatrical films. Some SD cameras can also be set to record in this aspect ratio.

Motion Picture Aspect Ratio The various shapes and sizes of theatrical motion picture film used throughout the world over the last 120 years make the aspect ratio issue more complex than simply choosing between these two shapes for your project as a whole. Aspect ratio standards in the United States are set by the Academy of Motion Picture Arts and Sciences (AMPAS). When expressing film aspect ratio, the first number refers to height— which is always set to 1—and the second is the horizontal width in a ratio to 1. Because the 1 is consistent, filmmakers frequently use the second number alone to describe aspect ratio. An aspect ratio of 1:1.33 (just a bit wider than square) is known as 1.33 (“one three three”), 1:1.85 is simply 1.85 (“one eight five”), and so forth.

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In the United States, much 20th century film up until the mid1950s was shot in the aspect ratio of 1.33 or 1.37, which roughly conforms to the 4  3 standard television rectangle. In the 1950s and 1960s, films started taking on wider aspect ratios in an attempt to compete with the popularity of television. Common aspect ratios in that era were 1.66, 1.85, and 2.35 or 2.39 (very wide-screen formats such as Cinemascope and Panavision). Cinerama, a system that used three cameras and three projectors to create an image on a curved screen that took in the audience’s peripheral vision, was shot at 2.59 and ideally projected at 2.65. Starting in the last decades of the 20th century, AMPAS settled on a compromise point between “flat” 1.37 and “wide” 2.35 with the 1.85 format that has now become the de facto standard theatrical aspect ratio. It’s not a coincidence, then, that 16  9 (which is close to the 1.85 shape) has become the standard for HD and newer widescreen digital televisions; this way, contemporary theatrical films can be watched in their proper aspect ratios. Many filmed television shows are now delivering in and being broadcast in 16  9 as well. 112

Taking Aspect Ratio into Account What does all this mean for a filmmaker trying to use archival moving images created with a range of aspect ratios? Let’s assume you need to deliver your project for broadcast in HD (16  9). If your archival materials are in HD or 1.85 film, you’re all set because both already closely match your 16  9 aspect ratio. Things get a bit more complicated when you mix older 1.33 or 1.37 material in 16 mm or 35 mm, or old 4  3 television shows, or if other standards like 1.66 or 2.39 come into play. When films wider than 1.37 are presented full screen on a 4  3 television screens, the picture fits top to bottom but extends beyond the left and right frames of the set, so viewers miss some content. ■

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Letterboxing shrinks the entire original frame width so that no content is lost, but viewers see black bars at the top and bottom of the screen. Conversely, filmmakers seeking to cut older 1.37 or 1.33 images into a 16  9 show may choose to pillarbox the image, which maintains the full original image but leaves black bars to the left and right of the screen.

There’s another choice if you are using a lot of flat 1.37 material, which is to shoot all your original in the square format to match. The advantage

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is consistency. But your distributor or broadcaster may not be willing to accept a 4  3 rather than a 16  9 show (or a 1.37 instead of a 1.85 theatrical film release). Most modern movie theaters can no longer project 1.33 or 1.37, although some art houses can.

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The three most popular aspect ratios. To retain visual information, pillarboxing is used when presenting 4  3 on a wider format medium, and letterboxing for fitting a wider format into a 4  3 frame.

How Should You Decide? When you are ordering the master, you should always get one that maintains the correct original ratio. It’s the only way that you’ll be able to see and have access to all of the content information in the frame. As always, be careful of the nomenclature. If you ask the lab for a “full frame” master, they are likely to make it full frame to the aspect ratio they’re going to, not that the material is coming from. This means that if there is a difference in aspect ratio, the lab—and not you—will crop either the sides or the top and bottom; in other words, the lab will make any decisions about what content to include and eliminate. Unless you are there to supervise, you are much better off getting the entire image content from them. Later, in postproduction, you can decide how you want to present the material in final form.

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How you treat aspect ratio in your finished film is a personal decision, based on ethical and aesthetic considerations. It can be a choice between not losing content information and, in some cases, having frequent shifts back and forth between full frame, letterboxing and/or pillarboxing.

When You Want 35 mm Prints

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While digital projection is increasingly possible in theaters and at film festivals, as a general rule, full theatrical release still requires a 35 mm print. But with just a few exceptions, most filmmakers, even those working in Hollywood, do most of their production digitally (even if they shoot on film) and then get back to a 35 mm release print through a digital intermediate (DI). This is a computer file that contains the whole film, finished, timed (color corrected and adjusted for saturation, contrast, and such), and in super-high resolution. The DI is then “printed” back to raw 35 mm film stock for theatrical projection in nondigital theatres. A benefit of working with digital intermediates is how well you can time your visuals, make everything look consistent, or even give a scene (or entire film) a particular look. You can create a pristine final product from what might have started off as a crazy quilt of original source material.

Ordering Masters for a 35 mm Release If you know at the outset that you’ll be making a digital intermediate as a means of getting to a 35 mm release print, you can order archival masters in appropriate formats, maintaining the highest possible quality. When dealing with archive original that is video: ■

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If the archive original is digital video, obtain your archive master either on true HD 24p or a digital format you can up-res (move up to a higher resolution) to HD at your own lab. If the archive original is analog video, get it up-res’d by the archive to some digital format (so you don’t lose generational quality) and work with that in post. This is the least desirable option, but sometimes you have no choice.

If the archive original is film, the steps are a bit different, and the resulting quality is likely to be better. ■

Get screeners on VHS or DVD, look at the footage, and make a broad preliminary selection of the material you are interested in.

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Ask the archive to release the film materials for these preliminary selects to a lab to be transferred (if you can pick the lab, even better). Have the lab transfer the film to a timecoded digital file for you (or alternately, a digital tape capable of handling machine-readable timecode). We’ll call this a submaster. The lab should generate new timecode and also burn in three small windows, with their timecode (set at 0), an archive ID and reel number, and the exact film feet and frames from a clearly marked start point at the head of the film original. (We suggest the feet-and-frames burn in, assuming that the archive’s original film doesn’t have machine-readable key codes. This is true of film manufactured earlier than the 1980s. If it does, however, great! Burn in the key codes instead.) Have the film returned to the archive (ask the archive to hold it aside, unless they let you or the lab hold it). Edit with the submasters, lock picture, and report to the archive (as previously discussed). Pay your license fees and get the archive to deliver to the lab all necessary film reels to cover only the material you used in your final cut.

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The lab should make a digital scan of the exact frames you need, based on exact cues you can give using either the feet and frames or the machine-readable key code. A full-aperture 2 K scan for 16 mm and a 4 K scan for 35 mm are recommended, although a 2 K scan for 35 mm is usually acceptable, especially for archival material. Frame scanning is an expensive process (at present, roughly $30 per second for 2 K scans and $38.50 per second for 4 K scans), so many filmmakers run tests before making a decision.

Ordering Masters for a Film-Only Project There are filmmakers today who still shoot, edit, and finish their projects on film, rather than do all or significant parts of the process on video or digitally. We don’t recommend this for anyone wanting to incorporate archival motion picture in their work, even if the archival was originally shot on 8 mm, 16 mm, or 35 mm film. It is often significantly easier (and cheaper) to acquire these materials on analog or digital video, and it has been for at least two decades. At the book’s website, however, we’ve posted details for those who are determined to work solely on film.

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CHAPTER 8

Creative Considerations

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As soon as archival materials existed, there were filmmakers waiting to make innovative use of them. In the 1920s, for example, editors such as Esther Shub, working in Soviet kinofabriki (“film factories”) created compilation documentaries out of reality footage, often in tribute to a recent historic event or celebrated individual. There is a direct line from this early employment of archival materials to today’s diverse uses, from feature films to mashups, from museum installations to self-referential postmodern statements. There is no single way to creatively or authentically use archival materials, even in historical storytelling. At times, in fact, an exaggerated focus on “the real thing” may detract not only from the quality or appeal of a film but also from its truthfulness. Conversely, nothing precludes the use of archival materials, whether from the recent or distant past, in vérité, essay, or other non-historical work. And finally, the use of archival materials is not restricted to high budget, high profile projects. With ingenuity and creativity, even filmmakers working truly independently, with little or no funding, can and do use third-party materials. In this chapter, we look at some creative ways in which filmmakers have used archival materials—documents, newsreels, news footage, advertisements, music, even soap operas—in their work.

Social Issue Films Jan Krawitz

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Jan Krawitz is an independent filmmaker and professor, and director of the MFA program in Documentary Film and Video at Stanford University. All of her films have been made on low budgets, and all but one used archival footage. They include the award-winning Little People (1982), Drive-In Blues (1986), Mirror Mirror (1990), In Harm’s Way (1996), and Big Enough (2004), which revisits some of the individuals first introduced in Little People. Retrospectives of her work have been held at venues including the Portland Art Museum, the Austin Film Society, and the Ann Arbor Film Festival. In an article for the Stanford Humanities Review and in conversations with us, Krawitz describes her process for finding and using archival materials for films including Little People, a documentary about dwarfs. She says she began with newsreel collections, in part because of the broad range of dates available and because newsreel stories often focus on “quirky” characters. While she discovered “interesting and often demeaning stories about dwarfs” in two collections, Universal and MGM-Hearst Metrotone, she limited her acquisitions to the Universal collection, which is housed at the National Archives and is in the public domain. From that collection, she selected two newsreel stories. “One clip depicted the first convention of the national organization of Little People of America (LPA) held in Reno in 1957,” she writes, which offered a historical context for the 1981 LPA convention, a focal point of her film. The second newsreel story depicted a group of dwarfs in a circus setting as they held a tea party with elephants. Krawitz used the tea party footage alongside an interview she conducted with Marie Raabe, an elderly woman (and dwarf), who discussed her travels with a “midget troupe” in the 1930s. The footage doesn’t show Raabe in particular, nor the troupe in which she was involved. But Krawitz says she chose the story because it amplified Raabe’s experience as a teenager, when she refused to join a circus. The newsreel was “quite pointed in illustrating why she had antipathy towards the idea of joining a circus in which ‘midgets’ and dwarfs were typically cast in demeaning roles,” Krawitz notes. She did not use the newsreel soundtrack, but instead replaced it with calliope music. “The narration that accompanied the newsreel story was jocular in tone and focused completely on the antics of the little people and the elephant,” she explains. “It disrupted the narrative of Marie’s story. It should be obvious to the viewer that this was not the original sound from the newsreel but that the images have authenticity.”

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Scene from a 1936 Universal newsreel story, as used in Little People. Image courtesy Jan Krawitz.

Little People also includes an interview with Meinhardt Raabe, who played the coroner in the 1939 classic The Wizard of Oz. “On camera, he shows us his scrapbook and breaks into the dialogue that he performed” in the film, Krawitz says. “It would have been a wonderful edit to cut from that backyard rendering (more than 40 years later) to the original recitation in the film.” However, she presumed the licensing fees would be prohibitive, and ultimately was glad she didn’t pursue the footage. “We were forced to look further and discover the 1938 anticlassic, often included on the ‘10 worst films of all times’ lists, The Terror of Tiny Town,” she says. The film’s copyright had lapsed in 1966 when the owners failed to renew, so it was in the public domain. “It’s a less obvious choice than The Wizard of Oz,” Krawitz adds, “and therefore subverts expectations on the part of the viewer.”

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Experimental and Art Films Increasingly, archival footage and stills appear in television commercials, mashups, collages, museum installations, and other new works. As archivist Rick Prelinger notes, “Many younger makers don’t work with stories as older makers do. They remix and recombine fragments from many sources in real time. The notion is that there’s a dynamic, living collage that’s going on, that’s shared; it’s communal.”

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A major source for this type of work is found footage. Found footage is moving image material acquired through various nontraditional means. Perhaps it’s found in the trash or acquired from or traded with private collectors who specialize in obscure material, such as old educational films or unusual film memorabilia. The copyright may have expired or the rights holder may be difficult or impossible to locate. Although it can be risky, filmmakers using found footage sometimes pursue a philosophy (borrowed from the technology arena) of “asking forgiveness” for unauthorized use rather than “asking permission” for use beforehand. In some cases, even if the rights holder does come forward, the new use of the material may be sufficiently transformative to be protected as fair use.

Jay Rosenblatt

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An example of a filmmaker who relies heavily on found footage is Jay Rosenblatt, based in San Francisco. Internationally known for his work in both documentary and experimental film, Rosenblatt has received fellowships from the Guggenheim and Rockefeller Foundations. Before becoming a filmmaker, he earned a masters degree in counseling, and this training is evident in much of his film work. Using archival both as a textural element and as rich metaphoric material, Rosenblatt’s work touches on universal themes; his films are often mysterious and poetic. He cites French filmmaker Chris Marker as an influence. Marker’s work includes the film La Jetée (1962), which he called a “photo-novel,” and Sans Soleil (1983), an essay in film about the unreliability of memory, the power of random objects and places, and the elasticity of time. Rosenblatt relies for much of his imagery on the optical printer, a device that allows a piece of film to be duplicated and, if one wishes, manipulated. It can double- and triple-print frames to slow down action, and it can crop, superimpose, change orientation, and create other types of distortion. “At least in my early collage films, there’s a lot of manipulation of speed and cropping of images,” Rosenblatt says. “Part of what was exciting to me was to take something and really kind of transform it, not just through editing and recontextualizing, but also through actually manipulating the frames.” The Smell of Burning Ants (1994) explores what it means to grow up male and the social forces that influence boys and men; it uses footage from 1950s social behavior films and old nature photography. A sort of companion film, Period Piece (1996), referenced in Chapter 2, incorporates old educational and advertising materials in its exploration of menstruation. Rosenblatt’s film Prayer (2002), an answer to the events

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of 9/11, consists of old archival footage—much of it slowed down—of all types of prayer from religions around the world. The film contains no dialogue; the images are accompanied only by the elegiac music of Nikolai Rimsky-Korsakov. Afraid So (2006), from a poem by Jeanne Marie Beaumont, features a voice-over narrator (Garrison Keillor) asking a series of questions—Could I lose my job? Is this going to hurt? Will this go on my record? Was anyone injured? Are we lost?—each of which is “answered” by roughly a second of silent archival footage. Rosenblatt’s best-known film is the award-winning Human Remains (1998), in which he pairs found footage of Adolf Hitler, Benito Mussolini, Mao Zedong, Francisco Franco, and Joseph Stalin with a soundtrack of constructed diary entries based upon factual biographical information.

Dramatic Features When filmmakers think of archival materials, they tend to think first of documentaries. But many dramatic features include archival materials, especially when they are period films, which take place in a noncontemporary time.

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Good Night, and Good Luck Directed by George Clooney and released in 2005, Good Night, and Good Luck follows television journalist Edward R. Murrow (played by actor David Straitharn) through his 1953–1954 on-air battle with Wisconsin Senator Joseph McCarthy. Archival materials from Murrow’s shows and others of that era figured in creating a realistic sense of time and place. They play on monitors in the CBS News studio control room (as recreated by the filmmakers) and provide background images and sound in other scenes, such as when characters are watching television at home. Clooney decided not to cast an actor as Senator McCarthy, and instead allows Murrow’s foe to appear as himself, exclusively in archival footage. This also mirrored Murrow’s technique of letting McCarthy hang himself with his own words. In researching visual materials, the project team hoped to find the same 35 mm roll-ins that Murrow’s crew had used in the original live See It Now broadcasts. (These film segments were “rolled in” as the studiobased program was broadcast.) A CBS archivist retrieved boxes of production materials that had been stored 50 years earlier, after the original broadcast, but the rolls-ins could not be found. Ultimately, kinescopes (a film record of the program as broadcast live) were acquired of the relevant episodes. Along with kinescopes of other program elements,

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such as Alcoa and Kent commercials, these were transferred to HD tape, and the sound was separately, digitally restored. Both images and sound were then sent to Los Angeles, where Peter Phillips, the film’s postproduction supervisor, and the staff at Technicolor timed the HD and, marrying back the sound, perfected the material for the digital intermediate. The sitcoms, soap operas, and other programming that appear on television monitors in scenes of Good Night, and Good Luck were transferred from 16 mm prints obtained from a collector. To save money and rights-clearance hassles, only public domain television shows were used for background monitors, but they were from the exact year and even the correct time of day. This material was transferred to DVCAM and run live on the set (on monitors) at 24 frames per second, to synchronize with cinematographer Robert Elswit’s 35 mm camera.

The Good German

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Director Steven Soderbergh’s 2006 film takes place in Berlin during the Potsdam Conference of 1945, and he wanted the film to look and sound like a film made in the 1940s—particularly Casablanca, directed by Michael Curtiz. As with Good Night, and Good Luck, camera footage was shot in color, but the film was always designed to be finished in black and white. Cinematography was monitored on set in black and white, and the digital rushes were in black and white. A team of researchers spent three years delving into collections worldwide: the U.S. National Archives and U.S. Library of Congress (Washington), Mosfilm and Krasnagorsk (Moscow), the Imperial War Museum (London), the Bundesarchiv (Berlin), Établissement de Communication et de Production Audiovisuelle de la Défense (Ivrysur-Seine), and the U.S. collection of Deutsche Film-Aktiengesellschaft, the distributor of East German films (housed at the University of Massachusetts Amherst). Art department member Joanna Bush served as production archivist, designing a unique database system that linked DVDs of visual material to an onscreen map of Berlin. Soderbergh and the designers could navigate the map, mouse click, and instantly see moving images and stills taken in 1945 in the precise area of the city they’d pinpointed. Archival was used for a variety of purposes. Through a digital greenscreen, which mimics process projection, a technique from the golden age of Hollywood, archival images of old Berlin became a background for actors in exterior scenes and offered a point of view through vehicle windows. Archival footage was also used as full-frame cutaways. These images helped to establish Berlin in general and to realistically convey,

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Frame grab from The Good German. The Hollywood set recreates 1945 Berlin as documented in old footage and photographs.

for example, that characters were in the midst of the actual press corps at the Potsdam Conference. Archival footage and still photographs also guided the art department in recreating, on two backlot sets at Universal Studios, sections of bombed-out Berlin exactly as it appeared in the spring of 1945. Stills from the Imperial War Museum and elsewhere aided costume designers, who also obtained authentic period clothes from Berlin.

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Historical Documentaries Even within the range of documentaries described as “historical,” the use of archival materials varies widely. Are archival images presented as visual evidence of the past, in which case strict adherence to time and place must be paid, or do the archival images invoke the past in a more general way? Did an important or interesting event occur for which there is little or no photographic coverage, and if so, how does a filmmaker tell that story? (Certainly the presence or absence of visuals should not dictate which stories are told.) If music is used, is it considered to be historical evidence, or do the filmmakers want to push the boundaries of chronology, using music that is noticeably anachronistic? In Chapter 9, we speak with Geoffrey C. Ward, who has written or co-written many of director Ken Burns’s productions, including The Civil War, which broke all previous viewing records when it aired on

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American public television in 1990. These films observe a fairly consistent form, in which archival images and sound are augmented through on-camera interviews and the off-camera presence of period voices as culled from letters, diaries, newspaper accounts, and other records, and spoken in voice-over by actors. While this style has become very popular, it is certainly not the only way to tell an archival history. What follows are a few other examples.

Blackside

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Founded and led by the late Henry Hampton, the Boston-based Blackside, Inc. is best known for its groundbreaking history of America’s civil rights movement, Eyes on the Prize, which was created and aired in two parts. The first six hours, subtitled America’s Civil Rights Years, 1954–1965 (broadcast in 1987) follow the southernbased civil rights movement through to the passage of the Voting Rights Act of 1965. The remaining eight hours, America at the Racial Crossroads, 1965-mid-1980s (broadcast in 1990), take events beyond the South and explore a complex period of history that includes the assassinations of Malcolm X and Martin Luther King, Jr., the rise of the Black Panther Party, the Black Arts movement, and more. Roughly 60 percent of the series’ imagery is archival, intercut with filmed interviews with individuals who participated in the history depicted on screen—no scholars or other experts appeared if their experience was not firsthand. The ethical guidelines for the use of archival material in Eyes were informed by a prior production, the 13-hour documentary Vietnam: A Television History, which aired on PBS in 1983. (That series, in turn, borrowed guidelines from the meticulously researched 1973–1974 Thames Television series, The World at War.) Production on Vietnam had begun in 1980, when the war was still recent (Saigon was evacuated in 1975) and highly controversial. Vietnam’s production team strove to be transparent in their filmmaking, adhering to the facts as they were reasonably agreed upon and embellishing nothing. In the series as it was released, there was no added music (other than in the opening and closing titles) unless it came from a source captured on film, such as a soldier’s transistor radio. There was no image manipulation: no slow motion or added special effects, for example. Sound effects were only added to silent archival footage if they related to items, such as weapons or aircraft, that could be seen onscreen. (Try playing a range of soundtracks under the same images, and you’ll be amazed at what a difference sound makes to your perception of what you’re seeing.)

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Use of Stories Rather than create a sweeping survey of the civil rights era, a period of roughly 30 years, the producers of Eyes on the Prize selected two to three stories per broadcast hour, which were linked thematically within the hour and, as a whole, advanced the series’ overarching chronology. Each story was structured, to the extent possible and only as it aligned with responsible history, as a three-act drama, with characters, conflict, rising stakes, and resolution. The archival images, when sufficient material was available, drove the storytelling. This means that rather than using a shot here and there to illustrate interview bites or narration, scenes were created out of archival material, to allow for visual storytelling that was then punctuated by the interviews. Narration was added last, as needed, to pull the other elements together. Rigorous Fact Checking As with Vietnam, every word spoken onscreen in Eyes was fact checked, whether spoken by the narrator, an interviewee, or someone in archival materials. The archival materials themselves were also fact checked, to be sure that they’d been properly cataloged; materials from a variety of sources were used to ensure more complete and accurate coverage of an event.

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Use of Period Music Unlike Vietnam, Eyes is filled with period music, captured not only in old footage—sync coverage of protesters singing “We Shall Overcome,” for example—but also added by Blackside’s editors, adhering to a rule that it had to reasonably reflect what participants at that time might have listened to. In addition to traditional songs that fall under the public domain, the 14-hour series included about 130 pieces of copyrighted music. While this meant considerable expense, it was a decision that reflected the critical role participants and scholars agreed that music had played in the history being told. (The initial licensing of some of this third-party material, both music and visuals, was time limited, which meant that the series went out of distribution once these rights expired. For details, see Chapter 11.)

Middlemarch Films Founded in New York 30 years ago by filmmakers Muffie Meyer and Ellen Hovde, Middlemarch’s credits include more than 100 documentary films and videos, for which they’ve earned an Academy Award

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nomination, two Emmys, the Columbia-duPont Award, the George Foster Peabody Award, and recognition from film festivals in Europe, Asia, and North America. While their work is not solely historical, Middlemarch has gained a reputation for its historical film storytelling using a variety of approaches, including the use of archival materials (for a story on the stock market crash of 1929) and anachronism (such as imagining television news coverage of the ratification of the U.S. Constitution). Middlemarch is perhaps best known, however, for its innovative casting of modern-day actors to portray historical figures on screen, as they did for Alexander Hamilton, a two-hour special; Benjamin Franklin, a three-part series; and Liberty! The American Revolution, a six-part series, all for PBS. Dressed in period costumes, the actors appear to be “interviewed” in period settings, when in fact they’re filmed at a studio. High-resolution slides of historic locations (such as interiors of 18th century homes) are projected behind each actor, and careful set dressing and lighting creates an illusion of space and unity. In addition, the filmmakers create limited but vibrant exterior footage as needed. For Alexander Hamilton, for example, they combined computer technology and live action shooting (in Alexandria, Virginia) to create “B-roll” of a New York City street as it might have appeared in the late 18th century. (See Part 4 for links to videos showing this process in action.) The idea behind this style, which was inaugurated with the 1997 series Liberty!, was to “bring alive the words and the ideas and the experience of the historical event,” says Ronald Blumer, who wrote all three films and co-produced Alexander Hamilton. “The participants in this movement of history, or in any movement of history, didn’t know what was going to happen next: There is nothing inevitable about it. In the case of the American Revolution, the only thing inevitable was that the Americans were going to lose and the British were going to win.” The principals at Middlemarch experimented with limited use of dialogue, with actors interacting based on period transcripts, “but it just didn’t work,” Blumer says. “So we decided to go for this very stark direct dialogue method.” The actors are filmed alone, speaking directly to camera. “They’re talking to us, and they’re telling us what they’re thinking, what they’re feeling at the time,” he says. “It’s like a Shakespearean monologue.” Creating a script that’s heavily based on period documents, according to Blumer, involves not only extensive reading of primary and secondary documents, but also detailed exploration of footnotes. “So if [a reference says] ‘he’s feeling this’ or ‘he’s doing this,’ I want to know how exactly they know that, what is their source, and then I trace back their

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Actor Bryan F. O’Byrne on set as Alexander Hamilton. The background is projected from a large-format transparency. Photo courtesy Middlemarch Films.

sources. Frequently, it’s a gold mine; I find—and I don’t know why it is—that the most interesting things are not used.” Blumer has found this to be the case even with books that purport to be transcripts of actual events, such as meetings or trials. While researching Benjamin Franklin, Blumer explains, “I went to a book that purported to be the complete transcript of all the letters and dialogues and everything concerning the peace treaty in France, with the final negotiations to end the American Revolution. I noticed that there were a few [ellipses]. And so I went to an even more primary source and found that the person who was putting together this book didn’t think that something was

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important because it was basically emotional. Of course that’s what one wants in the film.” In compiling a Middlemarch film, director Muffie Meyer and the team focus on three major elements: the primary source material, the scholars whom they interview, and the narration, written by Blumer as a last step during the editing. Surprisingly, perhaps, Blumer says that it’s the scholars, not the visuals, that are most likely to change the script. “I don’t consider television a visual medium—I consider it a story medium, and that’s really what I focus on,” he explains. “It’s the ‘what happens next’ that makes people watch—not what they’re seeing on the screen, but the story.” After a script is written (and it generally does not include visual information), the scholars are interviewed on camera. The interviews are edited against “slop” footage, with stand-ins for the actors (and temporary narration). “If the scholars seem to be pushing the film in a new and different direction that I didn’t think of, that’s great. We’ll change the film by finding supporting [historical] quotes and supporting visuals.” The “interviews” with actors, the most expensive part of the process, are filmed last, when the selection of characters and the documents from which they’re speaking are all but finalized. 128

Archival Footage As noted, Middlemarch begins production on programs such as Alexander Hamilton by shooting interviews, and at a later point films the “B-roll” material, such as live action footage simulating 18th century New York. The company also licenses footage of larger and more ambitious reenactments, such as battle scenes, from other production companies. How does the team at Middlemarch know whether those are of high enough historical quality? “We’re reacting to it as an audience would react, in terms of looking at it and saying, ‘Hey, this is good. This works,’ ” Blumer says. “A lot of recreations that other people do aren’t so good. Sometimes we blur it so that you don’t quite see the details.” For Liberty!, the team found that a dramatization of the Battle of Yorktown, created by the U.S. National Park Service, was “really terrific,” Blumer notes. “So, great—we don’t have to shoot Yorktown. We just plugged it in.” Period Visuals Middlemarch relies on period drawings and artwork, much of which was created not in the 18th century but later, offering a sometimes romanticized or politicized view of events. The filmmakers at times include these distortions in their story line. “In one film, we show the painting of the signing of the Declaration of Independence, and have

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the scholars saying quite specifically, ‘ That’s ridiculous, that never happened. It was commissioned by Jefferson to up his reputation.’ So sometimes the artifact and the nature of the artifact become part of the story.”

Updating Period Documents What liberties does Blumer take when breathing life into primary documents, which were written to be read but now must be spoken? “When I’m watching other historical films, I’m very uncomfortable hearing people mouth stuff that’s obviously written,” he says. “It just doesn’t seem real, and the important thing is that the audience has to believe that the people are experiencing and feeling what you’re hearing. If it sounds as if they’re reading something, it just doesn’t work.” To compensate, Blumer will rework period documents, adding contractions, replacing references nobody will understand, and even giving modern meaning to outmoded words. “Our language has changed, what did they actually mean by saying that? So I’ll look it up in Samuel Johnson’s 18th century dictionary, and give a modern meaning to the words. Translate it. But I can always justify every word with a source.” 129

The Range of Archival Use The handful of films examined here are just a beginning. Consider some of these other ways that filmmakers employ third-party materials: ■

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In creating The Thin Blue Line (1988), a powerful exploration of evidence and memory (and a film that helped to set a wronglyconvicted man free), filmmaker Errol Morris interweaves archival materials (newspaper stories, courtroom sketches, and more) with stylized recreations in which he visits and re-visits a series of fateful events as seen through the eyes of witnesses, many of whom are obviously unreliable. The dramatic feature Milk (filmed in 2008) is based on factual events leading to the 1978 murder of San Francisco supervisor Harvey Milk (played by actor Sean Penn). To more authentically recreate that unique time and place, director Gus Van Sant mixes archival footage with principal photography shot in “re-dressed” areas of San Francisco—most notably Castro Street. In his political satire science fiction film, Spectres of the Spectrum (1999), found footage “guru” Craig Baldwin collages early television kinescopes with quotes by Samuel Morse, Philo T. Farnsworth, and others to tell the futuristic (2007) story of a

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Las Vegas woman and her father, who try to save the world using their Airstream trailer as a rocket ship. In the credits to Fahrenheit 9/11 (2004), filmmaker Michael Moore cites 61 sources of archival footage and stills. These include clips from the popular series Dragnet and a parody of Bonanza. Moore also uses the distinctive theme music from these shows, as well as news and talk shows, ephemeral materials, military recruitment ads, corporate videos, and more. To tell the story of 1970s radicalism in The Weather Underground (2003), filmmakers Sam Green and Bill Siedel use a range of archival materials, from news reports and mug shots to clips from an independent film, Underground, shot in 1976 by filmmaker Emile DeAntonio. Alan Berliner’s Wide Awake (2007) is a tour de force of archival use. A victim of insomnia, the filmmaker uses a dazzling array of archival materials—old advertisements, feature films, news and sports footage, even images taken during his visit to a medical sleep lab—to reveal his state of mind, his dreams, his condition, and more. He also uses material from his own personal archive, with home movies from his childhood and clips from a career as a self-referential filmmaker. Berliner lists three primary sources of footage (Getty, McDonald & Associates, and the National Archives) along with six others.

Each of these filmmakers acquires and uses archival footage, stills, and audio in unique ways, each striving for a different result. Without these materials, even if they form a small piece of the overall film, the project itself might either be diminished or impossible. This is why it’s important to understand the issues surrounding archival use and to take seriously the responsibility of using these materials well.

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CHAPTER 9

An Ongoing Process: A Conversation with Geoffrey C. Ward Apple offers what it calls “The Ken Burns Effect” in its editing software, referring to the technique of moving on still images popularized by Burns and pioneered by such rostrum artists as Edward T. Joyce (The Frame Shop, Newton), Ken Morse (Ken Morse Ltd., London), and others. But something drives those moves, just as something drives each decision about using stills or motion picture, oral testimony, or interview; and the selection of characters and actions that offer an intimate journey through history. That something has very little to do with technology and a great deal to do with story. There are well over 100 names in the credits for Florentine Films’ seven-episode series, The War, a history of the Second World War. Directed and produced by Ken Burns and Lynn Novick, The War was written by five-time Emmy Award-winner Geoffrey C. Ward, who has collaborated with Burns since 1984 and has been the sole or principal script writer for films such as Huey Long, The Civil War, Baseball, The West, Jazz, and Unforgivable Blackness, along with companion volumes. Working with other directors, Ward was also the principal or sole writer of films including PBS’s Nixon, The Kennedys, and Abraham and Mary Lincoln: A House Divided. An independent historian and biographer, his

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other published work includes A First-Class Temperament: The Emergence of Franklin Roosevelt, which was a finalist for the Pulitzer Prize. He spoke with Sheila by telephone in March 2008. Do you find that people completely misunderstand what it means to be the writer of a documentary and presume that you come in at the last minute to write narration? Yes. That’s an unfortunate misunderstanding. What is your process, as storyteller, on a series like The Civil War or The War?

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I’ve worked with other people, very happily. But for a writer, Ken’s process is the freest I know. First of all, Ken has a great advantage in making history documentaries, in that history doesn’t frighten him. A lot of people come out of film school eager to make documentaries, somehow get roped into doing something historical, and then spend the whole time shaking with fear because it isn’t what they were trained to do. The subjects are all dead; you’re trying to find the visual equivalents for things; you’re filming old archives. “How on earth are we going to make this interesting?” Ken, as far as I can see, has never for a moment had that fear. He thinks stories set in the past are interesting in themselves, that they’re about people just like you and me. And since I believe that passionately, too, that’s helped a lot in our working together. But the writing freedom I spoke of is really that we have a sort of general, overall discussion about how long we think [the film] will be. (We’re always wrong, by the way.) And then I’m sent off with very few marching orders other than “Let’s find some people’s stories that can tell our overall story”—the Civil War or whatever it is. I go off and do that and I check with Ken from time to time during that process. Meanwhile, he and the rest of the team start assembling visual matter: footage (if it’s a subject that happily has some) or stills (if it doesn’t); always stills, anyway. And they also go off and begin to interview people as the story progresses. Those are all separate events for quite a long time. So you’re writing treatments, or very early versions of scripts? Well, those distinction[s] are blurred in what we do. I write a script— but am always ready to write another draft. I write narration, and I look for voices. That’s a technique Ken likes. As I’m going along, I find a Civil War soldier who says something, or a World War II columnist who wrote something that adds richness and impetus to the story we’ve set out to tell. Meanwhile, Ken and Lynn are interviewing people. And I eventually get those transcripts. They replace whole gobbets

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of my prose, which I suppose bothered me at the very beginning but doesn’t bother me at all now. It saves time. This is after funds have been raised? I have—I’m knocking on wood—never had to write a proposal. Lynn does most of the writing of those. It’s an art all on its own. Sometimes, we’ve sent along a draft of the first show along with the proposal. I basically focus on what I’m supposed to be doing. I only rarely provide Ken or Lynn with any questions [to be asked during a filmed interview]. Ken believes fervently that you get better stuff from people if you ask them what’s actually on their mind, rather than try to get them to revisit something they said before and then say it in a more succinct form; that you get much more spontaneous, much more emotional stuff that way. And I think he’s absolutely right. I’ve worked both ways.

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Allied soldiers landing in Normandy, from The War. Photo by CPhoM. Robert F. Sargent. National Archives and Records Administration, records of the U.S. Coast Guard.

How do you avoid a common pitfall with historical films, in which filmmakers simply find visuals to plug into a prewritten treatment or script, using the images merely to illustrate points? A slideshow.

AN ONGOING PROCESS

Exactly. How do you adapt your storytelling as visual material comes in, or when you come across a terrific character whose story can cover the whole arc of a war, that sort of thing?

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It’s an ongoing process until they throw us out of the editing room. I’m always happy to alter things as we find stuff. I write what looks like a template, but it’s not, because there is a point at which these streams all come together, and you realize that this guy doesn’t work but look at this, this footage will take care of everything this man said, or that I meant the narrator to say. Or if we add this to that footage, it will be twice as good. It’s real give and take. That’s what I love about it. I don’t know any other job in which people look forward to meetings. I really look forward to the sessions when we get together in a too-small room and hammer this stuff out. I mean, ultimately, the filmmakers decide. But the ones I’ve worked with listen very carefully. Certainly, Ken does. And what’s remarkable about it is that everybody goes into that room, if you get the right people, with the common goal of making things better. It’s not scoring points or putting yourself forward or any of those things. It’s trying to make this living thing ever more living. And that’s fun. There’s also a shared commitment to making it accurate, verifying everything, even the words of your on-screen experts or, in the case of The War, participants. Yes, that’s right, checking it as much as you can. We did that especially with The War; we wanted to be sure people were where they thought they’d been and had done the things that they now remember doing. You’re never entirely sure of every single detail, but you want to verify as much of it as you can. That’s true in books, too. I’ve written 14 of them, some of them very detailed and carefully footnoted. In the end, it’s your best possible effort to show people or tell people how it really was. What’s your response to the proliferation of “quick and dirty” historical documentaries, in which visuals are used quite generically? I may have been trained as a painter, but I am a historian and biographer. I think it’s worth an enormous amount of effort to try to get the real thing. The real thing looks real. The kinds of historical films that are, I think, the most difficult to watch are the ones where a limitless river of stock footage seems to be running in one room and the narrator drones on next door. They don’t have any connection. So you look at the footage for a while, and you listen to the voice for a while, then you change to another channel.

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Characters in the series are carefully chosen; for The Civil War and, for the most part, The War, the handful on whom you focus have left a record that spans the duration of the overarching event. I really do think history is biography—what interests people is what happened to other people. We try very hard to find characters you really are going to care about. You want to find out what happened to them. It adds to the arc of the program, to realize that this one made it all the way through the war, and this one didn’t. There were people in The War whose stories were so gripping that even though the audience had been watching them tell their own stories, they were surprised to learn that they hadn’t been killed in the battles they described. I think that shows you the power of suspense. History is just dates and movements if you don’t have some individuals to hold on to. And the images don’t merely illustrate their stories. In fact, with one teenager you followed in The War, the images completely contradict his letters home. We had Babe Ciarlo, who was a young factory worker from Waterbury, Connecticut, a high school guy whose life was devoted to not worrying his mother. He went off to war and ends up being sent back to Italy, where his family came from. And he goes through some of the most awful fighting in the war. But in his letters home, he never lets on for a moment that anything bad is happening. Sure, he might be a little wet or cold, or there’s been too much sun, or they’re feeding him too much, but nothing else to worry about. And the contrast between that and getting footage of the kinds of battles he was in, and in which he was eventually killed . . . I knew how powerful that was going to be. And I did it at much greater length in the book; I could tell you even more closely where he was on what day, and what he was actually seeing—and pretending not to see. And then we had his lovely sister, on screen, read the letter she wrote to him on his 21st birthday, which happened to be the day that Rome fell. And he had actually died a few days beforehand. It’s very powerful. On one level, he’s an individual, and on another, he’s every 18-year-old that went off to that war.

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And the archival, as she’s reading the letter, reinforces that. It widens out from where he was stationed in Italy to include a wide range of people, stateside as well as overseas. And you realize that this one letter is emblematic of so much more. That’s right. That’s filmmaking. You can’t do that on the page.

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When telling a story for which there is an abundance of archival material, what is your role in making tough choices about what to lose and what to keep? One role simply exists in never presenting stuff I don’t think will work, so Ken never sees it. And then, mine is one of a chorus of four or five voices that look at everything again and again. And I very often am the one who says, “Let’s take down that paragraph. It’s overblown,” or, “This isn’t working. We have to do something to make this not be dull.” I think it’s a question of balance. It’s where you are at a given moment in the film. There are a thousand potential solutions to any problems. Your object is to find the one that seems inevitable. And that’s the tricky part. People truly do not understand how films are made. Sadly, critics don’t, either. Some historians don’t.

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Yes. A good many academic historians are basically suspicious of the medium and want to blame you for the sins of all the other people who have made films. They are extremely suspicious of emotion; the [criticism] we get most often from academics is that we work the emotional part of history. Well, there’s nothing wrong with emotion. You shouldn’t fake it. You shouldn’t make it more emotional than it was. But votes for women is emotional. Race is emotional. World War II is emotional. I don’t see how you could be in any way fair to subjects like these if you didn’t mine them for the emotions that are in them, because they’re the same emotions that we all experience. Isn’t that one of the strengths of a film versus a book—and one of the strengths that drives people to then turn to books? Sure. And I fervently hope that film makes people go to books to find out more. Nobody making a film is ever trying to make a definitive anything. No book is definitive, and certainly no film can be. Which gets to the notion that to be effective, you need to make choices. Even at Florentine, where you have the relative luxury of making lengthy series, with a broad topic you still need to focus and tell compelling stories. You can’t do it all. There are whole aspects of all these stories that we never touched upon. It’s sort of like a 12-year-old who knows everything about baseball and wants you to know that he can name all the pitchers in the history of the St. Louis Cardinals. Well, that’s nice. But we couldn’t name all the pitchers who ever played for St. Louis. And I’ve just had to get used to that. But it really is a terrible shame that

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there should be any hostility between serious filmmakers and serious historians because the cause of informing the public about the past we all share is a great one. My theory is that greater media literacy would make a difference. Consumers as well as historians would be better equipped to evaluate the quality—creative as well as historical—of projects. The funny thing is that your success, that inevitability thing, is a curse. If you’re good at it, it does seem inevitable. But the other hand, it’s therefore all the more mysterious to people how you couldn’t have also included everything else they can think of. At times in The War, you make the source of archival materials apparent. We see exteriors of U.S. movie theaters and go inside to see an audience watching a newsreel, for example, or we see Life magazine on a newsstand and realize that the photo of dead Marines is part of an essay, which then becomes part of the historical moment: Ten months after the battle in which these men were killed, the American public saw images of U.S. war dead for the first time. We did it where it mattered. For that show, [for] specific reasons, it worked fine. But if you call attention to specific images too often, viewers get thrown out of the story and other images may not work as neutral storytellers the way you’d like them to. On the other hand, you don’t want the old Military Channel thing, where there’s a sort of endless ribbon of film that goes by, of tanks and guns and shooting and guns and planes and skies and—you know.

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With a series like The War, in cases where your characters are still alive or their close families are alive, what do you owe the people whose stories you’re telling and whose images you’re using? That’s a good question. I’m a biographer of FDR [Franklin Delano Roosevelt], and I’ve written about a lot of famous people, great men and great women, who prided themselves on the eloquence with which they told you whatever they wanted to tell you. To me it was almost revelatory, after all these years, to work with absolutely ordinary people, and how they told their stories. (“Ordinary” is a terrible word, but you know what I mean: un-famous people.) The absolute honesty with which those veterans told their stories required us, I think, to be as honest and straightforward as we possibly could be in helping them make those memories come alive. And I think we succeeded in that; I’m very proud of that aspect of the film. We were quite often told by our own witnesses, “Don’t gloss this over. Don’t romanticize it. Don’t prettify any of this. This is awful stuff and people should understand

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what we lived through.” And I think we did that pretty well; it’s about as tough a film about World War II as anybody’s ever done. Were you ever asked not to show an image, perhaps because someone had been disfigured? No. If somebody had told us that some picture showed their son and they didn’t want it in there, I’m sure we would have taken it out, but that never happened. There were some pictures we didn’t use because they’re so ghastly that no viewer could have stayed with the story. What about the use of music? There were times when people would remember hearing a song at key moments, like the man who met his future wife while listening to “Paper Doll.” How involved are you, as a storyteller, in arguing for the use of historically accurate music instead of or in addition to the music being composed, in this case by Wynton Marsalis? I happened to know that tune. So in that case, I said, “That’s the Mills Brothers’ ‘Paper Doll.’ Get it.” You obviously couldn’t play anything else at that point. 138

Had Ken and Lynn asked people about musical memories when they were doing the interviews? We did some of that, yes. And it was a mix. All throughout the film, it’s a mix. It isn’t one big long piece of musical wallpaper, which is the other thing people do. After I’d written the script, I went back and looked at some of the classic [World War II documentaries] that people had done. And the one that people always tell you about with a very dreamy expression on their face is Victory at Sea [NBC, 1952–1953], which has an orchestral [score] by Richard Rodgers. And it’s fascinating to see it now, because you realize how attitudes change. When we’re dropping bombs on Europe, Rodgers wrote a little string part that goes: pik-pik-pik-pik, pikpik-pik-pik, pik-pik-pik-pik. Nobody in his right mind would do that now. And 50 years from now, when someone is doing the war again, they won’t do what we did. There are a lot of misconceptions about what it takes to create a Ken Burnsstyle film—put piano music under archival stills and you’ve got a documentary. Often, what’s missing is strong storytelling. What else, do you think? Well, they’re missing a lot of things. They’re missing the spontaneous interview. They’re trying to get a professor to fill a bill and also to tell the story rather than comment on it. It’s as though the narrator got tired and so Professor Jones was brought in to say, “And here’s another thing

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that happened.” That’s not very interesting. They also don’t fully understand those offscreen voices that Ken does so well. They hire a not-verygood, over-the-top actor. Again, this is almost always filmmakers who don’t think history is interesting, so the thing to do is just jazz it up and tell it as fast as you can and have as much movement as you can. Given this conversation in the context of a book on archival storytelling, what else would you like to add? I have a sense, I may be wrong, that people are sort of embarrassed to use stills: “We ought to find footage of this.” Well, there isn’t footage of everything. And in some ways, I mean, if you look at The War, it has lots of still photographs. And they are very often the images people take away from that film. That seems awfully simple-minded, but I think it’s something that people should have explained to them more often. When I was editor of American Heritage I used to do a great deal of picture stuff. And I think Ken has shown, other people have shown, that if you get yourself into a 19th century or early 20th century photograph, there are worlds in there. You can live in there a long time, and tell lots of stories, just within one big crowded picture. I guess the other thing to keep in mind about telling history stories is: Nobody was ever dumber than we are. The next generation will think we are as stupid as we think our ancestors were. People are people, and they learn, and they haven’t changed, essentially. Anything which has a tone of how dumb people were once, I think, is bad history. I don’t know any other way to tell historical stories except to tell them the way they happened to the individuals we’re dealing with. That is, that they unfold in a chronological way. You should not assume that either the audience or anyone in the film knows how it’s going to end up. You shouldn’t write a film that tells you right off, “We destroyed the Nazis and rebuilt another kind of world,” and then go back and prove that. It’s less interesting, to me anyway.

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That also means keeping storytellers “in the moment,” so the drama can unfold. And to the extent possible, keeping visuals in the moment, letting scenes play. There were long passages of just plain battle in The War. My view of narration is: Whenever possible, shut up. They’re already going to pay you. And if you write anything, you really do have to be as transparent as possible. That beautiful adjective that you thought of as you were writing almost surely shouldn’t be in the film because it sticks out. And anything that sticks out interrupts the ongoing story. It’s kind of like writing haiku. There are limitations that make it more fun.

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With films you’ve worked on that predate photography, are there differences in your approach? Well, it’s tricky. It’s harder. There’s a lot of using static things while you talk about what happened in them or around them, or over them. I’m not a fan of re-creations. I think there’s a feeling that you have to make things fast—moving and as vivid as possible, to make sure that people don’t change the channel. So having people plow a field or be lashed or whatever, somehow is going to make people more likely to believe the film. I don’t think it does—I think it makes you not believe the film. It’s too literal. To return to where we started, these are not illustrated scripts. These are scripts that evolve organically— I hope the whole thing develops organically. Most of the script stays pretty much intact. Stuff gets dropped and altered and rearranged and rewritten, but I do establish sort of how the story’s going to go. We sand and polish right up until the end. 140

When does the weaving happen, going between stories, from home front to battlefield, from Waterbury to Mobile? That’s in the script, but it’s going to shift. The parameters of the shows changed. Again it’s chronological: it’s from May to June, and then in some cases you found there was just too much stuff in there, so it would go from May to August. Scenes and sequence got moved back and forth between shows. My favorite thing in the world to do is to try to weave together a series of stories and keep you wondering what happened to Bill, while you’re hearing about Mary, whom you began worrying about in the last show. You pick them up and drop them at places where you don’t know what’s going to happen to them next. Simpleminded and old-fashioned as that sounds, it’s actually a very complicated process. The threads are all there, but other threads get in the way. The idea is to keep you hanging on until the very last minute, and we manage to do that. Most of our witnesses in The War came back, even Babe Ciarlo came back, because we had an interview with his sister and brother about the worst moment in their lives, which was when his coffin came back from Italy years after the fighting had ended. So he was in the last show too. The idea is just to keep them going.

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CHAPTER 10

Ethical Considerations: A Roundtable Discussion With Claire Aguilar, Jon Else, Stanley Nelson, Bill Nichols, and Rick Prelinger

Are there more and less ethical ways to use archival material, particularly in documentaries? Are there practices that might reasonably be viewed as deceptive or dishonest? Are audiences (including educators who use films in class) as aware as perhaps they should be about ways in which some uses of archival material may distort or misrepresent the past and even the present? In October 2007 we convened a panel of experts to discuss these issues with us and with students from the University of California, Berkeley, and Stanford University. The panel included: ■

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Claire Aguilar, Vice President of Programming at the Independent Television Service (www.itvs.com) and board member, Women Make Movies; Jon Else, filmmaker (Sing Faster, The Day After Trinity, Wonders are Many) and director of the documentary program at UC Berkeley’s Graduate School of Journalism;

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Stanley Nelson, filmmaker (Jonestown, The Murder of Emmett Till, Marcus Garvey) and executive producer at Firelight Media (www. firelightmedia.org); Bill Nichols, author of Introduction to Documentary, Professor of Cinema at San Francisco State University and director of the University’s Graduate Program in Cinema Studies; Rick Prelinger (www.prelinger.com), founder of the Prelinger Archives, co-founder of the Prelinger Library, and filmmaker (Panorama Ephemera, Our Secret Century).

After introductions, each panelist began with an opening statement, followed by discussion. This material has been edited with the panelists’ consent, and portions of this discussion appear elsewhere in the book. Questions, also edited, were posed by Kenn, Sheila, and members of the audience.

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JON ELSE: I think any discussion about documentary ethics has to begin with an acknowledgment that if we were working at The New York Times or at Mother Jones or at NPR [National Public Radio], we would not be having this discussion because there are a lot of institutions and industries in the truth business, or what purports to be the truth business, that have very, very clearly defined standards and practices. What makes what we do so exciting and dangerous and boisterous and invigorating [is that] we are constantly redefining what’s ethical and what’s not ethical, what is the line that we will not cross, and when have we crossed it. And the audience is part of this equation. An audience’s understanding of what constitutes a documentary, what they take to be true, that changes with time. That said, there are untruths, and untruths have no place in documentary. That’s where I start from: I’m a working documentary filmmaker and I have to get up every morning and make these decisions: “Do I use that shot? Do I not use that shot? How do I cut that shot? What sound do I put with that shot?” What appears to be true should be true, and what appears to be real should be real. When the lights come on in the theater, what does the audience believe to be true? What do they believe happened? What do they believe is real? It’s not rocket science for us to figure that out. It’s profoundly true that a lot of our films do in fact drive policy and they do inform public debate; they do inform the national conversation. And with that voice that we give to ourselves and others comes a responsibility to deliver the genuine article. I’m very aware when I’m doing these things that the currency that I trade in is evidence, and it is testimony.

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CLAIRE AGUILAR: ITVS is an organization that was founded 16 years ago by people in public media, mostly filmmakers, but a lot of nonprofits and advocates, who wanted to get the voice of independent filmmakers on public media. One of the interesting things that we have dealt with is the intersection of working in public media (i.e., public broadcasting) but also serving the independent community (i.e., the documentary community). And it’s still an oil-and-water mix in lots of ways. We kind of straddle the fence in terms of wanting to support documentary makers; on the other hand, there are increasing restrictions in terms of broadcast, in terms of standards. And those run the gamut from journalistic standards to broadcast standards to rules that have been imposed by the FCC [U.S. Federal Communications Commission], for example, and then into creative vision and into what people can do, basically. This has become more complicated, too, by the new media landscape and the rights-management battles that we’re in now. Some may not look at them as battles; I think people are looking at them as opportunities, especially for private interests, and also for independents too, in terms of making sure that you own rights or that you’re able to exploit them for commercial use or for just ethical use, or that they’re your own property. It’s become very interesting for us, who are working with both those interests: the independents and the industry, which wants to aggregate all those rights and to corporatize and monopolize most of those rights. That’s a long way from what we would call ethical issues in documentary, let’s say, 10 years ago, but it’s the reality of what we’re dealing with, with the industry right now. We normally work with domestic producers, but two years ago we launched an international fund, where we’re funding international makers for exhibition on television in the United States. And it’s been a great opportunity to see what kind of documentary practices people are working with in other countries. And some of these issues about ethics and about archival, they’re dealing with too.

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BILL NICHOLS: It seems to me that sometimes documentary wants it two ways. One is a journalistic practice, tied to a venerable tradition of reportage, where words like fairness, balance, objectivity, truth, reality, covering both sides of the story, and fact checking have genuine purchase, even if there’s disagreement about how they get applied, or sometimes even their applicability. On the other hand, within the broad documentary tradition there’s a sense of it as an art, an expressive practice tied to a venerable tradition of cinematic achievement, which answers to the visions and values of makers, a tradition in which words like honesty,

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conscience, sincerity, imagination, fantasy, power, impact, and sometimes even beauty have genuine purchase; even if here, too, there’s debate about their application and sometimes their applicability. We don’t usually worry too much about ethics with art. I think a recent twist that tries to have it both ways, but not necessarily in a bad sense, is to think of documentaries as essays. Essays, be they art or not, are closer to the op-ed style than to the reportage style, and I think the standards and expectations are, in that sense, more open and fluid. The insight of the maker or author takes precedence over some sort of a guideline about how it should be done, and I think that’s part of what makes it an attractive model. So sometimes there’s a tendency towards a “mix and match” kind of approach, where there’s a desire to champion the adherence to facts and scrupulous research on the one hand, but also a defense of the right of the maker to shape material. And I don’t think there’s a solution to that; it’s just part of the way this form is. Whether it’s archival footage, interviews, reenactments, voiceover commentary—all of those can be imaginative, effective ways to reveal artistry, as well as some of the significance of a historical or social reality. But it may seem like an ethical free-for-all: anything goes. What offends one viewer may be a matter of indifference to another, and certainly we don’t have an ethical set of standards. And apart from limited domains, I don’t think we ever will. If there is a sense of ethics that would be pertinent other than rules (which I oppose), I think it would have to arise from the grass roots. It would have to be what people in the pressure of the moment have found to be acceptable solutions to real problems. I think it’s the actual filmmakers who forge their ethics, and inevitably do so in moments of fundamentally face-to-face or camera-to-face encounter. Even when it’s in the editing room with archival footage, there’s a sort of surrogate face-to-face encounter as one decides what to do with someone else’s footage. And it seems to me that there’s a need to trust in the ability of an audience to make judgments for itself. As one example from our history lessons, I think Leni Riefenstahl had a great deal of respect for Adolf Hitler, but she had very little trust in her audience, so that there’s an enormous effort to stage, in Triumph of the Will, the phantasmatic scene (the rally). It’s fiction, in the sense that it was choreographed and planned in minutiae but given the guise of a reality. And that removed from the equation a sense of trust in the audience to assess and judge. STANLEY NELSON: What is implied in a documentary film, to me, has to be true. And I think that’s very simple. As a filmmaker, you go

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The Reverend Jim Jones, from Jonestown: The Life and Death of Peoples Temple. Photo courtesy the California Historical Society.

over your film, you go over scenes, over and over and over again. You know what your film is saying and what it’s implying. And you know what your footage is implying. And if it’s not true, then I think there’s a problem. I knew people, personally, who got into lots of trouble for using footage in the wrong way. I had a friend who made a film and paid some junkies to go out and get some drugs so they could shoot it, and he got fired. There’s another film, and the chronology of the events [maybe] wasn’t exactly right. This was a film that these filmmakers spent a lot of time making, and it got pulled from PBS. And so I come out of that era where you saw what can happen from using footage in the wrong way. It’s a challenge to use footage correctly. Usually you can use footage to say what you want it to say; if you’ve got a good piece of footage, you can find a way to use it without having to fake it and tell those little lies that you as a filmmaker know are not true. I’m working on a film now about the siege of Wounded Knee in 1973, [a conflict] between the American Indian Movement and the federal government. It went on for 71 days. And there’s tons of shooting, people just shooting at each other. And you don’t know what day it is, and it doesn’t matter for us a lot of times what day it is. It does matter the day the federal marshal gets shot and gets paralyzed. That happened on a certain day, and certain things happened

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before, and certain things happened afterward. But [the rest], we have no idea, and the footage isn’t even cataloged in that way. We do our best to figure out when it is, and if we do know—“well, wait a minute, they didn’t have the tanks this early on”—then we can’t use that footage. It’s just that simple. We know, and so we just can’t do it. And part of it is because we all work too hard on making films to have something like “when the tanks showed up” come back and bite you. Because it will come back and bite you.

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RICK PRELINGER: Those of you who are here at the [Journalism] School, you have a really interesting library. And one of the things that’s really interesting about it is that in addition to having what looks like canonical works (by great journalists and media people), you also have a lot of ephemera, a lot of stuff about the way that the media worked way back when. You have Editor & Publisher going back before the war. And you also have the fabulous Mergenthaler linotype book. This is a sample book of the typefaces which you could get in hot metal. This is probably from about the 1930s. In those days, if you needed to print something, if you needed to get a message out, typically you had to set metal type. This was expensive, heavy; it was as much hardware as you can get. It was difficult to access it without paying money. (This is, of course, now a pull-down menu in any word processing program, and you get your fonts for free.) I was a typesetter at a time when this gave way to photo type. And everybody said, “We’re losing the quality. Graphic communication and words are losing their value.” People used to say that there was too much printing and too much design happening. In other words, it was a revolt of entrenched interests against vernacular interests, older voices against new voices. And this is kind of what we see happening today with documentary. [Film]makers are not the only people who are faced with ethical issues around archival footage. If you think about it, archives are too. And this gets really complicated. Access to archives is much more difficult than it needs to be. Some of it, it’s simple: You can just go and buy it. But a lot of it, you can’t buy. There are a bunch of fences that separate people that want to do something with the material itself. And there’s a deeply ethical dimension [to this], which is intimately related with broad, very nebulous, but also very exciting issues about who controls history and who can talk the loudest. So I think makers need to help archives move into the 21st century and help their collections become more accessible. And in fact, makers are one of the keys to the movement to increase access to archives. You need to, I think, make your voices heard there.

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Some archivists believe in controlling the context in which their material is shown. Some archivists believe that ordinary people aren’t qualified to use archival material. That corresponds to archival privilege; that notion that archives control how the material is used, acting like the Vatican or the White House Press Office. But that age is over. Archival ethics, I think, argues for access to the broadest possible extent that the law and that the means of the archive permit, rather than letting them be another gatekeeper. Creative considerations: a few words. And this really echoes what [others] have said, that culture is not static, that language changes, that media evolves. And the language of documentary is constantly changing. It’s incredibly dynamic: it differs by community; by era; by generation. And right now, the character-driven documentary rules. But this is not inherent; this is the fashion of the moment. People used to make documentaries about a day in a life of Moscow or Kiev (that’s Vertov), or rivers (Pare Lorentz). They used to make cinéma vérité films that were open ended, where sometimes you couldn’t tell where reality ended and reconstruction began. Styles change. So how does this relate to archives? So many younger makers don’t work with stories as older makers do. They remix and recombine fragments from many sources in real time. The notion is that there’s a dynamic, living collage that’s going on, that’s shared; it’s communal. And a lot of people spend a lot more time as hybrid producer/ consumers than they do watching TV or movies. Interestingly enough, most of what we do, most of what I’ve done, is never going to reach that group. And that is, of course, the group that doesn’t care much about intellectual property laws (“intellectual what?”) or [have] a reason to care about them. And this group loves archival footage. This is the group that’s downloading millions of our films [Prelinger Archives, at the Internet Archive] online every year and making new stuff, a lot of which has no title, a lot of which is evanescent, a lot of which is ephemeral. It’s not prejudiced against old footage. Black-and-white and color material fits into a checkerboard. So archival material is, in a sense, almost utopian because it opens up all sorts of possibilities for change in the way that documentaries work. I think we need to make sure that we’re open to new ways in which footage is used, and celebrate these new ways. That, to me, is an ethical issue. It means accepting actuality and reenactment, fidelity and imagination, newer kinds of narrative, not eternalizing the present, because you can use archival material as a key to an eternally emergent media culture. Archival material has got a long history, but I think we’ve only begun to see its potential. And I have a

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feeling that in 20 years we’ll look back on work that we couldn’t have imagined today, that’s archivally based. Remaining fact-based or truthful doesn’t necessarily mean that a film has to be journalistic, does it? JON ELSE: When people [hear us] talking about fact checking and having the genuine article on the screen, they think that what we mean is that everything has to be a Frontline. And it could not be farther from the truth. Everything I’m saying, I think everything that everybody’s saying, applies equally well to an Errol Morris film or a Lourdes Portillo film or to Michael Moore or to Darwin’s Nightmare, whatever it is. “Journalistic” just simply means that if I think it’s a picture of Malcolm X on the screen, it has to be Malcolm X. It’s as simple as that.

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RICK PRELINGER: On the other hand, I think that new forms are emerging that make use of suggestion, that make use of context, that make use of metaphor, and they express themselves just as clearly and honestly. I agree that if you show the skyline of Dayton and you say, “Welcome to San Francisco,” either you have a problem or you’re making art. And if you’re making art, you better be good at it if you’re going to get away with it. JON ELSE: As long as the audience knows what it’s getting. And I’ll give you an example. In The Devil Never Sleeps (Lourdes Portillo’s film) there’s a wonderful anecdote in which she describes her uncle, Oscar. He had a contract, unloading a brand new bulldozer from a ship onto the shore, and the bulldozer fell in the ocean. And Uncle Oscar got the ship owner to pay for a new bulldozer. But the next day, he went and got the old bulldozer out of the water, so he got two bulldozers for the price of one; whereupon Lourdes cuts to a hand coming out of the water with a toy bulldozer on it. And we know exactly what that is. It’s like the reenactment footage in The Thin Blue Line. We know that’s not the real deal. BILL NICHOLS: I think the larger frame for that as a genre might be irony, and maybe mockumentaries. But the use of irony, where you’re saying something different from what you really mean, puts a burden on the audience to say “not.” The ethics of irony would itself be something to debate. At what point are you tricking an audience that then resents the trick because they didn’t get it?

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What about the use of “fake” archival materials—not obvious recreations, but the extra step, in which vintage cameras and film stock are used to create a false impression that what you’re seeing is archival? JON ELSE: I have no problem at all with reenactment. Not a bit. As long as we know that it’s reenactment. If you’re going to do fiction, do fiction. If there’s no stock footage, it’s tough; you’ve got to figure out some other way to tell this story to the next generation. Very often, though, you just have to do the work. You have to go dig in those little local TV stations and find out if in fact there is more footage. And very often there is. You’ve got to go find the home movies that nobody looked at before. You’ve got to go find the diaries that nobody looked at before. And sometimes, not always, sometimes you’ll come up with stuff that is just astonishing. BILL NICHOLS: To me, the ethics this raises are around, “To what degree can we believe what we see?” And particularly in documentary, where the image as evidence plays such a crucial role. To what degree is there a common knowledge that an audience would have, and how do we know that, visually? When are you sliding toward presenting something for which there is no truth?

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STANLEY NELSON: Sometimes when you’re doing research, there is no real truth. So at Wounded Knee, we’ve got five different people, say, who shot first. And we don’t know who shot first, except one guy tells us he shot first. [laughter] And so we’re going with that. He’s very clear: “I fired the first shot.” JON ELSE: If you found a bunch of other people who said, “That guy’s full of shit,” would you still use that? STANLEY NELSON: No. No way. One way in which archival images can be manipulated is through the use and abuse of sound, such as adding or changing it. BILL NICHOLS: It was clear in the early days of documentary, the 1930s, that sound was one of the most expressive elements. And it’s that quality that makes sound so powerful and probably so tempting in terms of maybe stretching what really happened at a given point. It’s a great way to not only typify [and] generalize but also to evoke and create mood. JON ELSE: If the sound substantively changes the storytelling—if you see a shot of a soldier in a trench and off-camera there’s a sound of

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a dive bomber, well, that’s one thing. If you see the same soldier in a trench and it’s sort of late at night and you hear some crickets, that’s a different kind of storytelling. The sound is not neutral. STANLEY NELSON: In Jonestown we kind of ran into that in the last scenes, where there’s audio of them dying and screaming and crying, and Jim Jones’s voice. And we felt we could use that and kind of cut it up; we didn’t have to use a continuous minute of it, but we didn’t overdub it. We didn’t cut in screams. We didn’t fake screams. We just ran pieces of it, and I felt very proud to be able to say of the screams, that’s the actual audio. That’s what it is. JON ELSE: And there’s something in that film that lets the audience know that that’s the real deal. I can’t say what it is, but that’s one of the reasons that scene is so powerful, is that the film has established its own credibility and trustworthiness to that point, and we buy it.

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STANLEY NELSON: We thought about trying to figure out ways to let you know for sure that this was the audio, and then we realized that you knew, and we just let it roll. We actually thought at some point, the beginning of the film or something, that we’d put that there were no recreations, that this was all real, that the stuff on the tarmac and the shooting and stuff was real. The [footage] was just so fantastic that you’re like, “Wait a minute, is this stuff real?” What responsibility do filmmakers have for acknowledging and even compensating for the bias inherent in any footage or stills they may acquire? JON ELSE: It goes without saying that just as you have to check every fact, you have to check whether the stock footage is bona fide. When we were doing The Great Depression, we found a lot of newsreels of hoboes in California, talking about what a terrible jerk [author] Upton Sinclair was when he was running for governor. And it turned out they were all actors that had been hired by [MGM studio head] Louis B. Mayer, who was opposing the campaign of Sinclair, and then this stuff had slipped into the archives as real interviews. There were some giveaways—there were some great big slates. [laughter] The thing that’s more important to be alert to when you’re gathering stock footage is, “Who is sending these camera crews out to do this stock footage?” And if you’re looking at most of American history, they’re not sending crews out to cover people of color. If they are sending camera crews out to civil disturbances, they’re going to cover it from the side that the cops are on. You can’t assume that the multifaceted

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richness of a particular event, particularly an event that involves contested ground, is well covered. It’s not going to be. BILL NICHOLS: That’s a really good point. Where the camera is, literally, revealing in a way that may not be a bias on a personal level but an institutional one. JON ELSE: There are some examples. There’s When the Mountains Tremble, which is about Nicaragua, seen largely from the point of view of a group of Sandinistas. There’s also—in the 1960s, a lot of the news camera people became fairly politically aware, and they started to shoot from the “wrong” side of the barricades. Stephen Lighthill, who did a lot of coverage of Berkeley in the 1960s; he was CBS’s main cameraman through all the events in Berkeley and San Francisco, [and] he made it a point, whenever he could, to be with the demonstrators. BILL NICHOLS: The San Francisco State [University] strike is another newsreel where you’re seeing the police attacking “us,” as it were, because the camera is on the side of the demonstrators. RICK PRELINGER: When you think about images that are stripped of context or intention, it’s an issue that makes me a little uncomfortable because the vast majority of production that uses archival footage is [commercial, lower-budget cable]. It’s text based; somebody sits down and writes a script, or maybe a script is borrowed from somewhere else, and then somebody who’s usually fairly junior on the totem pole is asked to go and find images to fill in the blanks, or sound or whatever. And so you get these synthetic works that are based on what’s achievable, what’s cheap. Typically people go off the reference tapes, the videotapes in the National Archives that have been shot with a camera up to the Steenbeck. This whole deliberative process, the really painstaking work that people at this table do, doesn’t happen. To me as an archivist, this was always really frustrating because nobody—hardly anybody—ever let the footage speak for itself, and looked at the footage to see, What is happening here? [Instead], they tried to fit it into some matrix which had been established by somebody who [didn’t] care what they were doing. And fundamentally it’s a great divide. My question is: “How can best practices such as we’re talking about here, or deliberative process, become an expectation?”

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BILL NICHOLS: I think what’s really going to be effective is if this is addressed collectively by the documentary community, at the level of education and peer pressure. I think you have to raise the issue of ethics and the profile of ethics. Maybe you do have a code of ethics. But at

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the very least, you try to get people to start talking about and agreeing on some very basic guidelines about this stuff. And then, when you get that peer pressure up, you can call people on things. There’s nothing more important for documentarians, because the truth is the power. And if you let that get subverted, there’s nothing left, really.

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JON ELSE: This is a great question and it’s, in a way, the crux of this. Do we need a set of rules or not? I don’t like rules: I think rules in the end are suffocating and they are constraining and they dictate against the inventing of new genres, and they dictate against the expansion of culture, and they dictate against art thriving in a democracy and all the reasons that we’re all sitting at this table. However, I am in favor of principles. Frontline has a really great set of standards and practices, which I’d suggest you all read [www.pbs.org/wgbh/pages/frontline/us/guidelines.html]. And I think what will eventually happen is, it will combine with a grass roots thing, with a bunch of institutions (maybe Sundance, IDA, ITVS, maybe the Center for Social Media) so that there’s something that’s a couple of sentences long, that basically says, “If we’re going to lie to you, we’ll let you know about it,” something to that effect. It turns out, by the way, that it’s infernally difficult to actually come up with something that works. It’s like trying to write a constitution, to come up with something that gives you the freedom you need to be a documentary artist but also constrains you from knowingly lying. Does ITVS have a set of standards and practices? CLAIRE AGUILAR: We’re working on them. It’s not based on us because we have to work with the various strands, and they don’t have a consistent measure of standards and practices. And even at PBS, which is supposed to be the umbrella over this, they don’t really have one either. They cite Frontline. And then when we worked with PBS on Independent Lens, the series that we produce, it’s a little bit of borrowing from different places. And so what we’re trying to do is a scan of standards and practices as they relate to PBS. But it brings up [another issue], that there’s documentary and then there’s this whole landscape of what we call “factual programming.” And there are just no standards for that. What’s more interesting is that viewers are not even aware of what’s going on at PBS, and they don’t really care. It’s like, “It’s just a show, and it’s on, and if I see it, I’m going to think it’s true.” But there is that principle. When I know that sound effects are really weird, I’m going think, well, it’s done intentionally, so this is not meant to be real. But we don’t have interaction, that kind of

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dialogue between the viewers and the broadcasters. And that would be really interesting to talk about. Are there ethical considerations involved in using archival materials that show people in a negative light, people whose families or employers may be watching? STANLEY NELSON: On Jonestown, one of the things that happened early on was that the survivors of Jonestown, a bunch of them said to us, “Could you please not use that shot with the big gallon of poison and the dead bodies lying there?” Now, I didn’t really feel like I owed them anything not to show it, but it did start me thinking that that image was so iconic, it was almost a cliché. And so we didn’t use that image. On The Murder of Emmett Till—Emmett Till was murdered in Mississippi, and part of what started the whole thing going was that the pictures of [his] mutilated body were published in Jet magazine. So we knew early on that we had to use these photos. We spent a lot of time trying to figure out what was too much, and what was too little, and what was just the right amount. Because we wanted people to have this shock. I mean, I remember seeing that photo in Jet magazine; the editor of the film remembered, as a young guy, seeing the photo. We wanted you to have that same shock, but we didn’t want to go overboard. So we spent a lot of time trying to figure that out.

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BILL NICHOLS: I think this question raises one of the boundaries between ethics and aesthetics, where there are these ethical questions of regard for family, kin, for the individual, for the life as something precious; and aesthetic questions, I think more along the lines of: At what point do you revolt or repel or sicken your audience rather than engage them? I think this changes with time; audiences have different thresholds, cultures have different thresholds. It comes up often with ethnography around showing “strange” practices, clitorectomy for example, or scarification, that would be natural and normal in some contexts but totally appalling in another. It certainly comes up with the Holocaust, and it seems to me, as I understand his view of it, that Claude Lanzmann [Shoah] chose not to use any archival footage, partly because he didn’t want to get involved with the questions of revulsion, but more to show the ways in which history remains present in the minds and memories of individuals who were involved. STANLEY NELSON: When we finished Jonestown, our first screening was for the survivors of Jonestown, because we realized that we had pictures and footage that they probably had never seen, and in those pictures

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and footage would be their loved ones and friends. So our very first screening was getting them together and letting them see the film first. JON ELSE: [So] there are three issues here. One is the ethical issue, what’s right; the other is the aesthetic issue; and then there is sometimes (but seldom) a legal issue. I learned a lot, teaching in journalism school here. When people are doing stuff in public, in a public place, “You drop your pants, you takes your chances.” Can we talk more about the use of archival materials in films that are either not historical documentaries or aren’t as traditional in their presentation of history? Do the guidelines change? If a character is remembering his childhood and you cut to a home movie from that era, can the film be of some other family?

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STANLEY NELSON: It can be real tricky with the home movies. I did a film called A Place of Our Own, and we used a lot of home movies in that film. One, they’re all color corrected, and they look incredible, which I don’t feel bad about. But there’s a scene where I think my father is talking about driving up to Cape Cod, and there’s a shot [from] outside the car window. And that’s not our home movie, but we used it. I felt that it’s just a driving shot. But it was on the edge for me. RICK PRELINGER: I’m almost more concerned with the cosmetic changes to silent footage, where there’s now an expectation that at the very least, you’ve got to have ambient tone. To me, it’s almost on the same level as the fact that when somebody is trying to talk about the first decades of the century, you hear ragtime; and when they’re talking about World War I, you hear “Over There.” It’s become really tired vernacular, and ultimately, I think, distorts a popular sense of what history is. JON ELSE: On Eyes on the Prize, we decided that you could add sound [to silent footage] based on a conservative estimate of what a microphone placed at that place, at that time, might have recorded. BILL NICHOLS: It’s partly aesthetic, in that it will change and evolve. But it goes back to the image archive: To what extent is there a kind of authenticity to that—this is how it looked and how it sounded, as an archival image from a given point in time—and when does that matter? RICK PRELINGER: Well, this is one bright spot, because as we start to see big image archives go online, there is going to be a sense of accountability. In the next few years, the Hearst Newsreel at UCLA is going to go online in full, and that will be profound accountability. The Internet

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Archive has been recording television now since early 2001, and it’s inhibited legally, but at some point we’re going to take the leap of faith and put it online, 20 channel-years every year. In Europe—actually, in Japan—this is already happening. And so I think there’s going to be a sense of what’s verifiable versus what’s frosting. CLAIRE AGUILAR: There are a lot of interesting forms that are coming up, that actually privilege archival. We’re working on this very interesting film called Waltz with Bashir. It’s an animated Israeli documentary about the filmmaker’s remembrance of when he was in the army, [about] the massacre at Sabra and Shatila in Lebanon. And he goes back to all his friends, and he tries to remember. So it’s about memory but it’s also about history [told through] live action interviews that he rotoscopes. But at the end of this—which is mostly a personal journey as well as finding out what really happened—is archival footage of the massacre. What’s on the audio is basically commentary from Israeli government officials, and that’s the only audio. And then the film ends. And it’s interesting because you think of archival footage in a much different way after seeing 90 minutes of animation, which looks like, basically, comic book animation—and then you see this incredibly violent footage of little girls buried up to their eyes in rubble, and screaming women. And this is what, in the narrative, the filmmaker’s memory is privileging of what happened.

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Another interesting device is to withhold images or sound. JON ELSE: One of the most powerful scenes in all of archive filmmaking that I’ve ever seen—Kenn brought it to my attention—is [in] an extremely good series about the Second World War, The World at War. There’s a scene, it’s Nazi soldiers coming into a village, and they separate the men from the women, and they send the women off in one direction, and they send the men off in another direction. And the sound just goes, or I think it’s maybe an almost inaudible hum of a movie projector. And the sudden absence of sound is almost unbearably powerful. What about the ethics of using music in the context of archival storytelling? STANLEY NELSON: Depends on the show. I haven’t worked on a lot of these big series, so I would tend not to be as strict about music. But it really depends. I’ve started feeling sometimes that using period music (rock ’n’ roll or whatever is on the radio) has become a cliché. You see it all the time in feature films. James Brown, hopefully he made some money off some of that stuff. It’s like, come on. Eyes on the Prize was

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20 years ago. And so now that kind of thing can be kind of moldy— how do you do something different? So I’ve tended to try to get away from it. JON ELSE: The archival films we’ve been talking about cost a half million dollars, and that’s an ethical issue, right off the bat. And it’s getting worse because of the consolidation of the archives and the rise in price, and now the demands that are being asked by the distributors. No filmmaker, earlier in their career, is going to be able to get that kind of money. RICK PRELINGER: Back in the 1970s and ’80s, people were talking about obstacles to ordinary people creating media, and so media art centers grew up around the country. And that problem has been sort of solved because whenever you get a laptop, you get a video capture and editing program with it, and the barriers to entry are much lower. Strategically, if you think about helping create a nation of authors, it comes back to this question of opening up archives and giving people raw material to work with. So if they want to do history, they can touch history without getting nailed for it. 156

And in making a wider range of materials more accessible to media makers, how do you also convey a shared understanding of what is or isn’t ethical? RICK PRELINGER: You reward good work. Positive reinforcement. JON ELSE: I think it has to infuse the culture of media making from top to bottom. It’s kind of like good spelling and “don’t lie.”

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PART 3

Licensing It

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CHAPTER 11

Introduction to Rights and Licenses So far we’ve explored what it takes to find, order, and use archival materials. In this section, we look at the final and often most challenging step: licensing. Filmmakers need to license much of the third-party material they want to include in their films because those materials are owned by someone else—they are someone’s intellectual property. Intellectual property issues are complicated, fascinating, and critically important. According to the World Intellectual Property Organization (WIPO; an agency of the United Nations), intellectual property (IP) “refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” WIPO divides IP into two categories: ■

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Copyright, “which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs,” and; Industrial property, “which includes inventions (patents), trademarks, industrial designs, and geographic indications of source.”

Each nation has its own laws regarding intellectual property. In the United States, IP is generally governed by two agencies: the Copyright Office and the Patent and Trademark Office. The Copyright Office defines copyright as “a form of protection provided by the laws of the United States . . . to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.”

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The Patent and Trademark Office offers its own series of definitions. A trademark is “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” A patent, meanwhile, confers property rights to someone who has invented something, including a utility patent, “granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof”; design patent, “granted to anyone who invents a new, original, and ornamental design for an article of manufacture”; and plant patent, “granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.” While they may not often be involved in genetically modifying plants, filmmakers do venture into non-copyright areas of intellectual property law. For example, they may seek to patent their own innovations in camera technology or to trademark characters, titles, and other appropriate elements of a project. (Titles cannot be copyrighted, but in some situations, they can be trademarked.) In addition, of course, filmmakers may need to secure licensing regarding certain uses of others’ patented or trademarked works. Initially, however, filmmakers will be most concerned with copyright.

A Brief History of Copyright As mentioned, most nations have their own copyright laws. In the United States, copyright law is written into the Constitution. In Article 1, Section 8, the nation’s founders asserted: “The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The initial copyright term was 14 years, renewable once for an additional 14 years from the date of first publication. As Lawrence Lessig explains in Chapter 13, the law was designed to encourage and motivate creation and invention by allowing those who performed this work to profit from it for a limited period of time. After this point, the work would be copyright free, entering into a “public domain,” where it could be used and drawn upon by others without restriction, thus again fueling creation and invention. It’s important to understand how copyright law has evolved, and in particular, how the term or length of copyright protection has expanded. This information is useful not only when considering U.S. law, but also differences in copyright around the globe (see Chapter 15). The initial

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copyright term, as noted, was 14 years, renewable for another 14 years. Over time, some of those holding copyrights began to seek increasingly longer periods of protection. By 1909, Congress extended the copyright term to 28 years, renewable for another 28, for a total of 56 years. Author Samuel Clemens—known by his pen name, Mark Twain—was among those arguing in support of this extension. According to The New York Times, he told Congress that 50 years seemed about right: “I think that ought to satisfy any reasonable author, because it will take care of his children. Let the grandchildren take care of themselves.” For filmmakers hoping to use works that have entered the public domain, it’s heartening to note that between 1909 and 1961, only about 15 percent of all 28-year copyrights were renewed, according to studies by the Library of Congress’s Copyright Office. What this means is that a large percentage of copyrighted works could and did enter the public domain after an initial period of just 28 years. However, owners of valuable copyrights continued to pressure Congress to expand and extend copyright terms, which it did eight times between 1962 and 1976. 161

The 1976 Copyright Act In 1976, U.S. copyright law was overhauled entirely, with changes (taking effect in 1978) that would significantly impact filmmakers. ■

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Copyrights that had been renewed for a second 28-year term and were in a legal “holding position” pending the 1976 law were automatically extended for a total of 75 years from date of first publication (rather than the previous 56), keeping more works out of the public domain for longer. For works created in or after 1978 (when the law went into effect), protection lasted for a total of 75 years from publication if they were corporate works or works for hire (created for a company or employer). Personal creative works would no longer be based on publication, but rather they were protected for the life of the artist plus 50 years. For works created in or after 1978, copyright also became automatic. In other words, while registration brings certain benefits, from 1978 forward, the mere act of creating the work is enough to initiate its copyright protection. Since fewer creators now register, it has become more difficult to locate a copyright holder, if permission to use protected works is needed.)

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Certain foreign works that had been in the public domain in the United States, if not in the public domain in their countries of origin, were restored to copyright protection.

The 1998 Copyright Term Extension Act

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In 1998, the U.S. Congress passed another and still-controversial change to American copyright law, the Copyright Term Extension Act (CTEA), also known as “The Sonny Bono Act.” Named for California congressman and entertainer Sonny Bono, the CTEA was championed by his widow, Mary, elected to complete his term, and by the estate of American composer George Gershwin, who died in 1937. But the bill’s biggest supporter was reportedly the Walt Disney Company, whose money-making star and corporate logo, the cartoon character Mickey Mouse, was due under existing copyright laws to enter the public domain in 2003. Ironically, critics noted, many of Disney’s most popular works were themselves drawn from public domain material. Attorney Chris Sprigman, writing in FindLaw Legal News and Commentary, noted that these works include “Snow White and the Seven Dwarfs, Cinderella, Pinocchio, The Hunchback of Notre Dame, Alice in Wonderland, and The Jungle Book (released exactly one year after [author Rudyard] Kipling’s copyrights expired).” The extension added two decades to the copyright period, meaning that works were protected for 70 years after the death of the author or, in the case of corporate authorship, 120 years after a work is created or 95 years from first publication, whichever came first. Thousands of works created after 1923 (if still under copyright in 1998) would not enter the public domain for an additional period of at least 20 years—or longer, if additional efforts to extend copyright succeed. (In a twist noted by scholars Daniel J. Cohen and Roy Rosenzweig at George Mason University, the extension ensured that Samuel Clemens’ work not only benefited his children but also his grandchildren and their heirs. “The copyright of Mark Twain’s Autobiography, which was posthumously published in 1924, will outlive his own granddaughter (who died in 1966) by fifty-three years,” they wrote. Twain’s granddaughter bequeathed the copyright to some work to the American Cancer Society.)

Eldred v. Ashcroft In 2002, attorney Lawrence Lessig argued before the U.S. Supreme Court (Eldred v. Ashcroft) that the Copyright Term Extension Act was unconstitutional for two primary reasons: First, it contradicted the intent of the founders in securing copyright for “limited Times” as specified in Article 1, Section 8. Second, it violated the First Amendment by weighting the interests of copyright over freedom of speech. In other words, by extending

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copyright and keeping materials out of the public domain, the government was preventing expression that might have built on that work for reasons that benefited private but not public interests. Lessig lost the case and a subsequent appeal.

When Does the Copyright Clock Start? One of the most far-reaching revisions contained in the U.S. Copyright Act of 1976 established for the first time that the “copyright clock” (the countdown of years during which something is protected) starts automatically the moment a work is created. Prior to 1978, copyright protection began as of first publication. This difference can be significant for those seeking to determine whether a work may have entered the public domain. According to the law, what determines publication is mass production; whatever the type of work, it’s not “published” until multiple copies have been disseminated. In fact, the law specifically states that “a public performance or display of a work does not of itself constitute publication.” This difference may matter if you’re trying to clear works created prior to 1978. For example, a television show that was broadcast live or aired a single time would not be considered “published,” and instead was only publicly performed or displayed. (Although the single broadcast may have been seen by millions of people, the program had not yet been mass produced in a tangible form.) Only when a show was syndicated (requiring that multiple film prints or, later, videotape copies, were physically distributed to television stations) did the copyright clock begin ticking. Clearing old television programming for the feature Good Night, and Good Luck involved researching the date of first syndication, not broadcast, to confirm public domain status. (Note that feature films are much more straightforward: the countdown begins when the film is released because film prints are mass produced and distributed for projection at movie theaters right away.) As mentioned, copyright protection now begins the moment a work is created, with the copyright office specifying certain categories for unpublished works. It is no longer necessary to register a work, although there are often benefits to doing so; see the following section.

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Copyrighting Your Own Work As filmmakers, you are creators as well as users of materials that are “original works of authorship” and “fixed in a tangible form of expression” and therefore eligible for copyright protection. The U.S.

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Copyright Office (www.copyright.gov) lists the following categories of eligible works: ■ ■ ■ ■ ■ ■ ■ ■

Literary works; Musical works, including any accompanying words; Dramatic works, including any accompanying music; Pantomimes and choreographic works; Pictorial, graphic, and sculptural works; Motion pictures and other audiovisual works; Sound recordings; Architectural works.

The site also notes that “categories should be viewed broadly. For example, computer programs and most ‘compilations’ may be registered as ‘literary works’; maps and architectural plans may be registered as ‘pictorial, graphic, and sculptural works.’ ” As the author of these works, whether the work is published or unpublished, registered or unregistered, the 1976 Copyright Act generally gives you the “exclusive right to do and to authorize others to do the following: ■

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To reproduce the work in copies or phonorecords; To prepare derivative works based upon the work; To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.”

Works for Hire Note that in cases where a work falls under the legal definition of “work for hire,” the copyright is held by the employer and not the employee and thus is subject to the term limitations for corporate ownership as opposed to personal ownership, as discussed above.

Registering Copyright While copyright is now automatic, there are benefits to registering a work with the Copyright Office, including collection of legal fees in the

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case of a successful suit and allowing a potential user to find you and license from you. And while publication is not a requirement for copyright protection, it can also be advantageous. For details, visit www. copyright.gov and/or consult with a copyright lawyer.

Enforcing Copyright If you use copyrighted material in a way that violates the protection granted by law to the copyright holder, you are subject to legal penalties. Conversely, if someone uses your copyrighted work, you have legal recourse.

Exceptions to Copyright There are two notable exceptions to copyright law in the United States, public domain and fair use. Because they can be so useful to filmmakers, we’ve devoted an entire chapter to each. Some nations, including the United Kingdom, Canada, and Australia, have what’s known as fair dealing, which is more limited and specific than fair use (Chapter 15). Another way to avoid the copyright tangle is to locate and use material that the owner has made available under a “Creative Commons” or similar license.

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More about Trademarks Trademarks affect filmmakers in a number of ways, in part because trademark law covers a wide range of issues and materials, including popular phrases, advertising slogans and logos, even characters in popular entertainment.

Trademarked Characters The Nike swoosh, the Pillsbury Doughboy, and McDonald’s golden arches are obviously trademarked, and you may face incidental capture issues when filming vérité in environments that include these logos (see Chapter 14 for a discussion of fair use as it applies to incidental capture). Certain fictional characters and real personalities, including actors and athletes, may also protected (not only by trademark, but also because of their right of publicity, discussed later in this chapter). Some of the most iconic characters of the 20th century, including Charlie Chaplin’s Little Tramp (owned by Association Chaplin in Paris) and The Three Stooges (controlled by C3 Entertainment) are protected. Notable animals, real (such as the horse, Seabiscuit) and fictional (such as the character of Lassie) are protected.

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What this means for filmmakers is that in addition to licensing the footage (or still) that includes a protected subject, whether real or fictional, you’ll need to license their use. So if you license a clip from a Three Stooges film from Sony Pictures (formerly Columbia, which produced The Three Stooges films), you must also contact C3 and work out a licensing deal with them. If you want to use a clip of Chaplin from an old comedy short, you may still need to clear your use of his trademarked character. It can cost as much to license the use of a trademarked character as to license the clip in which they appear, so beware! Note that you only need to clear trademark if you are presenting the characters in character. If you are showing not the characters, but the actors who portrayed them in a real-life setting, for example in newsreel footage, you don’t have to clear trademark.

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Whether the rights are protected under copyright, trademark, or another IP law, the term licensing refers to the process of clearing those rights. This means securing and usually paying for permission to use third-party owned materials in a new work, such as your film or video. As discussed here and in Chapters 16 and 17, license costs can be highly variable depending on your use of the material, which markets you intend to reach and where, and how many copies of your work you intend to sell and for how long. On the other hand, licenses are not optional. You must have signed releases in hand for the appropriate markets before your work can be insured, or before it will be shown or picked up by distributors. If you don’t clear the necessary rights, you will not be able to reach audiences at film festivals, on broadcast or cable television, in theaters, in classrooms, or on the web. If you try to distribute in any venue without the appropriate clearances, you are subject to financial and even criminal penalties, and your film may be taken down from a website or enjoined from being shown anywhere.

Errors and Omissions Insurance In order to distribute your film or video, you will be required to secure a form of insurance known as Producers Errors and Omissions Liability Coverage, usually shortened colloquially to E & O insurance. E & O is one of a handful of insurance policies that film productions tend to have and the one that primarily covers rights issues. In other words,

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E & O insurance is not the policy to protect you in the event that equipment or property is lost, stolen, or damaged, nor does it cover physical injury to individuals. It’s there to protect you—and those who’ve agreed to distribute, broadcast, or otherwise present your film—against claims that you’ve violated another party’s rights, including their copyright or other intellectual property rights. The companies that offer such policies work hard to ensure that you have done everything in your power to secure all necessary releases, licenses, and contracts for your film, or that you can document every case in which your use of third-party material is allowed because the material is in the public domain, or your use of it without a license is permitted as a fair use. In general, you need to have applied for E & O coverage at least a month before any scheduled broadcast; some networks may require that you have a policy even during production.

Is E & O Insurance Mandatory? E & O is a standard requirement for any kind of public distribution. It protects those who will be presenting your work on your behalf, and it protects you. Not obtaining coverage is risky and it prevents your work from reaching the audience it deserves.

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How Much Does E & O Coverage Cost? E & O insurance typically costs filmmakers anywhere from $1500 to $15,000, depending on the nature of the production (from a small, low-budget independent documentary for classroom use to a big-budget Hollywood film being released in all markets) and depending on the risk level involved.

How Does a Filmmaker Get E & O Coverage? To obtain E & O, you must fulfill a series of requirements. This includes submitting to the insurer accurate and complete records of all contracts and permissions having to do with your film, any backup paperwork for a fair use claim (including a written legal opinion in support; see Chapter 14), and a record of due diligence as needed if you have tried but failed to track down the source of material you might otherwise license (such as “orphan” works). At the end of this chapter, we’ve included a three-page clearance checklist that is distributed to potential clients by C&S, an international insurance brokerage based in New York.

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Legal Contracts: An Important Reminder Contracts with any individual or entity are legally binding documents that should never be entered into lightly. It’s always recommended that you consult with an experienced lawyer before entering into any legal arrangement. An archival researcher will be very useful in helping to negotiate with the archives and helping you understand what is in the license agreements they negotiate. But that form of expertise does not replace genuine legal expertise. And as mentioned elsewhere in this book, nothing contained in these pages is intended to serve as or replace legal advice. We (the authors) are filmmakers and can only offer filmmaking advice.

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One of the least complicated rights transactions may occur if you’re requesting permission to use material owned by a friend, an interview subject, or an individual collector or smaller archive. Provided they own the rights, they can grant you permission simply by signing a boilerplate materials release that you provide. This is a license agreement where you are in control, giving yourself a wide range of rights and options and eliminating some of the sticky points and limitations of commercial licenses. If you have this opportunity, take it. But be careful: Just because a photo or film clip is in someone’s possession doesn’t mean they necessarily hold the rights to it. Some professional wedding photographers, for example, will grant the newlyweds limited, private rights to use their wedding photos, but the photographer may retain other reuse rights, and you may need to return to the photographer for permission to include those photos in a film.

The Royalty-Free Agreement As introduced in Chapter 3, there are two primary ways in which commercial copyrighted content is licensed: royalty free and rights managed. When material is royalty free, you pay a flat fee regardless of how you use the material or how much you reuse it. This should not be confused with rights free. Royalty-free agreements are most common with generic materials, such as stock shots of weather or famous locations. Often royalty-free agreements are spelled out on a one-page contract, or, even more simply, represented by a few sentences on an invoice. Occasionally, they actually do exclude certain extreme uses (like logos or publicity), so you should make sure your intended use is covered if

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it’s out of the ordinary. If you do need to upgrade rights, often a simple surcharge is levied to cover these unusual uses, and the contract is amended.

The Rights-Managed Agreement With rights-managed materials, licenses are granted for a particular venue or venues, time period, and geographical area, and in addition will impose certain responsibilities. Rights-managed agreements are more complex than either a royalty-free agreement or your own materials release, but they are the most common and are used when licensing archival materials from most sources.

Who Uses Rights-Managed Agreements? For the most part, you will be asked to enter into a rights-managed agreement when working with news or commercial (i.e., for-profit) archives. ■

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A news archive is a library of footage from a broadcast or print news organization, involving either moving image or photographs. It may be a television network or local station, a press agency, or a newspaper. Some examples of news archives are ABC News VideoSource (which sells ABC News material) and the photo morgue at the Boston Globe. A commercial archive is any archive that sells, for profit, material from a variety of sources (including news sources), rather than just their own originated material. Getty Images is an example of a commercial archive that sells photographs and moving image that originated from a variety of places, including some news agencies, in cases where they have either bought the collection, or agreed to represent them, and other non-news providers, such as stock shot providers, nature cinematographers, and others.

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Elements of Rights-Managed Agreements As mentioned earlier, rights-managed agreements can be quite complex, but it’s helpful to understand certain elements that are common to most, if not all, such licenses: ■

One-time use. You may use the clip or work in question in the specified project only and not in any other or subsequent projects produced by you.

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Non-exclusive rights. In granting you permission, the rights holder retains the right to grant the same or other permission to any other party. Limited markets. The license limits the modes of delivery for the project by specifying in what venues it can be released or distributed, such as theatrical, nontheatrical, film festivals, broadcast, home video, and Internet download or stream. Limited time. Distribution via these modes is usually only permitted for a finite period of time, after which your film cannot be distributed without re-licensing. Limited geographic areas. The license specifies where the project can be exhibited or distributed, such as “domestic (U.S.) broadcast only.” Quit claim. Most license agreements have a “quit claim” clause. The licensor acknowledges granting you the rights it possesses but makes it your sole responsibility to determine whether or not there is anything else in the material that is subject to any other claims or encumbrances, and, if so, to resolve them. Indemnify. In agreeing to indemnify the licensor, you’re agreeing to hold them blameless if any laws are violated because of actions, or lack of actions, by you with regard to the materials they are licensing to you.

Let’s take a closer look at these terms and what they mean for filmmakers.

One-Time Use The name of your film or its working title will be featured prominently in the license agreement. You are only licensing the use of that footage, still, or music for that particular project. This means you can’t reuse the material in another project you do or give it to someone else. This is why most archives require that masters be returned to them at a project’s completion. Remember that one-time use is normally not an issue when you are buying royalty-free content. Reuse (although only by your production company or you) is included in the price you pay for that category of materials. Non-Exclusive Rights This means that the copyright holder can not only license the material to you for your use, they can license it to anyone else whenever and wherever they want, including simultaneous to your use. You do not have a lock on that material; the footage of polar bears on a floating

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glacier that you license from a particular archive might show up in multiple films because those producers, too, acquired non-exclusive rights to use the same footage.

Limited Time Time periods for licenses vary. The longest time period, unlimited time, is called in perpetuity. This means the filmmaker is granted the rights forever; they won’t expire. In contrast, some rights holders grant permission for just a few years of use, which filmmakers may agree to if they’re only seeking to show their work at film festivals (the assumption is that you will enter a cycle of festivals over a short period of time). In general, producers seeking broadcast or educational rights, while they would ideally seek those rights in perpetuity, may agree to somewhere between 5 and 10 years of use. The benefits of a limited time license are primarily financial. It will generally cost less for less time, which is why a two-year license that allows for festival use may appeal to cash-strapped filmmakers. (One goal, of course, may be to attract commercial interest that would motivate and allow the filmmaker to return to the rights holder to request and pay for a longer-term license for theatrical or broadcast release.) The drawbacks of a limited time license can be considerable, but often you don’t have a choice other than to negotiate as long a term as you can afford, or for as long as the archive will let you. The problem is that when the underlying rights expire to even a single element of your film, the film can no longer be distributed. Period. You may no longer do anything with your film unless you remove the third-party material(s) that have expired. Only by re-upping or re-clearing the rights for another batch of years can you continue to distribute your own work. But going back to a rights holder and re-clearing rights is not as straightforward as it sounds. Imagine, for example, that you sent your film out into the world seven years ago, and now the rights have expired. You’re in the enviable position of having created a film for which there’s still a market. But you’re an independent filmmaker, juggling several other film projects (you’re still working to raise funds for one of them), you’re also working freelance and perhaps you’re even teaching a couple of courses. Now you’re supposed to go back into your seven-year-old files, figure out which rights have expired or are about to expire, relocate the rights holders or discover what new entity has obtained the copyright in the meantime, figure out who the current contact person is, and negotiate to renew the rights. And then—here’s the kicker—you have to pay for those renewed rights. Which may mean putting your fundraising hat back on—although frankly, what

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are the chances, in a competitive funding environment, that someone is going to give you money to renew a seven-year-old film that will not get new press or new awards? In other words, with a few rare exceptions, once your first archival right expires, your film is dead. The copies that exist in libraries and rental stores can continue to be viewed only as long as they don’t get destroyed or stolen. They can never be replaced.

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An Example of Time Limits In 2006, the first six hours of the PBS series Eyes on the Prize, which premiered on PBS in 1987, were rebroadcast, followed in 2008 by the remaining eight hours. The series was also released for the first time on DVD (for educational use only). As is the case with almost any film that includes third-party materials, the series had gone out of distribution because the rights to some archival materials used in its production had expired. Blackside, Inc., the company that produced Eyes on the Prize, was not negligent in its initial clearance of rights. To the extent possible, the company sought licenses that would grant all rights, in perpetuity, in all media, including media to be invented. But many rights holders charge impossible fees for such broad licenses, and many others simply won’t grant them. So in each case the best deal available was made, and the series, widely considered to be a definitive history of America’s civil rights years, went out of circulation within roughly a decade of its release. It took a public outcry and grants of $665,000 from the Ford Foundation and $250,000 from New York philanthropist Richard Gilder to get Eyes on the Prize back into educational and public television markets. This one story of success shines a light on all of the many archival projects, some of them made surprisingly recently, that have already—and in all likelihood, permanently—expired. Limited Markets Most of the time you will be licensing rights for use in specific markets. This means that you’re clearing rights only for the venues that you need. If your film is intended solely for classroom use, for example, you will not need or want to pay the costs associated with clearing rights for broadcast or theatrical use. In general, the markets for which you might be negotiating (you might think of them as modes of delivery, the venues in which your film will be presented) include: ■

Film festivals (this is usually the least expensive rate);

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Noncommercial television (such as PBS, BBC, or other noncommercial and government-related broadcast entities); Commercial broadcast; network, independent or other over-theair for-profit broadcasters; Basic (or free) cable, such as the Discovery Channel or Lifetime— essentially any cable station that is part of a basic cable package and usually runs ads; Premium cable, such as HBO, Showtime, Sundance, IFC, stations that may be sold à la carte to customers and contain no ads, except for their own programming; Educational; for example, classrooms, libraries, or church and community groups. These are also known as nontheatrical or nontheatrical audiovisual rights; Theatrical, meaning “wide release” in a large number of movie theaters around the country; although most theatrical films really require “all rights, all media, in perpetuity,” as Hollywood films do; Limited theatrical, meaning releasing only to a few theaters, usually art or repertory houses, such as the Film Forum in New York or the Nuart in Los Angeles. Because consideration for Academy Awards involves opening in at least one theater in Los Angeles or New York, filmmakers sometimes purchase limited theatrical so they can qualify for an Oscar; Museums. Because museum use usually does not involve making copies, but rather simply exhibiting in a limited time in one place in connection to a specific exhibit, museum use is not terribly expensive compared to other rates. Upgrading this to permission to present a film in more than one museum, such as with a traveling exhibit, is sometimes granted gratis; Corporate presentations. You may be making a sales film, or a video project for presentation at a stockholder’s meeting, or to teach CEOs new management skills. Corporate use is often a fairly expensive right, and like film festival rights, is usually granted for quite limited time periods; Television commercials. Archives may differentiate between national and local commercials, and more often than for other uses, they may charge a per-cut minimum or a higher per-cut minimum; DVD/home video, which means specifically selling physical materials or downloadable digital files to individual consumers for private use, as opposed to educational rights, which include permission to show to a group of people. DVD/home video is

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usually considered to be a more commercial—and therefore more expensive—right; Internet, whether streaming or downloadable from the Internet. Most archives will differentiate between the two, and it’s often less expensive to license a visual clip if your film is going to be streamed only. Streaming means that you can watch the film onscreen, even repeatedly, but it cannot be copied onto your computer. Downloadable means that you can click a button and it will copy to your computer’s hard disk. Sometimes the rights to downloadable Internet use are simply not available; Publicity; for example, using the material in a promotional trailer or television commercial, or on a poster or other print-based advertising, or using a still or a frame grab on the DVD packaging. Note that publicity is almost always a separate right from all the others, and an expensive one. As with television commercials, publicity rights are often priced with per-cut pricing, and even a purchase of “all rights, all media, in perpetuity” may not include certain publicity uses.

Geographic Limitations Within these market categories, rights holders also generally want to identify and charge different rates depending on geographic reach, such as North American free cable or worldwide educational use. As with time-limited licensing, there are benefits to this segmentation because it allows you to pay for only those markets you need (and/ or can afford). You might purchase “film festivals just in the United States” or perhaps “DVD/home video rights only in North America” (which would then include Canada). Or you might buy a limited combination of rights within a geographic area: “public broadcasting and educational rights only in the United Kingdom.” The drawbacks, too, are comparable to those involved with time limits. If you clear festival-only rights and your film catches the attention of a broadcaster or theatrical distributor, then you’ll need to go back and clear those rights. It may be easier once you’ve got a commercial backer, but that’s not necessarily the case. Most companies want filmmakers to deliver their projects free and clear, with the necessary rights negotiated and paid for, which means the euphoria of being recognized at the festival(s) gives way to more hard work clearing and paying for rights. Sometimes, if you ask for it, you can get an option window, allowing you to upgrade your rights for a discounted price later on (see Chapter 16).

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Quit Claim: Indemnifying the Rights Holder Quit claim is a legal term that generally means to transfer title, right, or claim to something to someone else. In this case, it’s the term used when a provider expressly warrants that they have certain rights over the clip(s) they are providing (or sometimes, even, no rights other than ownership of the physical material), and specifically absolves itself of responsibility beyond that; in other words, the provider is making you legally and solely responsible for identifying and, if necessary, clearing any other rights that may be infringed by your use of the material. A quit claim is most often used to protect the provider from claims pertaining to underlying rights. For example, within the footage they license to you there may be music that must be cleared separately, or third-party visuals (artwork on the walls, images on a television screen) or individuals whose images are trademarked or otherwise protected. In entering into a quit claim agreement, you usually are indemnifying the licensor, which means that you are holding them legally blameless for any breach of intellectual property that might occur through your use of the material. When you’re buying materials from a third party, don’t hesitate to ask if there are underlying rights that you need to clear, and if so, whom you should contact. Sometimes the copyright holder won’t be able to tell you, but often he or she can. The license agreement puts the onus on you to locate and clear, but that doesn’t mean the seller of the clip might not have useful information that might save you a lot of detective work.

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Underlying Rights As noted, within the materials that you are licensing, it’s often necessary to also clear underlying rights to trademarked images, copyrighted sounds or music, or other elements embedded within the primary materials (such as a clip or still) that you’re licensing. These rights do not belong to the principal copyright holder (for example, the individual or archive that owns the clip), but must be cleared separately by you. It’s worthwhile to go into a certain amount of detail about underlying rights, because clearance can affect your schedule and budget. What kinds of materials get overlooked? ■

You license a clip of local or national news covering a trial, but no cameras were allowed in the courtroom. The clip may include the work of a courtroom sketch artist, which in most cases is

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copyrighted by the artist. If you want to use it, you need to contact the artist (or artist’s representatives) and get permission. You acquire a news story that includes images and sounds taken from third parties. The news use of it may be covered under fair use or fair dealing (see Chapters 14 and 15), but your reuse of it may not be. You’ll need to find out from the news source, if you can, where the third-party material is from and contact them separately to arrange for permission. An example of this: audiovisual obituaries. Because the death of a great movie actor is spot news (essentially, news that happened that day), media outlets can assemble an obituary that includes clips from that person’s films. However, if you want to show the obituary with its clips in your documentary three years later, it’s no longer spot news and likely not fair use (unless, for example, you are commenting on the obituary). If you suspect that footage included in a network screener is from another source, ask. Networks will often send news stories intact as screeners but at the last minute will remove or block third-party materials from the masters. Too often filmmakers fall in love with and use embedded footage, stills, or graphics, only to find—sometimes at the last minute—that they can’t license them, at least not from the archive that provided the screener. You acquire footage in which copyrighted works of art appear, perhaps hanging on a wall behind the action. You may need to clear this art separately. You want to use clips from Hollywood features that were created under guild contracts that require residuals: Writers Guild of America, Directors Guild of America, Screen Actors Guild, and/or American Federation of Television and Radio Artists. As explained in Chapter 16, you will need to pay a fee to those guilds and to the actors directly. You want to use a clip from a film in which the mixed soundtrack includes both natural (sync) sound and a music track, and you can’t access an unmixed track.

Underlying Rights in Public Domain Material If something is truly in the public domain, then usually all underlying rights are in the public domain as well. But special care should be taken: For example, a clip may be from a film that is in the public domain, but in some cases elements in the clip are still under copyright, or individuals appearing in the clip are subject to trademark protection. An episode

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of an old television sitcom may have fallen into the public domain, but its well-known theme song may still be under copyright on a stand-alone basis, or its characters may be trademarked. Also, in very rare cases, films leave the public domain and become protected again when a copyright encumbrance is discovered. Two such cases involve the Hitchcock film Rear Window and the popular favorite It’s a Wonderful Life. In both, it was discovered that the underlying literary works (short stories) on which the films were based were still under copyright (and in the case of It’s a Wonderful Life, some of the musical score was, too). Because the short stories were substantially the same as the films (same plot, same characters), the courts concluded that the films were derivative works and that they be restored to copyright protection for as long as the stories were protected.

Clearing Newspapers You may want to use newspapers and their headlines or a front page to further a narrative, especially if other visuals aren’t available. Or you may want to convey the idea that your subject attracted national or even international attention or was covered in a specific way in a local paper. Maybe you want to compare and contrast how different news outlets covered the same story. Whether or not you need permission is a gray area, and so you should check with an attorney about your particular case. Many contemplated uses of newspapers and their headlines fall under fair use, especially if there’s some critical or comparative point involved. And some of the most conservative Hollywood studios’ legal departments nowadays take the position that all newspaper pages fall under fair use, arguing that the moment you show a newspaper in the context of a film, you have transformed its original use into something else. Most of the time, however, news photographs embedded on those pages need to be cleared separately if the camera sees them (unless they, themselves, are specifically treated in a way that can be construed as fair use). In general, if you are just using the newspaper to visually forward your narrative, you may need to clear. Some organizations will give you a gratis clearance, while others will want fees upwards of $200 and may limit (sometimes severely) how long the license term is. In any case, beware. Logos, such as on magazine covers, are trademarked. Time, Inc. vigilantly protects LIFE magazine’s red box logo and Time magazine’s logo typography. You may not use this distinctive branding without permission (unless, again, your use constitutes fair use). Trademark violations are especially serious when they involve

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a “fake” version of a well-known magazine cover or newspaper front page. If your “fake” version is to be considered satire, courts may consider whether you are satirizing the publication itself (a stronger fair use argument) or some third subject, such as the person whose face you inserted onto the fake cover.

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Copyright to the artwork itself if it’s still under copyright; and Copyright to the reproduction of the artwork (such as a poster of a painting, or a photograph of a sculpture) if that’s the source of your image. (There are some exceptions, and certainly some gray areas in the copyright law and legal precedent regarding the reproductions.)

Artwork clearance depends on when the art was first created and where or when it was first published (for example, if a reproduction of a work of art was printed in a book, handbill, or other medium that was mass produced). Pre-1920s fine art is likely to be in the public domain, although you should confirm that. If it is, you need only obtain a copy you can use (like a digital file or transparency). Otherwise, you’ll need to clear the work, as described in Chapter 16.

Working with Museums Museums may own artwork, but only in very rare cases do they own the copyright to the artwork that’s hanging on their walls or stored in their vaults. The copyright almost always stays with the copyright holder (in general, the artist or the artist’s estate) until it enters the public domain; it rarely transfers to the collection in which the work is housed. Thus, museums almost never have a copyright claim based solely on their physical ownership of an artwork; this is especially true if the work is in the public domain. Clearances with museums are usually only necessary if you are obtaining a print or transparency of an object from them, rather than from somewhere else, because it was probably created for them or by them. Museums do own the rights to the reproductions they will be lending you and can charge hefty fees for that. If a museum insists they own the copyright to a particular piece of artwork in their collection, it might be a special case; work with them to determine what rights, if any, they actually have.

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John Trumbull, “Declaration of Independence,” oil on canvas, commissioned 1817. Photo courtesy Architect of the Capitol.

In addition, be aware that some large museums may argue that you must acquire transparencies of works in their collection only from them and credit them accordingly. This is not the case. If you can find an alternate source (and that image isn’t just a copy of the museum-owned reproduction), you’ll probably find it’s cheaper and won’t come with encumbrances such as demands for a long, detailed credit line. Be careful that the cheaper illustration is of high enough quality to suit your needs, and that it accurately represents the original artwork. We hinted earlier that there are some legal gray areas concerning photographic reproductions of artwork. There is some divided opinion over whether the photography of flat art constitutes the creation of new, copyrightable work or is simply a “slavish copy” of the flat art (because presumably anybody photographing a painting would create a virtually identical image). Courts have conceptually distinguished between the copying of two-dimensional and three-dimensional art. A photograph of 3-D art is generally considered a new artistic expression; the photographer chooses the angle, lighting, and composition, and that makes each photograph unique—the artistic vision of that photographer. For this reason, the case law seems to indicate that you may be able to freely use a “record” photograph of flat art, but not a photograph of three-dimensional art (or specialized or creative photography of flat art).

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Moral Rights The issue of museum ownership is worth looking at more closely because it allows us to introduce the legal concept of droits moral, or “moral rights.” These protect an artist’s ability to control aspects of his or her work above and beyond copyright, such as how and whether it’s displayed or altered. In the United States, especially since passage of the Visual Artists Rights Act of 1990, moral rights are seen as adhering solely to the work of visual artists such as painters, sculptors, and fine art photographers. Moral rights remain with the artist even if the work is sold or the copyright conveyed to a third party. Be aware that your use of the artwork is generally governed by the artist’s moral rights: you may not damage the integrity of the artwork or the reputation of the artist.

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Moral rights have greater and more expansive power in much of Europe, where they are a central tenet of copyright law and are applied to the work of a wide range of creators, including authors and filmmakers. Moral rights are viewed as inalienable, and in some countries they can’t be waived by the creator; the creation is seen as an extension of the individual. (In the United Kingdom, however, where moral rights do apply to filmmakers, they are routinely waived in certain types of contracts.) In some countries (including the United States), moral rights expire when copyright expires. Elsewhere, such as in France (where the concept originated) and Germany, moral rights survive in perpetuity. See Chapter 15 for more information on moral rights.

Personal Rights Most filmmakers are aware that the people they photograph usually need to give permission or otherwise consent to the terms of an appearance release, which grants the filmmaker the right to use their name, likeness, and persona. Similarly, filmmakers who acquire visual material from third parties should ensure that the consent has previously been given and that it’s broad enough for their new use, or they need to obtain permission themselves. In general, these rights fall into two related but different categories: ■

The right of privacy refers to everybody’s right not to be bothered in their private lives, not to be photographed or have images of them or their words or voice used without their permission or against their will.

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The right of publicity protects individuals from the unauthorized use of their name, likeness, or persona for commercial purposes; it involves the right of each person to control and profit from the commercial use of their name and likeness. The right of publicity grew out of the right of privacy, and while it applies to everyone, it most often is used in reference to high-profile personalities.

Right of Privacy As mentioned, the fact that you did not directly photograph or record the individuals whose rights may be violated in footage you are licensing or acquiring does not shield you, should they pursue legal remedies for the rights violation. Nor does it grant you freedoms in the use of those images that the original photographer, audio recordist, or cinematographer didn’t have. On the other hand, not all appearances require signed releases. When people are present at an event at which media coverage can reasonably be expected (such as news coverage of a fire, crime scene, or political event), there is an understanding that their consent to being filmed is implied. In other words, “although no direct, express or explicit words of agreement had been uttered,” as it’s often written in legal terms, the individuals at these events are said to have granted implied consent by virtue of their being there. People marching in public protest, hanging around a crime scene, or standing in the audience at a political rally have a reasonable expectation they might be filmed or photographed. If they are, their image or voice does not have to be cleared, either in the original use or in reasonable reuses, such as a documentary film, as long as it retains the original context. What if a person knew he was being filmed in a situation where implied consent applies, yet he or she was engaged in an activity that is either illegal or that casts the individual in a negative light? In general, this is still implied consent, as it was the individual’s decision to allow himself to be filmed in that action. For the WGBH series Vietnam: A Television History, producers (and project lawyers) debated using news footage depicting soldiers smoking marijuana. The concern was that those same soldiers, watching the broadcast 20 years later, might not want their families or employers to know of their actions. But because it was clear that the soldiers knew they were being filmed, the footage was used. Some notes: ■

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of clearly identifiable people at a public gathering and alter the footage to imply that they’re at a different gathering held for some other purpose. The person cheering at a sporting event who later sees himself in a film as a member of the crowd at a political rally will be justifiably angry; this manipulation is actionable, meaning there is likely cause for the person in question to take legal action. You may not use relatively generic images of people to imply specifics that are not true. If you have a shot of three anonymous young men on a public basketball court, you may not add voiceover that implies to an audience that these are gang members, Mensa members, or high school dropouts if you don’t know that to be the case. If people are filmed clearly against their will or without their knowledge (in the absence of circumstances that would lead a reasonable person to assume they might be recorded), there is no implied consent, and you should get their permission before using a clip in which they are recognizable (unless an IP attorney advises otherwise). Alternatively, you might digitally disguise the identities of anyone whose consent you need but have not gotten or perhaps can’t get.

Right of Publicity Right of publicity keeps people from exploiting the name and reputation of famous people—living and dead—in ways not approved of by them or their representatives. Before they’ll license a clip, still, or poster to you, Hollywood studios will demand that you clear the likeness, or right of publicity (also sometimes known as the right of personality or personality rights) of an actor or other recognizable celebrity. Chapter 16 explains more about how to do this. An added difficulty in untangling right of publicity (or personality) issues is that in the United States, it’s under state, not federal, control and is currently recognized in only 28 out of the 50 states (including California and New York, where much of the entertainment industry is based). Each participating state has its own rules, including whether the right of publicity expires upon a person’s death or continues in perpetuity. Another aspect of right of personality involves passing off. This is any variation of an attempt by someone to imply an endorsement or relationship (usually a business relationship, usually with a celebrity) that doesn’t exist. At this time, Australia leads in the number of precedent cases (including a prominent case involving the character and

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film Crocodile Dundee), but the United Kingdom also recognizes passing off as an actionable violation. In the United States, as well, any use of famous personalities for marketing or advertising will require clearance.

Political Figures Elected politicians and those who seek or hold public office are considered to be exempt from the right of publicity, especially while serving the public, but often afterwards also. For one thing, they always have a reasonable expectation that they will be filmed and photographed and usually know when it’s happening. Thus, if you want to use an archival excerpt from a press conference of President Jimmy Carter, or a scene of President Ronald Reagan at the dedication ceremony for his presidential library, you don’t need to clear rights of publicity (although you will probably have to obtain and clear the actual clip from a news source). Beware, however, of underlying copyrights that may affect this exception, such as the possibility that certain speeches were copyrighted after they were given in public, and/or the likenesses of many historical individuals are protected. The estate of the Reverend Dr. Martin Luther King, Jr., for example, guards the rights to both his image and his words very carefully and has copyrighted many of King’s speeches as literary works, including the famous “I Have a Dream” speech given in Washington in 1963. Use of the words and sometimes the voice and/or likeness of Dr. King usually can only occur with the permission of, and payment to, the estate.

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Trademark as Well as Right of Publicity As stated earlier, in some cases, when trying to clear the use of celebrity images, you may encounter both trademark and right of publicity issues, although often the same entity owns both, and so the issue may be moot. CMG Worldwide, for example, represents over 200 of “the World’s Great Legends,” according to its website—including actor John Belushi (d. 1982), baseball star Babe Ruth (d. 1948), and civil rights activist Rosa Parks (d. 2005). They also control the “I love New York” logo. CMG is also “the exclusive business representative for the Estate of Mark Twain,” according to the official Twain website. “We work with companies around the world who wish to use the name or likeness of Mark Twain in any commercial fashion. The words and the signature ‘Mark Twain’ are trademarks owned and protected by the Estate of Mark Twain.” Note that CMG doesn’t also hold the copyright to Twain’s works.

INTRODUCTION TO RIGHTS AND LICENSES

Reality Check

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After reading this chapter and understanding even the basics involved in intellectual property law and the licensing maze you face, you may be thinking, This is nuts. Yep. It can be. And far too often, filmmakers are shying away from it—which is also nuts but in a different way. We have a wonderful, powerful, moving, and important legacy of audiovisual materials dating back more than a century, crossing international boundaries and offering a dauntingly complex view of the human experience from the macro to the micro level. And more and more, we as filmmakers can’t touch it, for one reason or another. Either we can’t afford it, or the archives or estates won’t give us access to it or approve our intended use, or the gatekeepers who present our work in theaters or on television (or who insure us) are afraid of litigation. The complexity of licensing is a key part of the problem. Lawyer Anthony Falzone, director of the Fair Use Project at Stanford University’s Center for Internet and Society, put it succinctly when he said, “This is [the] only kind of property we treat this way. When you go to buy a table, you don’t have to tell the guy at the furniture store what room you want to put it in, whether it’s going to be next to a white couch or a brown couch. And by the way, what if I want to put it in my cabin at Lake Tahoe? Let’s go ask the guy who made the legs, because we might not have the rights to use the legs in the cabin at Lake Tahoe.” Can the system be more sensible? Falzone and others think that it can. “Maybe it would be a perfectly good rule to say that any documentarian can use 30 seconds from any film they want, period. And let’s just forget about all these different mediums and things like that,” Falzone suggests. The intensifying “clearance culture” and the absence of a manageable licensing system has proven to be burdensome not only to filmmakers but also to anyone creating works that reference the past, from scholars and scientists to artists working in both traditional and new media. Creators of postmodern works of art, collagists on the Internet, those who create mashups and post their favorite clips on their websites or sites like YouTube also feel flummoxed by—or else completely ignore—IP regulations. Between scrupulous rights clearance and outright theft, however, there are some legitimate means by which filmmakers can appropriately and creatively draw on preexisting material without paying through the nose or going to prison. Two of the most important involve the fair use of rights-protected material and the use of material that never was or is no longer restricted, and instead is in the public domain.

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Clearance Procedures Checklist for E&O Coverage The Clearance Procedures below should not be construed as exhaustive and they do not cover all situations that may arise in any particular circumstance or any particular Production. 1. Applicant and its counsel should monitor the Production at all stages, from inception through final cut, with a view to eliminating material that could give rise to a claim. Consideration should be given to the likelihood of any claim or litigation. Is there a potential claimant portrayed in the Production who has sued before or is likely to sue again? Is there a close copyright or other legal issue? Is the subject matter of the Production such as to require difficult and extensive discovery in the event of necessity to defend? Are sources reliable? The above factors should be considered during all clearance procedures. 2. The Producer and the lawyer need to read the script prior to commencement of Production to eliminate matter that is defamatory, invades privacy or is otherwise potentially actionable. 3. A script research report should also be prepared before filming to alert the Producer to potential problems. Such problems may include: names of fictional characters that are coincidentally similar to real people; script references to real products, businesses or people if not cleared; or uses of copyrighted or other protected materials, etc. Fictional character names should be checked in relevant telephone directories, professional directories or other sources to minimize the risk of accidental identification of real people. Similar checks should be done for the names of businesses, organizations and products used in the Production. Special care should be taken to check names of person, businesses, etc., that are negatively portrayed. The Producer also must be alert to elements that do not appear in the script (such as art works used on the set) but that may need clearances. Reprinted with permission from C&S International Insurance Brokers, Inc., www.csins.com

4. If the Production is a documentary and there is no script, the Producer should provide its counsel with a detailed synopsis of the project in advance of production. (If it is a documentary series, the lawyer should receive a detailed synopsis of each episode.) If the Production will involve negative statements about people or businesses, the Producer should provide counsel with full details about the allegations and their merit. Problem statements can then be identified and thus avoided while filming. During filming, the Producer should be careful to avoid (or consult with counsel about) possible problem areas. (Examples include: filming identifiable copyrighted items or performances, trademarks, persons who have not specifically consented to be filmed, or minors.) Relevant law differ from place to place: some jurisdictions have very restrictive rules about filming persons, signs, buildings, public art, etc. Also, be careful to avoid narration or editing that accidentally implies negative things about pictured people, products and businesses. 5. A copyright report on the underlying script, book or other work must be obtained, unless the work is an unpublished original, not based on any other work, and it is certain that it was not optioned or licensed to others prior to the Applicant’s acquisition of rights. Both domestic and foreign copyrights and renewal rights should be checked. If a completed film is being acquired, a similar review should be made of copyright and renewals on copyrighted underlying property. 6. The origins of the work should be ascertained—basic idea, sequence of events and characters. Have submissions of any similar properties been received by the Applicant or someone closely involved with the Production? If so, the circumstances as to why the submitting party may not claim theft or infringement should be described in detail. 7. Prior to final title selection, a title report must be obtained. TITLE COVERAGE WILL NOT BE OFFERED UNLESS A RECENT TITLE REPORT HAS BEEN SUBMITTED TO AND APPROVED BY THE INSURER. 8. Whether the Production is fictional or factual, the names, faces and likenesses of any recognizable living persons should not be used unless written releases have been obtained. A release is unnecessary if person is part of a crowd scene or shown in a fleeting background. Releases can only be dispensed with if the Applicant provides the Insurer with specific reasons, in writing, as to why such releases are unnecessary and such reasons are accepted by the Insurer. The term “living persons” includes thinly disguised versions of living persons or living persons who are readily identifiable because of identity of

other characters or because of the factual, historical or geographic setting. 9. All releases must give the Applicant the rights to edit, modify, add to and/or delete material, juxtapose any part of the film with any other film, change the sequence of events or of any questions posed and/ or answers given, fictionalize persons or events, and make any other changes in the film that the Applicant deems appropriate. If a minor, consent has to be legally binding. 10. If music (pre-existing or original) is used, the Applicant must obtain all necessary synchronization and performance licenses from copyright proprietors. All necessary licenses must also be obtained for recordings of such music. 11. Written agreements must exist between the Applicant and all creators, authors, writers, performers and any other persons providing material (including quotations from copyrighted works) or onscreen services. 12. If distinctive locations, buildings, businesses, personal property or products are filmed, written releases must be secured. This is not necessary if such real property is seen only as non-distinctive background. 13. If the Production involves actual events, it should be ascertained that the author’s major sources are independent and primary (contemporaneous newspaper reports, court transcripts, interviews with witnesses, etc.) and not secondary (another author’s copyrighted work, autobiographies, etc.). 14. Shooting script and rough-cuts should be checked to assure compliance with all of the above. During photography, persons might be photographed on location, dialogue added or other matter included that was not originally contemplated. 15. If the intent is to use the Production or its elements on videocassettes, web sites, multimedia formats or other technology, rights to manufacture, distribute and release the Production must include the above rights and must be obtained from all writers, directors, actors, musicians, composers and others necessary therefore, including proprietors of underlying materials. 16. Film/video clips are dangerous unless licenses and authorizations for the second use are obtained from the owner of the clip, as well as licenses from all persons rendering services in or supplying material contained in the clip; e.g., owners of underlying literary rights,

writers, directors, actors, music owners or musicians. Special attention should be paid to music rights as music owners often take the position that new synchronization and performance licenses are required. 17. Living persons and even the deceased (through their personal representative or heirs) may have a “right of publicity.” Clearances must be obtained where necessary. Where the work is fictional in whole or in part, the names of all characters must be fictional. If for some special reason particular names need not be fictional, details must be provided to the Insurer in an attachment to the Application.

CHAPTER 12

The Public Domain Filmmakers wanting to use material protected under intellectual property laws, as described in the previous chapter, will generally need to seek permission and perhaps pay a fee for that use. In some circumstances, filmmakers in the United States may claim the fair use exception to copyright (Chapter 14). And in some cases, as described in this chapter, there is no need to seek permission because the material is not, or is no longer, protected by intellectual property laws. When this happens, and there are no copyright, trademark, or patent restrictions involved, the material is described as being in the public domain. The public has free access to use and reuse the intellectual property contained in the material ad infinitum. Not only can you incorporate the material or elements of it into your new work (or works), but others can too—the right is nonexclusive. “Even though it’s been under attack, we have one great resource that they don’t have elsewhere in the world, which is a really vibrant public domain,” says filmmaker and archivist Rick Prelinger. “We have approximately half a million motion pictures, most of which you would have never heard of, non-feature, in the public domain in the United States since the beginning [of motion picture photography]. There is also a tremendous amount of music and literature you can work with,” he says, adding: “The public domain is cool. There are really tremendous resources that are in public domain; it’s not just old and dead. And I would milk it to the maximum extent that you can.” While works enter into the public domain in other countries besides the United States, access to this material often is more difficult there.

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Tornado approaching Canadian city, July 8, 1927. National Oceanic and Atmospheric Administration’s National Weather Service Collection.

How Do Works Enter the Public Domain? In the United States, some works are in the public domain because they were never eligible for copyright protection. For example, films, stills, and audio recordings created with U.S. government funding in general are not subject to copyright. In part for this reason, the U.S. National Archives and Records Administration and the U.S. Library of Congress, which house a lot of government material, can be a tremendous resource for filmmakers.

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Decisions made in public courts at every level of government in the United States are also in the public domain, as are, by extension, records of public trials (unless they are sealed). Filmmakers have made interesting use of trial transcripts; Brett Morgen’s animated documentary Chicago 10, for example, is built in part on records of the conspiracy trial that followed clashes at the 1968 Democratic National Convention. Other materials may have been eligible for copyright protection but have entered the public domain because the owners failed to meet the copyright requirements in place at the time the works were created. Still other works may have once been under copyright but the term has expired, either because owners failed to renew or the renewal period has also ended.

Failure to Renew There is a body of materials created after January 1, 1923 and before January 1, 1964 that might be in the public domain, if the copyright holder failed to renew during the 28th year after publication. Footage shot in 1930, for example, might be in the public domain as long as the author either didn’t register originally or else failed to renew copyright in 1958.

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Failure to Register In addition, in the years prior to 1978, some owners simply failed to register their work. Note again that works created in 1978 or after are automatically granted copyright, as discussed in Chapter 11.

How Do You Know if Something is in the Public Domain? Because of changes to the copyright law, especially the overhaul of 1976 (which went into effect in January 1978) and the Copyright Term Extension Act of 1998, a significant amount of material that would otherwise have joined the public domain continues to be rights protected. The year 1923 is now considered as the line between knowing something created in the United States is in the public domain (PD) and having to research the issue. But for all of the reasons explained in this chapter and the previous one, you can’t presume anything, as the song “Happy Birthday To You” demonstrates. The tune dates to 1893 and is in the public domain, but that version of the words, first published in the 1920s and copyrighted in 1935, is not—although as this book goes

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to press, the copyright is being challenged. Your best bet is to do some research.

Researching Copyright If you want to know the copyright status of an item registered prior to 1978, probably the least expensive way to find out is for you or a researcher to consult the copyright reference card catalog at the Library of Congress. Any U.S. title from that era can be looked up for registration and renewal dates, and if it was not registered originally or was not renewed before 1963, it is now in the public domain. If the item was registered (or may have been registered) since January 1, 1978, you can consult the online database at the Library of Congress’s records website. The database allows you to search by title, author, or a variety of other tags and produce a result that will include the last known copyright holder. Again, remember that this is exactly the period during which registration was optional, so you will only find copyright holders who registered on the list. 192

Working with a Researcher Obviously, most researchers don’t like to be hired just to do a copyright search for you. More appropriately, they would already be working on your project and would check the copyright status of something while at the Library doing other work for you. Asking the Library of Congress to Research The Library of Congress will research a copyright for you and report to you on it (and that report is suitable for use in your files; it should satisfy your E & O insurer and distributor). The cost changes every few years, but is currently $150 per hour, prorated. A $100 deposit will secure an estimate for you. Contact the Library of Congress Reference and Bibliography Section to initiate your search; for more information go to www.copyright.gov/circs/circ22.html. The more details you can give them about the item(s) you want to know about, the less expensive the search is likely to be. They have recently begun to take orders and credit card numbers over the phone (202-707-6850), so your request can be expedited. Your search may take as long as six weeks, although often it takes significantly less time. Hiring an IP Firm to Research Another, usually faster, but more expensive, method is to hire one of any number of intellectual property law firms to do some digging for you.

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Some advertise this specific service and often do a very thorough copyright check. They will probably be able to track for you changes of ownership that have taken place over the years and provide contact information for the current copyright holder, if any. They also have the advantage of being able to write a formal legal opinion for your files if they have determined that something is in the public domain.

Cornell Copyright Information Center An excellent quick reference as to what is and is not in the public domain, or how long something will be protected for, is available at the Cornell Copyright Information Center website (www.copyright. cornell.edu/public_domain/). A chart on the site, developed by Peter B. Hirtle and based on work by Laura N. Gasaway, shows at a glance what materials—including visual and written works, sound recordings, and foreign works—will become available and when.

Public Domain and U.S. Works If the work was first published and created in the United States and is in the public domain in the United States, the “public domain” is international; anyone in the world can draw on this material. ■

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For works first published outside the United States, anything before 1923 is also in the public domain for use in the United States, but it may or may not be clear in the country of its origin and elsewhere. Anything first published abroad between 1923 and 1977 that did not follow U.S. formalities (did not carry a copyright notice, etc.) when published in the United States—and was in the public domain in the country of origin as of January 1, 1998—is most likely in the public domain in the United States. Most foreign works that don’t fall into the two categories above are protected for 95 years after the date of first publication.

Some Complexities of Public Domain As discussed in Chapter 11, recent court cases have removed films (such as It’s a Wonderful Life) from the public domain after it was demonstrated that they significantly depended on underlying works that were still protected by copyright—in which case, the entire work is deemed to be still under copyright. There are a variety of reasons that the copyright status of certain works may not be completely straightforward.

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A Work Was in the Public Domain but It’s Been Modified

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In the 1970s, colorizing films was explored both as a novelty and as a way of making public domain films “new works,” and thereby newly subject to copyright. If you can locate a black-and-white version of a public domain film that was subsequently colorized, you may use it on a public domain basis (as long as there are no lingering underlying trademarks, etc.). It’s a bit more of a gray area when it comes to using the colorized version. “The theory would be that the colorized version might enjoy new protection as a derivative work,” explains intellectual property lawyer Peter Jaszi. “The problem with that theory is that it isn’t clear that the essentially mechanized process of mass colorization would qualify as ‘original’ authorship.” While Jaszi says that “there is no case law directly on point,” he notes some analogous decisions, including Bridgeman v. Corel (about whether a record photograph of flat art, with no additional creative value, is copyrightable). He suggests that colorization alone might not be enough of a “significant change,” as the law requires, to warrant a new copyright. “Significant change” is an important but ill-defined concept—the courts would rather decide what is significant on a case-by-case basis—and significant need not mean “extensive.” French painter Marcel Duchamp simply put a mustache and goatee on a postcard of the Mona Lisa, but that small change was considered to be significant.

Material Is in the Public Domain but Expensive to Acquire Just because something is available rights free doesn’t mean that you can assume there are no costs involved in its use, even beyond duplication costs. Whoever owns the actual physical materials (an original film print, for example, from which you may need to make a copy) can charge a fee for allowing you to use it, and you may have no choice but to pay if it’s the only surviving print. (Note that this is not always a simple issue of greed: The cost to restore, preserve, maintain, and house archival materials can be substantial.) Even when there are other options available, it’s up to you to find out about them. Many commercial archives offer public domain material and charge usage fees for them that are not much different than license fees. There is no law preventing this, nor is it the archive’s responsibility to tell you that material is in the public domain. And there are times when it might even make sense to pay these commercial rates rather than order the material from a public source, such as the U.S. National Archives (see Chapter 3).

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Material Is in the Public Domain But Your Use or Access Is Restricted As previously described, if you can only access the physical copy through a single owner, that owner can set whatever fees he wants. He can also restrict or forbid your use, even when the material is in the public domain. Frustratingly, this is even the case when rare materials are donated to a public archive, including the National Archives or Library of Congress. The donor has the right to put restrictions on use of the donated physical material, and the Library must honor those restrictions. This often leads to a situation where tax dollars are paying for vaulting a private entity’s materials (such as vintage prints from Hollywood studios) without the tax-paying public having access.

The Copyright Has Expired in One Country but Is Still in Force Elsewhere Because copyright terms vary country by country, it’s possible that an image or song that’s in the public domain in the United States is still under copyright protection elsewhere, if it was created elsewhere. If you plan to release your film in other countries, make sure you’re clear in those countries.

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Orphan Works Orphan works are not strictly in the public domain, but rather in a gray area that results from an inability to identify the copyright owner or to even know if one exists. Especially since 1978, when creators or owners no longer had to actively register their copyright, it’s possible to find material you want to use and, despite your best efforts, be unable to locate the owners. This is one of the most distressing aspects of the 1976 copyright law—without registration, locating the owner can be a nightmare.

Due Diligence What do you do if you possess footage or a still that you want to use, that may be under copyright, and for which you can’t find an owner despite making a reasonable effort? The copyright owner could step forward at any time—including after your film is in distribution—and make trouble for you, even sue. But the onus is on the claimant, at that point, to prove ownership. If you’ve done your due diligence and even put aside a reasonable fee should an owner come forward, you shouldn’t be liable for malice and intention to violate copyright.

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Due diligence (or best efforts, as it’s sometimes known) is a way of establishing that you’ve done your best to find the copyright holder, in order to show that you meant no malice in not licensing the material involved. To that end, as you explore the copyright and attempt to find the copyright holder of a problematic piece of material, keep a log of everything you do, everyone you talk to, and all efforts you make to locate the rights holder. Keep track of every phone call you make, when you made it, and with whom you spoke. Keep all faxes and print out all emails; keep them in a file identified as due diligence for that particular item. If the rights holder does eventually come forward, assuming you’ve made every possible effort to locate him and clear the material (and can document those efforts, should it be required), you should be able to satisfy the rights holder’s claim by paying a license fee consistent with other fees for that market, without penalties. In fact, such claims seem to be rare. We know of a single instance of a copyright owner coming forward after the fact. In this case, the issue was not an orphan work: A clip was licensed from network news and used in a PBS series. The cinematographer saw the show and said that he, not the network, owned the copyright to the footage. To everyone’s surprise, a check of the records supported the claim: The network’s contract had allowed the cameraman to maintain copyright. The misunderstanding was resolved, and a reasonable fee was paid to him for PBS’s use of the footage.

Public Domain Music Music rights can be even more complicated to clear than visual rights, as discussed in detail in Chapter 17. But public domain applies to music as well as to visuals, and there is a wealth of available PD material.

Recorded Music and Sound There is some very early material in the Edison Collection at the Library of Congress that covers recordings made between the 1890s and the 1920s. These include popular songs, like “Aba Daba Honeymoon” (1914), “The Bells of St. Mary’s” (1920), and “Santa Claus Hides in Your Phonograph” (1922). The Edison Archives at the Thomas Edison National Historical Site contains 48,000 early Edison recordings, many on cylinders. Besides music, this collection includes turn-of-the-century comedy and spoken word recordings. But the commercial phonograph didn’t really take hold until the end of the First World War, so relatively little of what we think of commonly as recorded music predates the copyright cutoff of 1923.

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Traditional Music What about music that is frequently sung but predates commercial recording? Many African-American spirituals, for example, are in the public domain, as are traditional church hymns, such as “Onward, Christian Soldiers.” (Neither of these are to be confused with gospel music, which emerged in the 1920s and is generally subject to copyright.) You can’t assume that because a song is traditional it is in the public domain. In the early years of the 20th century, “song collectors” traveled widely, using existing technology (often, bulky wax cylinders) to document traditional music that they not only recorded but also transcribed and copyrighted. An example is folklorist John Lomax, who toured the American South in the 1930s with his son, Alan, with equipment provided by the Library of Congress. In 1933, he “discovered” a blues guitarist and singer named Huddie Ledbetter, better known as Leadbelly. The singer performed some of his own songs but also adapted traditional material he’d learned while growing up along the Texas/Louisiana border. Many of these songs had been shared by performers for years and weren’t copyrighted. But in collecting them, Lomax also sometimes copyrighted them, which in part helped to support this work. These collections are in the Library of Congress, but that doesn’t mean the recordings are in the public domain.

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New Arrangements of PD Music Another thing to remember is that almost all music should be held under suspicion of being copyrighted because a new arrangement will create a new copyright. Thus, although the hymn “Onward, Christian Soldiers” dates from before 1923 and is not under copyright (in the United States, at least), almost any arrangement you can find is likely to date after 1923 and be under copyright by the arranger.

Voluntary “Public Domain” In a world marked by increasing intellectual property restrictions and concerns that the work of artists, scholars, journalists, scientists, and others is being inhibited by these restrictions, there is a growing number of creators who want to make their work easily available to the public for certain uses. The creators are not giving up their rights to their work, they are merely making some of these rights available as a public good, often in the belief that new work invariably builds on existing culture. Generally, these creators make their work available through special licenses; some examples follow.

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Note that any exception to copyright law also applies to these alternative forms of licensing; in other words, if your use of rights-protected material qualifies as a “fair use” exception to copyright, the exception also applies to any licensing restrictions imposed by the rights holder in these cases.

Copyleft Created by software developer Richard Stallman, Copyleft is a form of voluntary license guarantee that basically allows users to copy or alter a work as long as the resulting work can also be used freely under Copyleft terms. Stallman is the author of the GNU (aka GNU’s Not Unix) General Public License, used widely by open source software programmers as well as by some creators of music, art, or documents. For example, GNU’s Free Documentation License generally governs Wikipedia content.

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Creative Commons (CC) was founded by a group of cyberlaw and intellectual property experts, filmmakers, and entrepreneurs in 2001. A layered, flexible approach to copyright, the designers of Creative Commons, according to their website, “use private rights to create public goods: creative works set free for certain uses . . . We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them—to declare ‘some rights reserved.’ ” A Creative Commons license can be applied to any work that could be subject to copyright law, including all creative genres. Through Creative Commons, the author(s) of a work can determine the extent to which copies, derivative works, or adaptations may be made.

Open Digital Archives Efforts by many individual archives are also underway to counteract the restrictions of copyright and make some materials available (with specified limitations) to the public for educational and creative purposes.

– : The Japanese-American Legacy Project Densho – website (www.densho.org) was created in 1996 to “preserve The Densho the testimonies of Japanese Americans who were unjustly incarcerated during World War II,” according to the site, and has grown and evolved in the years since. An extensive collection of oral histories (many of them videotaped), original documents, and donated photographs

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relating to Japanese-American history can be found here. A simple, free registration is all you need to access these works, which do have restrictions, but not for scholarship, personal, or educational use.

Creative Archive License Group (BBC) Between April 2005 and September 2006, the BBC experimented with putting some of its audiovisual material online, free and available for use in the UK, as part of a joint effort that also included the British Film Institute, UK’s Channel 4, the Open University, and later ITN. The consortium, called the Creative Archive Licence Group (http:// creativearchive.bbc.co.uk/) set out to “make their archive content available for download under the terms of the Creative Archive Licence—a single, shared user licence scheme for the downloading of moving images, audio and stills.” Use of the materials had to be private or educational, and not commercial. The pilot project ended in 2006 and as of this writing, the website offers information but no clips. The Sandbox (WGBH Lab) Executives at Boston Media Productions, a production unit of the Boston public television station WGBH, launched The Sandbox (http:// lab.wgbh.org/sandbox) as “a way of sharing high-quality video clips” with the public, for use in the subsequent creation of mashups, documentaries, and other new content. To date, there are about 570 clips both from public domain and WGBH sources. Materials that are WGBH-originated are under a Creative Commons license that requires attribution, noncommercial use, and a standard “share-alike” option, meaning that others you share the clip with may use it under the same restrictions (or lack of them) that you are granted.

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CHAPTER 13

Getting Things Right: A Conversation with Lawrence Lessig In June 2007, scholar, professor, lawyer, and activist Lawrence Lessig (www.lessig.org) announced that he would put aside his longtime activism regarding intellectual property (IP) law and the exchange of ideas in a digital age, in order to explore how money can corrupt and influence political systems. But as he explained in his blog, he viewed the two as connected: “I am convinced we will not solve the IP related issues until these ‘corruption’ related issues are resolved.” Lessig is a professor at the Stanford University Law School and the author of books including Free Culture and The Future of Ideas. He has been a leader in the global fight to recognize, guard against, and take action to prevent the growing reach of the intellectual property laws as they impact the free exchange of information and ideas. He met with Kenn in August 2007. Would you give a brief overview of how copyright laws in the United States have changed over time? The early history of copyright law in America was relatively sane and balanced. The first copyright statute in 1790 created a term of 14 years, renewable once to a maximum of 28 years. In 1831, the initial term was extended to 28 years, and in 1909 the renewal [14-year] term was extended to 28 years. So by 1909 it was 56 years. Between 1960 and 1978, [Congress] extended the term of existing copyrights 11 times. And it created this expectation that in some sense copyrights need not

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expire, we can just extend the term, and as you extend the term, you basically delay the work passing into public domain. The part that’s invisible—but which is really much more significant—is that at the same time, the basic rules of copyright changed. Before 1978, you got a copyright if and only if you registered the work, marked the work, renewed the term. More than a majority of creative works never got a copyright initially. And the vast majority— 85 percent—of those that did get a copyright didn’t renew. So that meant that a huge portion of work passed into the public domain. After 1978, the copyright was automatic. Under the new system, nothing passes into the public domain for almost a century. So it’s not just that the term is extending, it’s also that the reach is extending. And worse, the reach is extending to cover works whose authors cannot be found because [the work is] not being made commercially available. So it’s extending it in exactly the worst area for the ability of people to use and to build upon culture. Because unless a work is published commercially, it’s harder to find the owner. 202

Right. Copyright is the most inefficient property system ever known to man, because we have no way to know who owns what. And the whole purpose of property is to allocate rights, so that you know who you need to go to [in order] to get access to those rights. But we don’t do that; the government has allowed this copyright system to become insanely inefficient. And then we jump ahead to 1998, when Congress passed the Copyright Term Extension Act. You argued before the U.S. Supreme Court (Eldred v. Ashcroft, 2002) that the Act was unconstitutional. Can you explain? When we brought Eldred, we were really focused on a very basic and obvious point about the structure of copyright. If copyright is to be an incentive to create works, the one thing we know about incentives is they’re prospective [forward looking]. And when you extend the term of existing copyrights, you’re not creating any new incentive to do anything, you’re just giving more power or more reward to somebody who has already produced something. No matter what I do, George Gershwin [who died in 1937, but whose works remain under copyright] will not produce anything else. So it seemed to us contrary to the very core idea of what a copyright was supposed to be about, but what was salient to the court was the tradition of Congress always extending retrospectively as it extended prospectively. If you think about the purpose the framers had in being very restrictive around what they thought of as monopolies, it was to avoid exactly

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the dynamic we see right now: rich people, or powerful companies, or powerful interest groups basically buying off Congress to extend the term or extend the reach of copyrights. You can be damn sure that in 2018, there’s going to be a huge fight by the Disneys and the Gershwins and the Robert Frosts to extend the term of copyright again, and the only question is whether there will be any political will to resist it. Do you see activism increasing, as digital tools arm a new generation and perhaps give them more reason to fight against restrictions? Well, there are two important assumptions there. One is that people give a damn about the law; I think that as it becomes more extreme, people ignore it even more. And the second assumption is that there’s actually some way for people to affect the political process here. I’ve been very happy with the change that’s happened in recognition around this issue. When we started in 1998 on this battle, nobody understood these issues. And now I think the community generally understands it. If Disney had to fight to extend the term of copyright today, I don’t know that they could win. But 2018 is a long time from now, and keeping the issue salient in the public’s mind is a hard thing. Could you speak about “orphan works,” copyrighted works for which the rights holder can’t be found? Obviously, the Copyright Term Extension Act has created more orphans.

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There are two things that happen: one is, you give up the registry or formalities of copyright [by making it automatic]. Then you give up the easy ability to identify a copyright owner. The Copyright Office has finally sort of come around, saying, “Well, there’s an orphan works problem.” But then the response is to set up this elaborately complex procedure for saying that you’ve done a reasonably diligent search, and if you’ve done that, you don’t have to worry about the copyright any more. That’s focusing on the retail level, not the wholesale level. It’s imagining I found that one book, and I want to use it in my class and I’ve done a reasonably diligent search. It’s not thinking about the Brewster Kahles, who are the really important players for preserving and making our culture accessible, people who want to mass digitize works and make them available. Brewster Kahle is the entrepreneur who founded the nonprofit Internet Archive; he wants to scan and restore access to books that are no longer commercially available. Digital technologies increase the opportunity cost of an inefficient copyright system. Before digital technologies, if a book from 1950

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[went] out of print, it’s not a terrible thing that you can’t identify the copyright owner because it’s not as if some printing press is going to all of a sudden print thousands of copies. But now, you can have people like Brewster Kahle, who says, “I want every book ever, digitized and made available.” If you have to spend $15 [each] identifying the copyright owners, you can’t scan them, because the potential value here is so low for each book that the cost just makes it prohibitive. If you can’t find the copyright owners, then you can’t scan them. You’ve been on the board of the Creative Commons since its founding in 2001. To what extent has it caught on? Can you imagine a day when something like that might be adopted by some larger copyright owners, like the Disneys?

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Yes. The Creative Commons has grown substantially, much faster than we expected it would. For a while we were reporting about 150 million objects licensed under Creative Commons licenses. I think the real conceptual innovation that Creative Commons brings to the copyright debate is to begin to carve off what we call noncommercial uses from the reach of copyright. So two-thirds of our licenses have a noncommercial clause, which basically says you’re free to do whatever you want for noncommercial purposes, but if you start on a commercial purpose you need to ask us first. Now, copyright law never had that distinction built into it explicitly, but implicitly it was always there. For example, until 1909 copyright law basically regulated publishing, republishing, and vending. The only people who could publish were the people who had printing presses; the presumptive use of printing presses is commercial. The idea of printing and giving away books for free—it happened but it wasn’t a common thing. So by regulating publishing, you were indirectly regulating a commercial activity. After 1976 (and digital technology’s come along), copyright is automatic; it’s regulated. And every use of creative work in a digital environment produces a copy; therefore every single use is regulated by copyright law. What Creative Commons is trying to do is explicitly create the kind of distinction that was implicitly constructed before. The more we talk to big media-industry people about what we’re trying to do, and the more they look at what’s actually happening with their content and [consider] how to decide what they want to control and what they want to leave free, this line of noncommercial [use] becomes more and more compelling to them. For example, we’ve talked to some music companies about allowing kids to buy tracks from their favorite songs. So let’s say I want to

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buy the drum track or the a capella track from a song of David Byrne and then make a noncommercial remix of it. I can legally buy resources [the track] to engage in a kind of creative process [the remix]. It creates a market that doesn’t exist right now, and I’m allowed to engage in creative work without being called a “pirate.” Of course there are some control freaks who say, “Oh, God, the idea of my drum track being used by some kid is just too much.” But they’re like one percent or two percent. The vast majority thinks, “We don’t care about that, that’s fine.” So if we’re successful, [these] will eventually seem like the natural lines for the law to draw. You were also behind efforts to make CNN’s presidential debate coverage available on the Internet without restrictions, upon conclusion of each live debate. I started a campaign online, which was a letter signed by a whole bunch of right-wing and left-wing bloggers and activists, basically saying that the debates ought to be free; they ought to be put in the public domain or licensed under a CC license. The major networks now have agreed to essentially make them free. Nobody’s gone far enough, putting it in the public domain or using a CC license, but they’re making representations like, “You can use it without restriction.” NBC has a noncommercial restriction built into it. But it’s progress. And the point that I made when we launched this was to say there’s no reason to have copyright fights here. It’s not like you need copyright to create the incentive to debate. Copyright has no role here. So rather than us having all sorts of fair use fights about presidential debates, just leave it on the outside.

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How are countries other than the United States handling IP issues? One class of countries wants to sign free trade agreements with the United States, and the United States can use its power to force [these poorest countries] to adopt extreme IP regimes as a condition to getting access to our markets, [thus rendering] a third of their citizens criminals by ratifying these extreme agreements. The second class of countries are like England and Japan, which are now in this process of deciding whether to extend the term of copyright to match the United States. Remember, this whole idea of extending the terms this time around happened when Germany extended their term, then the European Union extended its term to match Germany. Then the United States said they needed to extend the term to match the E.U., but the U.S. extended their term beyond the terms of many countries in the E.U. So now you have the countries in the E.U. saying

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they have to extend to match the United States. It’s a never ending spiral of term extension. There’s a clear right answer: Don’t extend terms. And then the third class—the countries that I think are the best example in this—are Brazil, maybe India. Gilberto Gil, who is the culture minister of Brazil, has been pushing the message through government channels and also in the music world (because he’s also the most famous Brazilian musician) to think about copyright differently. And to think about it in this more balanced, as he calls it, third way. There’s no other government, I think, where there’s that kind of clarity at the top. And it’s a real inspiration. What was your reaction to the Gowers Review of Intellectual Property, published in December 2006? [Andrew Gowers, a former editor of the Financial Times, conducted a review of the U.K.’s Intellectual Property Framework at the request of the Chancellor of the Exchequer.]

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Almost without exception I agree with what this review said. The review adopted a very conservative perspective, a pure economic perspective: “Just tell me what the social good is you’re trying to achieve through this regulation, and let’s see whether it’s going to have such effect.” For all the reasons that we’ve been arguing from the very beginning, they concluded there’s no social reason to be extending the copyright term, period. So they adopted a very clear rule: never extend an existing term, there’s no reason to extend the term of recordings for another 45 years. What’s happened since is not so much that people who are focusing on the policy question have rejected it; people that have concern just for the rent-seeking have rejected it. And every once in a while you get some member of Parliament saying, “I think we’re going to have to extend the term of copyright.” I take this just to be a kind of measure of how corrupt the process has become. [The matter] has no relationship to the public good. So why are you doing it? Copyright is one solution to a public goods problem. We have lots of other ones. We provide security by paying for police, we provide education by paying for schools, we provide emergency services by providing for fire departments, we provide for culture by providing copyright. Now line all of those up and ask, in which of those cases have we ever decided to double pay for what we’ve bought? Only in the context of copyright. And it’s not even all the artists who get the benefit of it, because basically you’re giving it to people who have already succeeded in an extraordinary [way]. Anybody whose work, 50 years after it was published, continues to be profitable such that they care about this is not a starving artist. So it’s not just that you’re doubly paying for

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something, you’re doubly paying for something to the very richest of the class that’s affected. Filmmakers often feel stymied by the cost and difficulty of licensing others’ material. What stance should they take when licensing their own work out to others? When people want to borrow your content, you should adopt the principle that you think should have guided them. For example, in the Creative Commons movement, Gilberto Gil launched what we call the “sampling license,” which basically says, “You’re free to make samples of my work, even for commercial purposes, that’s fine. Except my song is my song, so don’t go selling my song, but you want to take my song and use it in making your song? That’s fine, go ahead and do it for free.” Because in his view, the ethic of a musician should be to build on the past, create something new and allow others to build upon it. Imagine that somebody makes a documentary about the war in Afghanistan and shoots thousands of hours of stuff, and—at least with respect to material that doesn’t have privacy interests or actors’ interests or something like that—takes what’s [left over] after he’s finished cutting and makes it available for anybody to use. You’re going to build this huge archive that people can begin to pull from freely or at the cost of processing, to build new documentary films. That would be a fantastic resource that could only be encouraged if documentary filmmakers begin to say, “What is the ethical way for me to behave as a documentary filmmaker?”

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Are there other ways that filmmakers can get involved in copyright issues? Beginning to figure out an appropriate structure of licensing for documentary films would be a great, important step. We want to encourage everybody to become a filmmaker, just like we want to encourage everybody to learn to write, not because we believe everything that’s written can be published in The New Yorker, but because the critical thinking involved in learning how to write is what we want citizens to have. So, too, do we want citizens to have the critical thinking that comes from learning how to make a film. To encourage that, we’ve got to move away from a model that assumes that when I use a clip I’m going to call so-and-so who is going to so-and-so who is going to talk to so-and-so until some lawyer figures out what the rights are, to a world where it’s just like going down and buying film for your camera. The difference is not so much the cost, it’s the uncertainty and delay. That’s why CC licenses become an important part of this. You know right away what the freedoms are and you can act on [them].

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We’ve developed a new technology for the CC licenses so you can have back-up commercial licenses. So if you don’t satisfy the CC terms, click through and you’re taken to a site that says, “Okay, here are the terms for commercial use.” In principle, as a documentary filmmaker you could release all your stuff, what you used and what you didn’t use, under a noncommercial license with a click-through if you want commercial use. That’s the kind of ethic we need to begin to develop here. And recognize, if we don’t develop it, then there’s a whole generation who will just say, “Fuck it. I don’t care about the rules, I’m just going to do what I do and who cares what anybody says.” And in that sense, sometimes I feel like the great apologist for the copyright system, because I’m trying to build an alternative that actually preserves the core of what copyright is, against a movement that’s very vibrant right now, which basically says throw copyright away. On the Internet, copyright is often not honored as materials are incorporated without permission into user-generated content. Do you think this is motivating efforts to bring the web “under control,” threatening net neutrality? 208

Absolutely. The ongoing copyright wars give a justification to a lot of activity, a lot of changes which otherwise would seem insane. So we begin to justify building in controls into the network to monitor and track and identify people violating copyrights. They encourage technologies that identify copyrighted material and shut things down on the basis of that identification. And so they build an infrastructure layered on top of the original infrastructure of the Internet for enforcing copyright rules. Now I wouldn’t oppose such an infrastructure in principle, as long as the underlying copyright rules made sense of the technology. But the problem here is that we’re building a set of tools to enforce a copyright system from the 20th century, and so it’s an extraordinary step back from the potential of what the Internet could be. It also creates pretty dangerous incentives because it begins to feel like [the job of a carrier] to police for copyright violations or for offensive content that happens to be unpopular in Minnesota or whatever. That really threatens one of the most important core values of what the Internet is. That’s Orwellian. Yes, but worse, because the thing that people never sort of recognize about Orwell’s vision is that he had such a limited view of the technology. So even when you had the television screen that was watching you,

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you knew where you could stand so it couldn’t see you. And you knew at the other end there had to be a person who probably had a hundred television screens he was watching, and so you had a lot of flexibility there. But [on] the Internet, there’s no place to hide. You don’t know when you’re being watched. It’s not a person, it’s a machine that’s watching you, and it’s very good at being able to identify stuff that somebody ought to look at. So it’s not like the underlying values are as bad as in 1984, but the technology for surveillance is way better, beyond anything George Orwell ever imagined. And this is also the driving force behind the movement calling for network (or “net”) neutrality. The thing to remember about net neutrality is that this is, actually, a very old debate. The Internet was architected to respect a principle called “the end-to-end” principle, which basically said, “Architect the network so that all the intelligence is at the edge of the network.” The consequence of that was that network owners didn’t have the power to pick and choose content and applications, because the network didn’t tell them what they needed to know in order to pick and choose applications. That was the first version of the Internet. Now layer on top of it technologies for identifying content or applications, and now you have the ability to pick and choose applications you like and don’t like. Once you have that ability, you [can] begin to bias the network in favor of things that happen to benefit your business model and against things that don’t.

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By 2006, when you testified before Congress about these issues, there seemed to be a lot more momentum. I’m excited and surprised, really, by the explosion of activity. In the Democratic party it’s almost taken for granted we’re going to protect network neutrality, and the Republicans don’t have the courage to raise the issue right now. But the reality is that the devil here is in the details, and when they finally get down to writing legislation, millions of lobbying dollars I’m sure will begin to have their effect. It seems that the general public understands the concept of net neutrality better than they understand copyright extension and content accessibility issues. Yes, although if copyright extension came up again, the same people who have made network neutrality the central issue would make copyright just as understandable.

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In your books, you tend to come off as a bit of a pessimist, but underneath that I have the sense that you’re an optimist. Oh, I’ve just become an optimist. When I wrote The Future of Ideas, this was 2001; even Free Culture was 2004. At that point the world wasn’t really yet getting it. But if you look at circa 2006, 2007, that’s changed pretty substantially. I think that two things have happened. One is that there’s a better recognition in the public, but two, there’s a lot of money behind getting copyright right now. If you look at the YouTube merger [Google bought YouTube in November 2006 for 1.65 billion dollars’ worth of Google stock] and the alleged set-aside for copyright issues, it’s not going to take long before [Silicon] Valley begins to wake up to the fact that getting these issues right would produce extraordinary value in the technology community. I’m optimistic that when money and ideas are on the right side, we begin to get things right. I hope today to send off to the publisher a kind of final book I’ll write in this phase, which is much more optimistic about it.

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CHAPTER 14

Fair Use As discussed in previous chapters, American copyright law was written into the U.S. Constitution to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The founders of the United States also wrote a Bill of Rights, including a powerful 45-word First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Free speech principles form the basis of an important exception to U.S. copyright protection, known as fair use.

The “Metaphysics of the Law” Fair use was first introduced as a factor in copyright law in 1841, in Folsom v. Marsh. The Reverend Charles W. Upham, a member of the Massachusetts House of Representatives, had written a two-volume book about George Washington. The book drew heavily on Washington’s letters as collected, published, and already copyrighted by scholar Jared Sparks in his 12-volume The Writings of George Washington (published between 1834 and 1837). While more than 40 percent of Upham’s book—353 out of 866 pages—were letters from Sparks’s collection, those letters represented less than four percent of Sparks’s overall book. It was a difficult case, Circuit Justice William W. Story noted. “Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile [sic] and refined, and sometimes, almost evanescent.” The judge argued that “the

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question of piracy” may depend “upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information.” In establishing some of the principles of what would become known as fair use, the judge wrote, “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purpose of fair and reasonable criticism. On the other hand . . . if he thus cites the most important parts of the work, with a view not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.” In the end, the judge ruled against the Upham publication, finding no bad intent on Upham’s part but worrying that if one author could use 319 of Washington’s letters (protected under Sparks’s copyright), what would stop other authors from using more, or even all of them? Furthermore, the copyrighted letters gave Upham’s work “its greatest, nay, its essential value” and without them, the book would “fall to the ground.” The case may not have defined fair use, but scholars agree that it helped initiate a conversation that is still underway some 170 years later.

U.S. Copyright Law: The Four Tests Section 107 of the U.S. Copyright Act of 1976, “Limitations on exclusive rights: Fair use,” includes a list of the various purposes for which the reproduction of a particular work may be considered fair, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Section 107 also states that in determining whether or not a particular use is fair, “the factors to be considered shall include— 1.

2. 3. 4.

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”

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In evaluating a fair use claim, courts consider all of the tests, although the individual nature of each case means that the relative weight of a particular test may vary significantly. Let’s look at these more closely.

Test 1: The Purpose and Character of the Use The first test, regarding “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” is often misunderstood by people who conclude from it that only nonprofit or educational projects can take advantage of fair use. This isn’t true; many commercial projects and products have been successful in their claims. Nonprofit or educational (in its broadest definition) purposes may count a small additional amount toward a successful consideration of fair use but are not determining factors, based on actual case law. Furthermore, even within the category of films that are nonprofit and/or educational, the range of styles, approaches, and uses of third-party materials is quite broad; this also helps to argue against any effort to more clearly delineate how either term is defined. As archivist Rick Prelinger notes, “A lot of the great documentary work that’s been done in the past few years doesn’t look like a conventional documentary anymore. It might be experimental, it might mix fiction and documentary, it might be a film that actually seems to be a drama but in some ways is more important as a documentary. I think we have to be very careful not to start casting these categories in stone, so that filmmakers will continue to enjoy increased creative freedom.” Instead, to understand this test more clearly, consider that it’s applying a different criterion. “At issue is whether the material has been used to help create something new, or merely copied verbatim into another work,” is the explanation offered at Stanford’s Copyright & Fair Use website (http://fairuse.stanford.edu). The site continues: “When taking portions of copyrighted work, ask yourself the following questions: ■ ■

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Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?”

Considering these questions, it’s perhaps easier to see how a reference to a literary work in the creation of new and original criticism is fair use.

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Parody and Satire The Stanford explanation should also help to explain why parody or satire are considered transformative and generally protected as fair use. In addition, these forms of speech perhaps most clearly shine a light on the First Amendment roots of fair use doctrine. As explained on the informative website of the Washington-based First Amendment Center (www.firstamendmentcenter.org), both parody and satire “have served for generations as a means of criticizing public figures, exposing political injustice, communicating social ideologies, and pursuing such artistic ends as literary criticism.” To inhibit such speech runs counter to the basic tenets of democracy.

Test 2: The Nature of the Copyrighted Work

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This refers to the earlier, already-copyrighted work that is being borrowed or derived from; the protection of certain works may be stronger than others. For example, when the courts consider whether a violation has occurred, they may grant more protective weight to works that spring from someone’s creative imagination (screenplays, films, poetry, prose fiction) than to works that offer a synthesis of existing research, such as a scientific journal article, or that recount a true story, such as a magazine article. But be careful: While the facts in these materials are not protected, their authors’ treatments of them—the expression of those facts—is.

Test 3: The Amount and Substantiality of the Portion Used This has proven to be another key test; case law has repeatedly shown that the courts weigh this heavily in their decision making. If you take too large a portion of someone else’s work (overexploit it), it can be quite damaging to what might otherwise be a strong fair use case. You should only use as small a portion as is necessary to illustrate your point or accomplish your purpose. The case of The Definitive Elvis, discussed later in this chapter, is a good example of this.

Test 4: The Effect of Use on the Potential Market or Value Looking back at Folsom v. March, a determining factor was the judge’s concern that if Upham could use 319 of Washington’s letters, what would stop another author from using even more? At what point

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would the letters be so widely available that Spark’s copyright would be meaningless, and there would be no reason to purchase his set of books? In a more recent example that illustrates two of the tests, Castle Rock Entertainment succeeded in stopping Carol Publishing Group from marketing The Seinfeld Aptitude Test, a trivia quiz book. Carol argued fair use, but the court ruled that Carol’s publication of the book impeded Castle Rock’s ability to publish its own book of that nature, and furthermore, the use was excessive: Carol’s book relied completely on characters and plots that belonged to Castle Rock.

Legal Challenges Each fair use claim is weighed on its own merits against the four tests. Here are some examples of case law that supported, and in one case, denied, fair use claims against complaints brought by copyright holders.

The Wind Done Gone In her 2001 novel, The Wind Done Gone, author Alice Randall built on events in Margaret Mitchell’s 1936 classic, Gone with the Wind, to tell an original story from the perspective of the plantation’s slaves. Although Randall invented her main character (a slave who is half-sister to Mitchell’s heroine, Scarlett O’Hara) and never specifically identified Mitchell’s characters or location, the Mitchell estate claimed copyright infringement and got a judge to block publication. A court of appeals ruled that the injunction amounted to “unlawful prior restraint in violation of the First Amendment.” The book was published, and the parties reached a settlement. The book still bears the words “The Unauthorized Parody” on its cover. It’s interesting to note that in countries with strong moral rights laws (Chapters 11 and 15)—notably including much of the European Union—a fair use case such as this is far less likely to succeed, according to British IP attorney Hubert Best (Chapter 15). In France, for example, an author’s moral rights survive in perpetuity, even after copyright has expired, giving heirs the ongoing right to protest new works that draw in whole or in part on the originals. Occasionally they are unsuccessful, as in 2001, when the heirs of French author Victor Hugo tried to prevent an author from publishing a novel that borrowed characters from Hugo’s 1862 novel, Les Misérables, arguing that only the original author (Hugo) had the right to create a sequel. The French court refused the suit and, according to The (London) Independent, “pointed out that

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Hugo was an ardent defender of freedom of speech and believed that all literature should be in the public domain, after a writer’s death.”

“Pretty Woman” In 1990, the group 2 Live Crew and their record company were sued over publication of their song “Pretty Woman,” a commercial hit that drew significantly on Roy Orbison and William Dees’s 1964 classic, “Oh, Pretty Woman.” The first court hearing the case found for 2 Live Crew, but a court of appeals reversed that decision. It then went to the U.S. Supreme Court, which again found for 2 Live Crew. The case can be read online (see Part 4 for the link) and offers a fascinating look at how different courts apply and balance the four tests.

The Grateful Dead: The Illustrated Trip

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In Bill Graham Archives v. Dorling Kindersley Publishing, Inc. (2006), the Bill Graham Archives sued a publishing company over its reproduction of original concert posters in their book, The Grateful Dead: The Illustrated Trip. The Graham Archive owns hundreds of full-sized posters, and the book used small, photographic images of seven of these in montages showing scenes from the years when the Grateful Dead flourished. The courts ruled in favor of the publisher, determining that the posters had not been overused, the book didn’t depend on them, and the original posters were transformed (from items publicizing a concert into artifacts that contributed to the telling of social history).

The Definitive Elvis In this widely-cited case, a documentary production company, Passport International Productions (also known as Passport Video) and its owner failed to convince courts that their use of Elvis Presley material constituted a fair use and not, as plaintiffs argued, copyright infringement. In February 2007, after a five-year legal battle, the U.S. District Court in Los Angeles awarded Elvis Presley Enterprises, SOFA Entertainment (which distributes The Ed Sullivan Show and compilations of Elvis performances), and songwriters Jerry Leiber and Mike Stoller (whose songs Elvis sang) $2.8 million in damages and attorneys’ fees. Passport had produced and sold a boxed set of eight DVDs, The Definitive Elvis. The 16-hour series was advertised as “brimming with classic film clips, rare home movies, never-before-seen photos,” according to the court record; in fact, the filmmakers promoted the series as containing “Every Film and Television Appearance . . . as well

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as Rare Footage of Many of Elvis’ Tours & Concerts.” In arguing that their use was fair, the filmmakers noted that the work was a biography of the singer and included some 200 interviews they had shot, along with clips. Working against this claim, however, was the extent to which the clips had been used, both in terms of their individual length and as a portion of the entire original. Court records state that one excerpt from The Steve Allen Show played continuously for over a minute and included “the heart of Elvis’ famous ‘Hound Dog’ appearance.” Nearly all of Elvis’s appearances on The Steve Allen Show were featured in The Definitive Elvis. (The fees to license some of these clips, had licenses been sought, would in some cases have been $10,000 per minute, not including music rights.) “This is a good case to illustrate all the things that you shouldn’t do,” says Dale Nelson, an intellectual property lawyer for Warner Bros., which owns motion pictures in which Elvis appears. (Nelson was also part of the legal team involved in a successful follow-up suit, brought by the studio when Passport revised the series and tried again to release it.) “You don’t use too much. You don’t use clips that are too long. You don’t repeat use of clips. You don’t use them as filler. You don’t use them for the entertainment value alone,” Nelson says. By crossing the line, the filmmakers went beyond use that might otherwise, in a biography, have been considered legitimate. This case also illustrates how the courts consider the fourth fair use test: The Definitive Elvis would have affected the market value of a retrospective collection that one of the plaintiffs planned to release, and they had refused to license certain material to Passport for just that reason.

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Legal Challenges: Another Perspective What happens when it’s not your use of copyrighted material that is being challenged, but someone else’s use of your copyrighted work? Knowing what’s fair use and what isn’t can help independent filmmakers guard their own rights, as the following example shows.

Drive-In Blues Independent filmmaker Jan Krawitz spent two years making her documentary Drive-In Blues, “part elegy and part celebration of the drive-in movie theater,” she says. She filmed interviews and conducted an intensive search for archival materials, hoping to acquire trailers as well as film clips reflecting the onscreen “food ads, time clocks, and other promotional gimmicks” associated with the industry. Krawitz

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painstakingly followed the leads of former drive-in owners, collectors, and others. With perseverance and some strategically placed ads in targeted publications, she found most of what she needed and created a unique, 28-minute,16 mm film.

218 From Drive-In Blues. Image courtesy Jan Krawitz.

Seven years after her film was released, Krawitz was contacted by an associate producer at ABC’s Good Morning America Sunday show. “She was doing research for a story about drive-in movie theaters and had learned about my film,” Krawitz says. At ABC’s request, she sent a VHS copy with burned-in timecode, with the understanding that if they wanted to license any of her footage, she would negotiate a per-second rate based on the total running time of the selects (and send a clean version). Krawitz never heard back, so she assumed her footage wasn’t suitable. Still, with an ongoing interest in drive-ins, she didn’t want to miss ABC’s story, and so she (fortuitously) set her VCR to tape it when it aired. “When I played the tape, I was stunned to see that their opening shot was original material from Drive-In Blues,” Krawitz says. “As the four-minute story progressed, I observed how artfully they had integrated 77 seconds of my footage into their program.” (Krawitz subsequently learned that the associate producer had tracked down a clean 3/4 video copy of the film from the PBS station that had aired it, and apparently mastered from that.)

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The program is a news magazine, but that doesn’t give it a fair use pass if the use wasn’t transformative, which it wasn’t—the program’s use of the footage was essentially the same as Krawitz’s. Furthermore, “there was no aesthetic differentiation between their footage and mine, nor any attribution in the credits,” Krawitz says. “A viewer would have assumed that all of the footage originated from their cameras.” The quantity of material used was also significant, she notes: “Footage appropriated from Drive-In Blues constituted 31 percent of their story.” Finally, how they used it made a difference. “There was no critiquing function, and the intent of the show was purely commercial,” Krawitz says. The only test that her claim of copyright infringement might not meet, she realized, was market effect: “I could not convincingly argue that their use of footage from Drive-In Blues had compromised the potential earning power of my film, meager as it was.” To Krawitz, the copyright infringement was clear: The producers knew that she owned the rights and yet failed to obtain permission. With the advice of a friend who was a lawyer, she sent a letter to the network documenting the infringement and demanding a higher usage fee than she would have previously negotiated. She says that program staff members, and eventually network lawyers, tried to suggest that the infringement was merely an oversight. She countered by asking how understanding ABC would be if she—an independent documentary filmmaker—made a film, “31 percent of which was comprised of unlicensed, copyrighted footage owned by ABC.” Eventually, the network paid a fee (somewhat lower than her letter demanded, but more than she would have asked initially). They returned all copies of her film and agreed not to rebroadcast the material without her written authorization.

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Myths about Fair Use Much of intellectual property law, but particularly fair use, is filled with shades of gray. This is both by necessity and by design, because intellectual property and its many uses can be difficult to categorize. The law is believed to work best when challenges can be considered on a caseby-case basis, and even judges hearing cases may disagree (at times quite vehemently) about which party should prevail and why. While the lack of specificity may be beneficial, it has also led to some common myths about what constitutes fair use. All of the following are false: ■ ■

You can quote up to 50 words of text. You can quote up to eight bars of music.

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■ ■

Spot news coverage is always protected by fair use. If you want to claim fair use, keep it a secret; never go to the copyright holder.

None of these misconceptions is true. Filmmakers may claim a “fair use” of certain copyrighted materials subject to the law and tests as described earlier, period. However, there are times when the copyright holder will be the one adhering to the myths. For example, you may approach an author to ask permission to quote a few lines from her novel on your film’s soundtrack. You know the use doesn’t qualify as a fair use, but the novelist may ask, “Why are you wasting my time? Don’t you know that up to 50 words is fair use?” In such a case, go with the copyright holder’s view, whether it’s accurate or not. If she believes the use is fair, ask for a nonobjection letter (see later) and go ahead and use the quote.

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Until very recently, many if not most independent filmmakers in the United States, especially independent documentary filmmakers, were reluctant or unable to claim fair use for a number of reasons. There were questions about how to apply the four tests to the specific circumstances of filmmaking. Those responsible for providing legal counsel to film projects nearly always recommended the “safe” approach, which was to license anything and everything (unless it was clearly in the public domain). Failure to license all copyrighted material jeopardized a project’s chances of reaching mainstream venues, including festivals, broadcast and cable television, and theaters, because those venues required evidence that filmmakers had errors and omissions liability coverage. To qualify for such coverage, filmmakers had to show that they’d cleared all rights to third-party materials in their films. No proof, no policy, no distribution for the film. But think about it: Everyday life is chock full of images and sounds that are copyrighted, trademarked, and otherwise owned. They are so omnipresent that documentary filmmakers may not even notice them until after the shooting’s over and they’re in the editing room. Suddenly they notice the posters on the teenager’s wall, featuring models, rock stars, sports heroes. They see the logos on the family’s clothing and gear, hear the radio playing in the kitchen, the ring tones on characters’ cell phones, the TV shows playing in the background. In people’s homes, on city streets, in high schools and at sporting events, the rights-protected world is inescapable.

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What could filmmakers do? Previously, many suspected that the use of some images and sounds didn’t need to be licensed but instead qualified as fair use. But the David versus Goliath nature of such challenges tended to pit small, independent filmmakers against large and powerful rights holders. Unable to afford either legal counsel or the time necessary to go through a court trial, no matter how justified their claim of fair use, many filmmakers felt they had no choice but to pay high licensing fees or remove or replace copyrighted material, thus altering the truthfulness or accuracy of the original scene.

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Frame grab from Sing Faster: The Stagehands’ Ring Cycle. As filmed, the television image showed four seconds of the animated series The Simpsons. Under threat of legal action by Fox, faced with a $7000 license fee, and unable to fight a legal battle over fair use on the eve of broadcast, producers of Sing Faster digitally replaced the four seconds with public domain footage of a nuclear test, seen here.

Best Practices in Fair Use In November 2005, help arrived, as the Center for Social Media at American University released the Documentary Filmmakers’ Statement of Best Practices in Fair Use, available online at www.centerforsocialmedia. org/resources/fair_use/. Created with funding from The Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation, the Statement was jointly authored by a handful of media organizations in consultation with two academic organizations (including the Center for Social Media) and a legal advisory board. The Statement “makes clear what documentary filmmakers currently regard as reasonable application of the copyright ‘fair use’ doctrine.”

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The document includes a preamble and background information and offers some common misconceptions about fair use. The statement itself is “organized around four classes of situations that [documentary filmmakers] confront regularly in practice,” with a look at the principles and limitations involved for each. ■ ■ ■ ■

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ONE: Employing copyrighted material as the object of social, political, or cultural critique; TWO: Quoting copyrighted works of popular culture to illustrate an argument or point; THREE: Capturing copyrighted media content in the process of filming something else; FOUR: Using copyrighted material in a historical sequence.

In other words, the statement applied the four tests to the specifics of documentary filmmaking and offered the greater community—including legal, insurance, and industry executives—a common understanding of where fair use was relevant. The document helped to articulate an industry standard and thus offered (and continues to offer) consistent and credible support for independents who want to claim fair use. Space prohibits us from reproducing it here, but do download and study the eight-page document closely. It could save you a lot of trouble—and money.

Origins of the Documentary Filmmakers’ Statement To understand the impact of the Documentary Filmmakers’ Statement of Best Practices in Fair Use, it’s important to consider the forces that led to its creation. The effort was led by Patricia Aufderheide, director of the Center for Social Media and a professor in American University’s School of Communication, and Peter Jaszi, a professor of law and faculty director of the Glushko-Samuelson Intellectual Property Law Clinic, also at AU. For Jaszi, the focus on fair use emerged from his growing realization that the expansion of copyright was not “unambiguously a good thing” simply because it creates wealth, he says, or, more specifically, “redistributes wealth.” Jaszi also realized that there were problems with how the legal community was looking at creative work and fundamentally misunderstanding (or perhaps disregarding) the nature of the creative process. Much of copyright law, he says, is “based on an ideologically-determined misconception that it’s all about the unique individual genius who makes things out of nothing.” Instead, he says, as those involved in creative work are aware, creation is more often

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“a kind of slow, gradual process, in which people collaborate either simultaneously or serially” as ideas are challenged, refined, changed, updated, and more. Around the same time, Aufderheide, who has a doctorate in history and has written extensively on communications policy, was founding the Center for Social Media. “It was kind of an open mandate, what do we want to do with it?” she says. She attended a conference that Jaszi organized on copyright and the cultural commons and recognized the challenge copyright expansion posed for filmmakers. “You label everything in the entire expressive universe as ‘owned’ and then you’ve made a problem for anybody who wants to talk about it without having to ask permission of all those owners,” she says. She and Jaszi decided to explore the issue further. They began to contact documentary filmmakers to find out what their actual creative limitations were as a result of their understanding of copyright. When asked if they had ever had copyright problems, Aufderheide told us, the filmmakers said no: They respected others’ copyright in part because they wanted others to respect their copyright. But then the filmmakers would explain that their awareness of copyright also led them to completely avoid certain projects. Such as? “People would say, ‘Historical films, way too expensive these days, all that archival footage and problems. Music documentaries, huge headache, not getting near those. Anything to do with Hollywood, where I would have to quote a popular film? Off the charts.’ So what we ended up with was this long list of films that people automatically knew they would never make.” Aufderheide was stunned. “Not only are we learning that people are deforming their practice, but we’re learning that they’re selfcensoring because they can’t afford to even think about it.” Jaszi says he was surprised “about the degree to which filmmakers were not making these choices themselves; they were making these choices really under the coercive influence of others.” What filmmakers had viewed as an individual inconvenience was revealed to be an industrywide problem, documented in the final report, Untold Stories: Creative Consequences of the Rights Clearance Culture. The next step was to figure out what to do about the issue. That was when Jaszi pointed out that while there were a lot of unsolvable rights clearance problems, there was one that filmmakers themselves could solve: fair use.

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Immediate Adoption Publication of the Statement had an immediate and comprehensive impact, says Aufderheide. “It’s been used on broadcast, public TV, cable

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TV programs; it’s been accepted by all four of the E & O insurers that documentary filmmakers typically use. It’s been a great subject of interest and enthusiasm in the legal community.” For filmmakers used to seeing rights carved up for different markets and different time frames, fair use, and the shared, clear definition provided by the Statement of Best Practices, is liberating. A fair use claim is all-encompassing; it does not come with geographical, market, or time limits. “Fair use is fair use is fair use. It’s in perpetuity,” notes Aufderheide. Stanford University’s Anthony Falzone elaborates: “It works in all media. There’s no distinction about whether it works in DVD, TV, or what have you. If you’ve got the fair use right to use it, it’s going to work in every medium.”

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Hip-Hop: Beyond Beats & Rhymes Asked for an example of a film that may be richer in archival materials due to the Statement of Best Practices, Peter Jaszi mentions HipHop: Beyond Beats & Rhymes, a documentary by Byron Hurt that aired on the PBS series Independent Lens early in 2007. “We started talking with Byron just about at the time that the Best Practices were coming together, and he sort of took direction from them, and then was able to persuade ITVS and PBS to go along based on them,” says Jaszi. “The film is chock full of music quotes; some are critical, because it’s a film that’s about hip-hop, and some fall into the incidental use category. There also are wonderful examples of illustrative montage,” he notes, including a sequence in which the filmmaker explores violence in American entertainment, with a montage of very brief clips from westerns and gangster films.

Fair Use and International Distribution Fair use is unique to U.S. law. “Other countries have doctrines that are similar, but they are not the same,” says Anthony Falzone, an attorney. What this means for filmmakers who want to distribute internationally is that they need to educate themselves about the laws in those other countries, because fair use will work differently there, “if at all,” he says. An intellectual property lawyer under your own retainer should be able to tell you what countries will recognize your fair use, and for which countries you may need to either clear rights or remove materials to enable foreign distribution. For more information about IP differences in Europe, please see Chapter 15.

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Fair Use in Action If your use of a copyrighted image or clip or song is a fair use—you have read the Statement of Best Practices and understood it, and perhaps run your argument past your project’s lawyer, and you still feel confident that if challenged, your argument for fair use holds up—then you don’t need permission from the rights holder. With that said, there are reasons why you may want or need to be in contact with the rights holder.

Notifying Rights Holders about Fair Use Some filmmakers notify rights holders about fair use of materials as a means of preventing trouble later, even if they can get the footage through other means. If the rights holder concurs that you have a fair use, they may be willing to provide a nonobjection letter, stating in writing that they will not sue you for your use of their clip. If you must obtain a master directly from the rights holder, and they’re sympathetic to your claim, they may agree to furnish you with the master for a dubbing fee alone, or for a reasonable fee that represents their time and effort as well as lab costs. More likely, though, they’ll deny your fair use claim—and it will be up to you to decide how to proceed.

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Isn’t it risky to notify the rights holder? “A lot of people will tell you (and I’m afraid some of these people are even lawyers) that if you ask permission, you lose somehow all or much of the merit of your fair use claim, despite the fact that the Supreme Court has said exactly the opposite,” says Peter Jaszi. “When I give anybody advice about this, I always encourage people to get in touch with the copyright owner unless they’re absolutely sure that they’re going to have a door slammed in their face. And even then sometimes it’s worth going through the exercise because in fact nothing helps your fair use argument more than being turned down on a content-based objection. If someone were to actually say to you, ‘I’m not going to license you that footage because I don’t like your project,’ that’s bankable.” As an example, consider Robert Greenwald, whose documentary, Outfoxed—a critique of Fox News—used a substantial amount of the network’s footage without permission. Fox didn’t challenge him. “If there’s one thing that fair use clearly protects, it’s your right to use copyrighted material to critique it or analyze,” notes Anthony Falzone, who was a legal advisor to the project. “And that’s exactly what Outfoxed did.” Had Greenwald asked Fox for permission and been refused (or had they

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charged unreasonable fees as a means of dissuading him), it might have even strengthened his fair use case, had he needed to present one.

Does this mean that any time I’m turned down by a rights holder, I can claim fair use? No, this only applies to materials for which you have a legitimate fair use claim. Your other use of copyrighted material must be with the permission of the rights holders, and they can and sometimes do refuse to grant that permission (or they set fees or conditions that effectively prohibit your use). Although frustrating, this refusal alone does not grant any kind of “fair use” status. What if I decide later that my use is a fair use? It is possible that you could try to license footage, get turned down, and then realize that your use of the footage should fall under fair use, or perhaps you edit your film to better justify a fair use claim. In that case, the refusal by the rights holder to license the work does not alter your claim to fair use, if it’s legitimate. 226

Getting Materials from Rights Holders As described above, you sometimes have no choice but to get materials you need (a screener, master, or transparency, for example) from the rights holder. At what point, if at all, do you tell him that while you want the materials you don’t intend to license them because you’re going to claim fair use? First, you may not need to say anything, especially at the screener stage. You’re still just gathering materials and honestly don’t yet know what you’ll end up using, or how. You pay whatever the screener fees are and get the information you need about whom to contact when it’s time to negotiate rights, and you leave it at that. When it comes to masters, you’re in a more difficult place. You can try to get the rights holder on board, as previously discussed. But as you might expect, in many cases, the copyright holder will be intractable, saying she doesn’t believe in fair use or that your use isn’t fair. In that case, you have a couple of choices. If there is only one source for the material you need, you may need to abandon the fair use claim and license the material. If you can find the material elsewhere, and you’re confident in your claim of fair use (especially with a written legal opinion to back you up), then you might go ahead and use it from the other source and take your chances.

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When Agreements Tie You to Licensing At times an archive will require you to sign an agreement, even as you order screeners, certifying that you will purchase from them whatever you use. (NBC News, for example, will ask you to sign a kind of “prelicense” license agreement.) In that case, the agreement is binding and overrides any fair use claim.

Don’t Claim Fair Use as an Excuse to Cheat Don’t claim fair use just because you don’t feel like paying. And don’t agree to pay and then cheat someone at the last minute. It can seriously damage trust, not only between the rights holder and you, but between that rights holder and any other producer who contacts her down the line looking for material.

Lingering Misconceptions about Fair Use While the Filmmakers’ Statement has significantly changed the landscape for those whose use of third-party materials qualifies as fair use, misconceptions remain. “The most basic misconception that I run into is that it’s really chancy, so there’s a lot of danger,” Patricia Aufderheide says. “The other big misconception is that people don’t see it as a right. They still think of it as something you can get away with. And once again it’s this question of danger and fear, which I think has been created by people in whose interest it was to say, ‘This is very chancy.’ And then there are the lawyers who by definition are going to tell you that it is chancy, because it is more chancy than getting a clearance. The risk is extremely, vanishingly low if you abide by the terms of the statement, but it’s not a contract. Another misconception is that there’s a lawyer somewhere who will be able to assure you that you’re using fair use correctly. Really, the only people who can create that assurance are the people in the filmmaker community, which is why the statement is the gold standard.”

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CHAPTER 15

Fair Dealing, Moral Rights, and More: A Conversation with Hubert Best 229

Hubert Best (http://bestandsoames.com) is an internationally recognized expert in intellectual property and media law, particularly the exploitation of audiovisual and music content in new media environments. A partner at the law firm Best & Soames in London, he also serves as a European Union advocate through the Stockholm firm ENN and is the international legal advisor for the Federation of Commercial Audiovisual Libraries International, Ltd. (FOCAL). He has extensive experience advising archives, researchers, producers, and others on legal matters. He spoke with Kenn by telephone in March 2008. What is the history of copyright in the United Kingdom, and are there any major philosophical differences between how it’s viewed there as opposed to in the United States? In terms of the philosophical and historical origins, it’s the same. After all, it was English copyright that made its way across the Atlantic, originating from the Statute of Anne in the beginning of the 18th century. [The Statute of Anne, 1710, was “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such

Copies, during the Times therein mentioned.”] Of course there were earlier origins, but that’s generally taken to be the real beginning. Curiously enough, our first integrated copyright statute, in which the copyright in all the different kinds of works (or different kinds of uses) was assembled into one statute, was our Act of 1911, which is more or less the same time as your Act of 1909. I think this was partly in response to the general commercial things that were happening, but very largely in response to the coming into being of the Berne Convention [for the Protection of Literary and Artistic Works] at the end of the 19th century. Of course there were some crucial differences. Your law very clearly preserved common law copyright, which of course it still does. But you’ve now adopted the Berne Convention arrangements. Life plus 70 years, whether or not the work is formally registered.

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Exactly. Whereas before, the whole issue of publication and registration was totally central and crucial; I suppose that’s basically historical now. But nowadays, I think the crucial difference between the U.K. and the U.S. arises from your First Amendment. And also the fact that it’s really clearly stated in your Constitution, isn’t it—the purpose of copyright is the creation of new works. This really seems to suggest, overall, that it’s not generally possible to create, on a large scale, many new works unless one is involving, in some way or other, existing copyright works. Do you see what I mean? Absolutely. That creative and artistic progress depend on the ability to build new works on the shoulders of prior works. This really shows up in the whole “fair use” thing [in the U.S.], whereas here, this is not a part of the concept. Copyright [in the U.K.] is there to protect the exclusive rights of authors, full stop. Our copyright grew up from printing; the monarch granting monopolies to print books, music, and the like; giving printers a certain short period of exclusive rights in the works they had printed. When you look at judgments in this area, there seems to be almost a fiction: that it’s possible for more or less everything that’s protected by copyright to be totally original, unless it contains some acknowledged third-party rights. Obviously, that’s not right. It does seem to me that your First Amendment and also this particular Section 8 from Article I of your Constitution does—well, I just think it’s more realistic, frankly.

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And can you explain how authors’ rights, or “moral rights,” come into it? We have to deal with the authors’ rights countries a lot here, being now part of the European Union. In Germany and France, it’s said that the work is inextricably joined to the personality of the author. This idea arose in France, and it’s a mainland continental issue. The more southern countries are stronger on that; the more northern countries, like the Netherlands and the Nordic countries, their laws don’t take that to such an extreme, they’re more like ours. But then all the former Soviet Union countries (Russia itself, Ukraine, Armenia, Azerbaijan, and all those different countries), they’ve all got new copyright laws which are very much in line with this moral rights principle. The primary issue is the author’s moral right, [which is] often everlasting and can’t be alienated from the author. The economic right, which is what we basically regard as copyright, is for them almost a subsection. In the United States, we don’t have authors’ rights, per se. We have moral rights, but they only apply to the work of visual artists. Yes, specifically a painting or a sculpture or something like that. An author of a book or a composer of a musical work has no moral rights in the States. There was a very well known example, when [a] John Huston film [The Asphalt Jungle] was colorized in the States, and he objected to that and got nowhere; they just went ahead and did it. But in France, [his heirs] took [Channel 5] to court [for broadcasting it] and won on his moral right, on the grounds that he said he hadn’t intended them to be seen in color, he’d wanted them to be seen only in black and white. So that shows very clearly this whole difference.

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But there are differences, for example, between the United Kingdom and France—or were, until efforts were made in the mid-1990s to harmonize copyright throughout the European Union. Yes. Up until 1996, when a substantial film with decent finances was going to be produced in the U.K., all the rights would have to vest in the producer in such a way that all other contributors’ rights—the script rights, the director, composers of music, actors—all their rights had to be waived. The “author” of a film was considered to be the producer, who had no moral rights, but of course held all the economic rights by contract. The film was protected as a copyrighted work; the term was 50 years from the first publication of the film. It wasn’t like a book where protection was for 50, then 70 years after the death of the author.

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So the film producer had a sort of limited author’s copyright, derived from the collective work of the production team, but the members of the team waived their moral rights and the producer has none.

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Only an author—e.g., a scriptwriter or composer—would have had moral rights. They cannot be transferred inter vivos; they stay with the originator of the work until she dies; or, if she waives them, they cease. The producer had no moral rights, nor did performers. In fact, performers had no exclusive rights at all; their consents were needed in some circumstances, which could be given verbally or even by simply taking part in a recording. Whereas in a country like France, a film, an art film, had always been regarded as a work of authorship. And of course the author was the director, and so he the was the king and he had these moral rights of authorship, and the term of his economic rights was the full 70 years after death. Now, in order to harmonize the duration of copyrights in films, we [the U.K.] also introduced this term of 70 years after the death of the author. The “author” of a film is now considered to be the producer and the principal director. The producer’s (or production company’s) position is the same as it was, but the principal director—as an author in the true sense of the word—has moral rights. Secondly, the performers now have exclusive rights (to permit or prohibit the restricted acts, just like a copyright owner) and they also have moral rights. Of course, the producer/production company will still require all participants in the film to waive their moral rights. It’s just accepted in the U.K. On the continent, on the other hand, moral rights are the very foundation of copyright, and they can’t be waived. And in many countries they last forever. So it’s like a continuum, with France, Germany, and similar countries at one extreme, the U.S.A. at the other, and the U.K. kind of sitting in the middle, like it does in so many things. In the United Kingdom, when the 70 years on a film’s last “author” are up, does the film enter the public domain? Yes. On the expiry of the term of copyright, [it] goes into the public domain. Are there differences in how the public domain is defined there, as opposed to its definition in the United States? There are differences. All the U.S. government materials [are] in the public domain. Here, we have something called Crown copyright, and it isn’t in the public domain. Crown copyright now has a finite term,

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like any other work, which is defined in various ways. Except that the King James version of the Bible and The Book of Common Prayer—the Crown has perpetual copyright in those. In countries like France, Germany, and others, where moral rights exceed copyright terms, it seems that moral rights outweigh economic rights. But what they give you a right to do is, to some extent, limited. Different countries have different ones. For example, in France, there’s the droit de repentir, which is the right to withdraw your work, but it’s not commonly exercised; [you] have to compensate people who’ve made investments. Mostly, there are two rights: the right to be named as the author [droit de paternité] and the right to object to the work being treated in a derogatory way [droit au respect de l’oeuvre]. It’s still the case in all the continental countries that the real issue with copyright is the economic right, because that’s what enables the author to earn the money. But nevertheless, philosophically speaking, they regard that as only a minor extension of the basic moral right. Are the countries in the Commonwealth of Nations—Canada, the United Kingdom, Australia, etc.—consistent on this?

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No, they’re not quite. Every Commonwealth country that’s a member of the Berne Convention does have to have moral rights, but I would say that they have a different force in the different countries. Canada has been very much influenced by the French, and so Canadian copyright law does have a lot of authors’ rights influence in it. A good example of that is a case called Tariff 22. And it was about music, licensing of music rights. SOCAN, the Society of Composers, Authors and Music Publishers of Canada, wanted to compensate its members by charging Internet service providers royalties for SOCAN music cached on their servers. The courts eventually said they couldn’t. I think it’s fair to summarize the judgment of the Canadian Supreme Court in the Tariff 22 case as being that an Internet communication that crosses one or more national boundaries “occurs” in more than one country, at least in the country of transmission and the country of reception. Communication presupposes a sender and a receiver. A real and substantial connection to Canada is sufficient to connect the Canadian Copyright Act to an Internet transmission, and relevant factors include the place of the content provider, the host server, the intermediaries, and the end user.

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But the ISPs, according to the ruling, were not responsible for content if they were merely serving as a conduit. Provided that an intermediary ISP is content neutral (it does not engage in acts that relate to the content of the communication) and only provides a “conduit” for information communicated by others, it falls within the exemption of section 2.4(1)(b). If an intermediary ISP ceases to be content neutral—if it has notice that a content provider has posted infringing material and fails to take remedial action—the intermediary SP may be liable for copyright infringement. So underneath that is another issue: if ISPs can serve users anywhere, can Canadian copyright laws have jurisdiction outside Canada?

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[SOCAN took] a kind of maximal approach [to protecting artists’ rights, even across borders], which is a real reflection of the French view. This question originated with satellite broadcasting. In the Netherlands, for example, their position is that an Internet transmission is only made available in the place where it is actually made available. If somebody receives it somewhere else, well, “I can’t help that.” They call that the emission theory. The maximal approach [communication theory] is very typical of the authors’ rights countries. SOCAN is now seeking a tariff just on sites that post the music, so we’ll see how that goes. But the issue of licensing for the Internet is far reaching. Where does the World Intellectual Property Organization stand? The two WIPO treaties, which were meant to supplement the Berne Convention when it came to Internet and online stuff—the WIPO Copyright Treaty [1996] and the WIPO Performances and Phonograms Treaty [1996]—they dealt with questions like: What happens when something is put on the Internet? Is copying happening? Is distribution happening? But they never produced a conclusion about, Where is it happening? So this huge issue is up in the air, and it has a very big impact on, for example, music licensing. So we have a global market dealing with national and regional approaches to copyright and moral rights, strongly driven by the American entertainment industry and its perspective. I find I’m dealing with so many things—music, science, user-generated content websites, and all sorts of things which have been originated in America by people (including lawyers), who are steeped in U.S. copyright law, and they start from that basis: that copyright is an economic right, which can be traded any which way, as opposed to the authors’

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rights/moral rights approach. These things like the takedown provisions, this whole question of ISP liability and so on—what for us is completely outside copyright law—have made it, very sensibly, into your copyright law. The business models which are an outworking of the U.S. provisions migrate to Europe, where they just don’t fit and don’t work anymore. For example, if you look at YouTube or MySpace and look at their terms and conditions and the take-down provisions for the usergenerated content that’s being provided—that if somebody objects, do it like this, and this will happen and that will happen, and it will get taken down—all that is simply a mirror of the U.S. copyright law. That doesn’t necessarily work in Europe; doing all that doesn’t necessarily relieve the ISP or the organization of liability for copyright infringement. I thought that was terribly well illustrated in that Belgian case of Copiepresse and Google. [Copiepresse, an agency in Belgium that manages copyrights for a number of French and German language newspapers, sued Google in Belgium for violation of copyright. As it does in other countries, Google News provided search results (for free) that included not only links and snippets of text for current pages but also caches to earlier pages, some of which Copiepresse now only made available for a fee. While a similar case in the United States was decided in Google’s favor, in Belgium, based in part on moral rights issues, the courts ruled against Google.] [It] was a brilliant example, almost of two universes colliding. It comes from a different philosophical stance.

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Are there exceptions to copyright for certain uses, such as satire? This is taking us on to fair use versus fair dealing. [In the U.S.] you have fair use, and this encompasses its four tests and all that. Here, we don’t have anything like that. Fair dealing basically only applies in four situations: making copies for private study; copying for criticism or review; fair dealing for reporting current events; and some very specific aspects of educational use. That’s it. And in each of those cases, fair dealing is like a little subsection of the exception, where it’s saying that you can use it for this very limited purpose, and in addition, it has to be fair dealing. Each exception to copyright has to be very specifically framed in specific terms. So take a typical example where this comes up, fair dealing for criticism or review. You can take the whole long line of cases in the States, where material has been used for a documentary film, and quite a lot of copyrighted material can be used without infringing the copyright. There are many cases, but the funniest one I saw recently was a very, very

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funny film aimed at the MPAA [Motion Picture Association of America], This Film is Not Yet Rated. I could see, for all sorts of reasons, why that would not fit into fair dealing for criticism or review in the U.K., [primarily] because this wasn’t criticizing or reviewing the [individual] films. It was criticizing and reviewing the MPAA, which is an organization, not a work. Do you see? It’s either for specifically reporting current events, or specifically criticizing or reviewing the work or another work. Even then, it goes further than that; it goes on to say that the authors of the original work have to be acknowledged. Attribution.

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Attribution is a really important part of it. There is a section which says if it’s news in audiovisual media, if it’s impossible—not just inconvenient or difficult—to give an attribution, then that’s okay. But that exception doesn’t apply to fair dealing for criticism or review. In the MPAA film, there was no attribution as the different clips were shown. The attribution was a long string at the end, and I’m fairly clear from practice and court rulings that that wouldn’t be enough. Here, there would have to be an attribution on every film [clip] as a little subtitle or something like that. Which is very disruptive and cumbersome. Yes. So the issue is, for documentaries like that, in Europe, all the clips have to be cleared. That’s the only way. So even if a film succeeds in a fair use claim in the United States, if it’s distributed internationally there’s a risk that copyright holders could enjoin the film. Yes, absolutely. And now there’s one further distinction which I should make. These fair dealing provisions apply in the U.K., but continental copyright laws don’t have anything like that at all. There simply isn’t any fair dealing provision in France, Germany, Spain, Italy. So there, one is tied to very specific exceptions and that’s all. And in the U.K., fair dealing also comes into play in educational or classroom use. Yes. There again, our copyright act [of 1988] has very specific exceptions which apply to education. And each of those has a good many subsections. So for example, the first one relates specifically to things done for an examination, and it only applies to literary, dramatic, musical, or artistic works; it doesn’t apply to films. And then there’s another very

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specific one applying to sound recordings and broadcasts and so forth. And then it says it’s restricted to the person giving or receiving instruction, and it has to be accompanied by sufficient acknowledgment, and it must be noncommercial, and it mustn’t be done by any reprographic process, and so on. Now, certain of those educational exceptions are subject also to fair dealing. So you see, fair dealing is never like fair use is in the States, where it’s an overarching concept. Fair dealing is always a qualification—if you like, a further qualification—of a tightly defined exception, in our law. And there are these few cases where it can be used, some educational purposes. U.S. copyright law is somewhat vague when it comes to fair use, but intentionally so, so that courts can decide on a case-by-case basis. Whereas fair dealing, it seems, is so spelled out that artists may know better where they stand, but their hands are tied much tighter. It’s almost impossible to imagine a situation where an artist could use one of the fair dealing exceptions. Of course they could use it for their private study. But to make a public work of art, the only two possibly applicable [exceptions] would be reporting current events or criticism or review. Well, obviously, reporting current events would be of a very limited time period because the event would cease being current, and then the exception would no longer apply. In terms of criticism or review, I suppose you could say that you were making a criticism or review by way of satire. But it would be very clunky because you would still have to have all those acknowledgments and everything, which would undo a whole lot of the cleverness of what satire usually is.

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And yet the U.K. is a country that has a rich history of satire. There’s been a lot of discussion for years and years as to whether a specific parody exception should be introduced. Many continental countries have it. France has it. We don’t have it. Nevertheless, satire seems to thrive. Years ago, I had what would have become a case, if I could have advised the client that they had a case. And it was about a satirical television program we had, called Spitting Image [ITV, 1984–1996]. It was a semi-animation, done with rubber cartoon characters which they manipulated and filmed. And music rights owners wanted [me] to bring a case because their songs had been very strongly satirized, and they said that that was infringing their copyright. I trained at the Royal Academy of Music before I became a lawyer. And so I personally did an analysis. I wrote out, from listening to the tape of it, these songs on The Spitting Image, and then got the originals and

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analyzed what had happened. And I was quite clear that even though it was so obvious that these were satirizing those songs, I couldn’t say that a substantial part of any of those original songs had been reproduced. It was very clever. So I said to them: “[The U.K. doesn’t] have a parody exception, so in theory, you could bring a claim. But the test for copyright infringement is, Has the whole or a substantial part of your work been reproduced without consent? Bearing in mind all the tests for what is “substantial”—it can be quite small as long it’s significant. I said, “Taking the most conservative view, I still don’t think that your copyrights have been infringed. I can’t make out a case for it. Maybe somebody else can.” We still haven’t got a parody exception. Is it fair to say that fair dealing in Canada and Australia is similar in philosophical underpinnings, but not exactly the same in specifics? Yes, absolutely. Different interpretation. Is there anything in fair dealing that covers what we would call “incidental capture,” which happens, for example, when a filmmaker documenting reality can’t avoid copyrighted material—logos or background music, for example. 238

Well, there again, because of the way our law works, there is a very specific exception for incidental inclusion. It’s Section 31 of our Copyright Act. “Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.” That’s very specific, you see, as to what it can be incidentally included in. So the law doesn’t differentiate between incidental capture in vérité documentary and fictional work? That’s an issue here, too. When studios shoot a dramatic film, for example, and film a chase scene through a real landscape with billboards and that kind of thing, they often opt for clearing, or trying to clear, to take the safest stance. It would be exactly the same here, because the question comes up in every case: What does “incidental” mean? And your example of the billboards in the film: If it’s a feature film, an art movie, not just some piece of news reporting, then I think the answer might well be, “Yes, that’s not incidental, because you chose to film there. The billboard was there. You could have chosen to film somewhere where the billboard wasn’t.” I remember having to answer this question for one of our news channels a few years ago, when Margaret Thatcher was still in power. She was interviewed in Number 10 Downing Street, on the staircase. And behind her was a portrait of Winston Churchill, which was of course still in copyright. And they asked me, “Is this incidental?” I said,

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“Well, it’s a question of fact. Did it just happen that you managed to get her to stop on the stairs, or was she posed? If she was posed, I’m afraid it’s not incidental.” What we decided was, if it was simple to get the consent (the artist was well known), we would go with that; otherwise we’d think again. And it was simple, there was no issue. At the time, of course, it was also subject to reporting current events. I’m talking now about use of it for archival later on. In the case of the chase scene, a filmmaker might argue, “Well, if we picked another location, there would be four other billboards!” All I can say is, applications of this exception, incidental inclusion, in the U.K., the courts have always been pretty strict. Incidental does have to be really incidental. I should say that there’s a special section excluding music. So music can rarely be incidentally included; that will always have to be cleared. And that’s simply because when the act was framed, the music industry lobbied powerfully. In the United States, documentary filmmakers compiled a Statement of Best Practices in Fair Use, in which they argue that you’re compromising the integrity of a documentary if you have to change or eliminate music you couldn’t avoid capturing.

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We would have to remove that subsection [of our law] for music to be able to fall within incidental inclusion that way. What was your opinion of the 2006 Gowers Review? Our government a few years ago developed this ghastly cliché about public services, which they described as having to be “fit for purpose.” The Gowers Review was given the remit to determine whether intellectual property laws in the U.K. were “fit for purpose,” so their remit goes much wider than merely copyright. But in terms of copyright, the committee started a huge public consultation process, and did their own research, to try and find out where intellectual property laws either aren’t working or could be seen needing improvement. [The] report made certain recommendations. The big problem, as I see it, is that any change of any magnitude to our copyright law requires unanimity in the whole European Union. Because we’re really bound by the European Commission and Parliament, trying to harmonize the copyright term, satellite transmission provisions, and all those things—culminating last of all with this so-called “Information Society”—was a very long process.

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That’s the E.U. Copyright Directive, or the Information Society Directive (2001). The E.U. has published a number of directives on IP issues. Each of them progressively has become more and more prescriptive in terms of what the member states may provide beyond what’s already there. We’re in a situation now where no member state is actually allowed to introduce any exception to copyright in the digital environment except those which are listed in the Information Society Directive. So what that means is a lot of the seemingly sensible suggestions of Gowers, including an investigation into whether a kind of fair use could be appropriate or helpful—none of those can actually happen in the U.K. We would have to have a European Union-wide change. And I would imagine that getting any of these European Union directives agreed upon takes time.

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It took so many, many years to get the Information Society Directive finally drafted and promulgated, because there was such enormous political lobbying at every single stage. People in the Commission who were responsible said that they had never ever experienced so much [pressure] from every different side you could think of. And even then, it did an incomplete job because, for example, some very basic issues like, “Where is the ‘making available’ actually taking place?” simply couldn’t be dealt with. In terms of the Internet; communication versus emission theory again. Yes, that’s right. So there is the Gowers Review saying all these worthy things should be done, but those of them which would seem to me to be most worthwhile will probably never see the light of day. I mean, imagine trying to introduce fair use! Can you imagine those authors’ rights countries even beginning to look at that? Enabling orphan works to be used without danger of infringement is another useful proposal. If the Gowers Review had come out with those copyright recommendations 10 years ago, we could have implemented a lot of them, even though we were members of the European community at that time. But things have moved on, and harmonization has moved on, and the grasp of the Commission and Parliament has increased; that’s the way the European Union has gone.

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CHAPTER 16

Licensing Visuals At what point do you need to give rights holders information about your plans for your film and your use of their material? When do you begin to negotiate fees? How should you keep track of potential costs as you make choices about which third-party materials to include or exclude? What do you need to know about clearing film clips that represent the work of actors, writers, and directors who belong to unions? What kinds of records do you need to keep for work that is in the public domain or for which you’re claiming fair use?

Identify Potential Problems As Soon As You Can As you begin to find footage, try to determine what materials, if any, threaten to be difficult (if not impossible) to clear. Material might be challenging for a number of reasons. It might involve a range of underlying rights, for example, such as a recent Hollywood feature clip that includes actors, a soundtrack, and director and writer clearances; or a clip of someone singing a copyrighted song accompanied by a big band. Additional complications may arise from the clip’s ownership; for example: ■ ■ ■

An individual or entity known for unusual delays and complications in rights negotiations; An individual’s estate (heirs and trustees), who may be very protective of reputation, unusually intent on making a profit, or both; A corporation known for being extremely controlling of its image, intent on making maximum profit, or both;

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An individual or entity embroiled in some activity (a merger, prison sentence, product launch, bankruptcy) that is going to make their licensing of images a very low priority; Any organization, even a news organization, that does not normally store, provide, or license archival material and is thus not prepared to do so.

If you can anticipate problems, you can take appropriate measures. For one segment of Eyes on the Prize, for example, producers wanted to depend heavily on a U.S. Information Agency film about the 1963 March on Washington. At the time (the 1980s), USIA films could only be distributed and used overseas. For that reason, soon after production began, producers took steps to get an act passed by the U.S. Congress, and signed by then-president Ronald Reagan, to have that particular USIA film released. (USIA films can now be accessed in the United States 12 years after initial release.)

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Communicating with Archives Stay in contact with archives as you go through your production and postproduction process, and inform them of any major changes in your plans that may involve their material. (If the archives don’t hear from you for a while, they may contact you.) It’s especially important to keep the lines of communication open at the beginning and end of the editing period, so that neither of you experiences any unpleasant surprises.

Start with a Conservative Guess Most archives, when you first approach them, will ask about the markets you intend to license. You should give them your most conservative but truthful guess. If you’ve already committed to a distributor and/or broadcaster with known market requirements, be up-front about those requirements. Otherwise, if you’re just getting started and don’t know where you film will end up, just say that. If you’re pretty sure you’ll want festival rights, ask for those; the rate is usually low and will “get you in the game” by allowing you to obtain masters and finish your film. (This works particularly well for expensive rights to Hollywood clips; sometimes the studio or other archive may even suggest this.) If you have no intention of entering your work in film festivals but think you might need educational rights, say that. After film festivals, this is usually the least expensive market.

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Frame grab from Good Night, and Good Luck, showing the set replicating the 1950s studio of See It Now. On the monitors: an original episode, a 1950s Alcoa commercial, and the in-studio feed of actor David Straitharn as Edward R. Murrow. Note the CBS brand on the camera (left), which also required clearance.

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Begin Negotiating at Rough Cut By rough cut, you’re beginning to have a sense of which materials you might use in your final film, although of course changes will be made throughout editing. Still, it’s a useful strategy at rough cut to get back in touch with those who have lent you screeners and other third-party images for editing purposes. At minimum, you should let them know that you’re still considering their footage and are in the midst of editing. By staying in touch, you establish credibility, and the archives will know to keep your file open and not recycle any masters or other material they may be keeping on your behalf.

Keep Track of Your Archival Costs Rough cut is also a good time for you to analyze the nature and amount of third-party materials you seem to be using in your film and where they come from. If you don’t have too many archival “holes” and have a reasonable idea of how much you might be using from at least some sources, as well as a clearer picture of what rights you need to prioritize (such as educational, festival, and so on), you can begin to negotiate. It’s not necessary to lock anything down at this point, but the conversation should give you a reasonable cost analysis. Sometimes, at this stage, you and the rights holder might even develop some scenarios

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together; for example, a certain percent discount if you guarantee to use X number of stills or X seconds of footage in your finished film, based on your “in process” usage.

Finalize Negotiations at Picture Lock As we hinted at earlier, a benefit of negotiating early is that there will be fewer surprises as the offline editing nears completion, meaning that there will (hopefully) be fewer last-minute changes necessitated by the discovery that materials are unavailable or unaffordable. At picture lock, you’ll need to obtain a clean master from the archive for use in the online edit (see Chapter 7). In most cases, the archive won’t release this until you’ve negotiated and paid the license fee, along with any costs associated with producing the master (if it hasn’t already been made). So locking in license fees and contract terms corresponds to locking picture.

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Each item you want to license needs to be cleared with whomever is holding the copyright to that item at the time you’re attempting to clear it. This may be the original creator or her heirs, but it’s also common that with corporate mergers, buyouts, and takeovers, the copyright has been assigned and reassigned again and again. Research should tell you who the current rights holder is; this is the individual or entity from whom you will obtain a license. Note that your license then remains valid for the duration of the term you’ve negotiated, even if the copyright subsequently changes hands—whoever assumes the copyright must honor the terms of all existing active contracts. However, if at some point you need additional rights or an additional time period, then you will negotiate a new license agreement or addendum with the new copyright holder.

Can You Negotiate a Better Deal? Many filmmakers are finding that rights holders are not as flexible when setting fees as they once were. “Access to archival material has become continually more restrictive, and rates have skyrocketed,” says filmmaker Jan Krawitz. “This impinges on the creative process and often results in aesthetic compromises, made in reaction to economic imperatives.” Filmmakers hoping to negotiate deals should keep a couple of things in mind. First, visuals archives remain more willing to negotiate

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than music publishers and record companies. Second, many visual archives, even commercial ones, will consider giving documentary filmmakers a price break if they use a reasonable quantity of material. In some cases, “stepped” discounts may already be written into their rate sheets, meaning that the cost per use drops as use increases. Perhaps surprisingly, price breaks are less likely to be predicated on whether a project is documentary or drama than on whether it’s nonprofit or forprofit. With that said, even if your production company is a for-profit entity but you’re making a social issue or educational film on a limited budget, certainly speak to the top person at the archive to see if you can improve the terms of your deal.

Coordinate Rights, Get the Best Possible Term Think strategically when negotiating for rights. If a rights holder offers you a license with no expiration date—in perpetuity—for a rate that’s not too much more than a time-limited license, take it if you can afford it. Otherwise, for rights not affordable (or available) in perpetuity, try to synchronize the term (time period) expiration for all your archival and for both primary rights (for example, the clip itself) and underlying rights (such as music embedded within the clip). This way, everything that’s not available in perpetuity will expire around the same time, making it much easier to keep track of. Make sure that you get at least as much time as you need for existing commitments, and don’t sell your film short. Two years may be enough for film festival or museum use, less for corporate presentation, but 10 years is a better gauge for most other uses. Sometimes seven years is sufficient for educational use, but again, check with your distributor or broadcaster—or those you hope to have—to see what they require.

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Negotiate an Exchange of Materials Sometimes individual collectors and smaller archives are willing to accept a high-quality copy of the material they’re providing to you (in a format of their choice) as full or partial payment for rights. Or you might offer to give them your masters when you’re done with them in lieu of a rights payment. (This won’t work for commercial archives, where you’re required to return your masters when your project is done; even though you paid to have them made, they remain the archive’s property.) In addition, many archives, both commercial and noncommercial, put a clause in their license agreement stating that they get a copy of

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your finished show (a DVD is usually fine). The copy will allow them to ascertain that you used exactly the footage you paid for. Never release a copy to them prior to your film’s first public release. And unless you do it by choice, never let an archive contractually pressure you into giving them multiple copies or any rights or permission to exhibit or otherwise exploit the copy you give them.

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When you approach an archive for the first time, don’t be afraid to be enthusiastic. Many archive owners welcome your excitement about your subject and dedication to your film; they love film too. Some may even ask what budget constraints you have. If you’re scrupulously honest in your conversations with them, they’ll often do their best to accommodate any limitations you have. With visuals archives, sincerity, honesty, and passion really do count. It also helps if you present yourself as a qualified professional who understands the business and knows how to accurately assess your film’s market potential. Nobody’s expecting your film to be a blockbuster (although it would be nice!). Make an honest and informed assessment of its distribution potential and you’ll be taken seriously.

Per-Second and Per-Cut (or Clip) Minimums As stated elsewhere, when it comes to copyrighted material, try to use the most material from the least number of places. This keeps costs down in the early stages, and it’s especially important when it comes to licensing. One of the key reasons is that most archives charge a minimum— sometimes simply per project, but often per cut or per clip of footage used in the final film. To explain: ■

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Per second. In many cases, rights holders charge a 30-second minimum per project. This means that if you want anything from the archive, even if it’s a single second, pricing starts at 30 seconds’ worth at the negotiated rate. If you need less than 30 seconds total from the archive, you lose out. But the benefit of this method is that you are paying license fees for overall footage used in your film, whether it’s 80 seconds pulled from a single original clip or 80 seconds pulled from any number of different pieces of footage in their archive. Per-cut minimums. In addition to an overall project minimum, some archives charge you a minimum per cut. The most common

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minimum is 6.66 seconds, or 10 feet of 35 mm film. This minimum applies to runs of footage furnished by the archive; each edit you make in an original archival shot, whether it’s one second or 6.66 seconds long, will cost you the same. (The only time this isn’t true is if the original shot is short; they won’t penalize you for a shot that was shorter than the minimum when they gave it to you.) So at a hypothetical price of $10 per second, a three-second cut from this archive will cost you $66.60, as will a 6.5 second cut. You are penalized only for making your cuts short or creating a montage. Fees for a cut that runs longer than 6.66 seconds will be calculated at the per second rate; in this example, an eight-second shot will cost you $80. Per-clip maximums. Similarly, archives that put clips online (which may run 5–30 seconds, on average) are likely to charge by the clip and sell you a clip for a flat rate. There’s a big hitch, though: A “clip” for licensing purposes is usually defined as only 10 seconds long, so if the online clip is longer than that and you use more than 10 seconds, you’ll pay an additional 10 percent of the clip rate for every extra second you use. Say you negotiate a price of $1000 per clip. You find an online clip you like that’s 20 seconds long; you can only use 10 seconds of it for that $1000. You can cut up those seconds any way you want, but you must pay an extra $100 for every extra second of the original clip beyond 10 seconds that you use—and of course you don’t pay less than the $1000 if you only use four seconds of the clip. Think of it this way: If a per-cut minimum is a penalty for editing shots “too short,” a per-clip fee can be a penalty for cutting your shots too short or too long.

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Occasionally an archive will charge a kill fee if you have obtained screeners and you don’t ultimately license anything. This may especially be true if you paid the archive no up-front fees at all. Make sure you discuss pricing structure with each archive in advance so that you understand their policy—each archive is different!

Reporting Footage Use At picture lock, you must report to each archive exactly what footage you used, based on the exact in and out timecodes for each shot. Make sure you report the archive’s burned-in timecode numbers and not whatever temporary timecode you may have created for editing purposes. Also provide any other burned-in information that might be

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present. Sometimes archives burn identifiers into screeners; they should also have provided you with a written log of items on the screeners when you first received them. Calculate and include the duration for each shot, exactly (as minutes:seconds:frames). Provide this information in timecode order for each separate ID number, not the order in which they appear in your film. The archive will provide “handles” for the head and tail of each cue, but don’t include them on your report; be exact.

Special Effects Archives require you to pay for their footage as it actually appears on the screen. This means that you need to annotate and report any manipulation you make to footage, such as slowing the motion or freezing the frame on screen: if two seconds of a clip is slowed down to 10 seconds on screen, you owe the archive for 10 seconds of use. Because you might have some success negotiating with an archive about this if it’s extensive, make separate notes about the varying durations of shots that are used for special effects. 248

Per-Cut, Per-Clip, and Overall Minimums Along the same lines, keep track of any shots or clips that have a duration that is less than the archive’s per cut or per clip minimum, if they have one. Because of some variations in how clips are licensed, how you edit them may significantly affect your overall licensing costs. When you create footage reports for archives that have minimums, show both the actual number of screen seconds and the billable number of seconds, not only for your sense of what the footage will cost but also because it may be useful for negotiating purposes. Almost all archives have a 30-second minimum for your whole project, but often, if you use enough and aren’t a big budget film, you may get archives to at least lower or waive their per-cut minimum, and you may also get Hollywood studios to lower their per-clip minimum from one minute to 30 seconds, especially for documentary projects. If you are paying $7000 to $10,000 per minute, this can be a significant savings!

Sound Only Don’t forget that your editor may have used sound from archival footage without also using the corresponding picture. You’ll need to put the timecode cues for that clip on the log so that you can get a master of it. Most archives want to charge you the same per-second or per-clip

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rate for sound-only selects as they do for married picture and sound. Sometimes you can talk them into a discount on your sound-only clips, if you isolate them, tally them up, and happen to hit the archive manager on a good day.

Budgeting for Archival Footage A per-cut or per-clip licensing structure can make it difficult to budget your film because the screen time of your archival may be less than the total number of seconds you’ll need to license. As mentioned, you are especially penalized for creating quick montages, so editors cutting sequences from this material should try to let individual shots play longer, if possible. Producers interested in montages and fast cutting should focus on approaching archives that do not have these types of pricing structures.

Getting a Bulk Discount Discounts for footage may apply for usage as low as one minute, but generally if you’re negotiating with one source for something in the two- to three-minute range or more, or three to five clips or stills, you should bring up the possibility of a discount. Most archive managers expect to be asked by independent producers for a discount. They also like to feel that their company is one of the main contributors to a film (especially one they can believe in); some would rather give a discount to a 30-minute film that uses three minutes of their footage than to a 60-minute film that uses the same three minutes. Most archives won’t automatically give you a discount of any kind—so ask!

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Bundling Markets Discounts are also available based on the bundle of market(s) you are clearing, just as prices themselves are based on markets. The more markets you can purchase up front (when you first lock your film and apply for masters), the higher the total bill will be, but you’ll get more markets for less money this way. If money is no object, of course, it’s helpful to grab as many rights in as many markets for as long as possible. The ultimate, which big-budget Hollywood films always need to clear, is: all rights, in all media (now known or to be developed), worldwide (or “throughout the universe”) in perpetuity. This means they want to be able to show their film anywhere, to anyone, forever, whether in theaters, free television, cable, home DVDs, the Web, downloads to cell phones, or anywhere (and anyhow) else.

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As you can imagine, those rights are very expensive—from news entities, often $90 to $150 per second—but they can pay off. Even 10 years ago, few producers imagined the power of the broadband Internet as a distribution channel; few also imagined how many documentaries would go into theatrical release. Let’s say you don’t have that kind of money. And you may not know what rights you need. You’ve locked picture and are paying for masters and getting an initial license. Perhaps you have a commitment for educational distribution and you also want film festival rights. The archive quotes you a rate of $35 per second for combined film festival and educational/classroom rights. But they’ll also grant broadcast and DVD rights at the same time, as add-ons, for an additional $25 per second. For $60 you can lock in four markets for the license period. You hope you’ll be able to exploit broadcast and DVD later on, but you’re not sure. So you only pay the $35 and get the master materials and a license that limits you to festival and educational use. A year later, the film’s doing well, and a broadcaster and DVD distributor are interested, so now you want broadcast and DVD rights. You return to the archive, but this time the quote will likely be higher, say $40 per second or more, which means that the four markets will now cost you $75 per second rather than $60. What can you do? In many cases, options windows can help.

Option Windows If you ask, many rights holders will allow you to have an option window— a negotiated amount of time in which you can upgrade the rights you bought with additional ones, but priced as add-ons, as if you’d bought them as part of the initial bundle. Taking the previous example, if you can only afford educational and film festival rights when you lock picture, you may be able to pay for those rights only, but include a clause in your license agreement that locks in the rate to add additional specified markets within a limited period of time, generally three months to a year. Occasionally an archive will only give you one month, and sometimes rights holders will not allow you to have an option window at all. Archives won’t go out of their way to offer options; you need to ask about them. If the option is granted, you’ll have the upgrade rates written into the initial licensing contract. This allows you to budget for the upgrade and tells you whether or not you can afford to accept a distributor’s or broadcaster’s offer (requiring the upgrade), should it come later on. (It happens. A colleague’s film played successfully at festivals, but when the Sundance Channel wanted to show it on cable, he had to

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say no; the upgrade rights were much higher than what Sundance was offering.) There’s no fee or penalty for negotiating an option period; it’s just a question of whether an archive will do it. It’s possible that there is some risk involved, however, especially when it comes to music licensing (see Chapter 17).

Using Hollywood Clips As mentioned, most Hollywood studios charge based on a 60-second minimum per clip. Because the minimum applies to each individual clip, if you need four clips from one movie or television show, and as edited in your film they last 15, 30, 35, and 45 seconds each—a total of two minutes and five seconds of material—you’ll pay a license fee for four minutes. If you interrupt the original Hollywood material (say, with a cutaway), it’s a new clip. The encouraging news is that if you are a documentary filmmaker, you will find that studios are getting more and more flexible with this punishing pricing structure. There are exceptions, of course, but many studios are developing a sensitivity to filmmaker access issues and are trying to help.

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Maintain the Integrity and Order of the Shots Don’t ever change the order of the shots in a feature film clip (in other words, re-edit within one clip). None of the Hollywood studios allow this; it’s thought of as destroying the artistic integrity of the original film. It’s also an ethical breach if you are supposedly presenting a clip from a feature film and it doesn’t play the way the original feature did.

Maintain the Integrity of the Soundtrack Many studios also have rules about changing the soundtrack of the film, although you can usually strip the sound out completely. For example, if you are running your own voice-over narration where there would otherwise be dialogue, or in some other way it’s clear that the sound viewers are hearing is not the original sound from the clip, it’s likely not to be an ethical breach. You can also run your own musical score before, through, and past the clip, which should help viewers understand that it’s the score of your film and not the original film they’re hearing. But then don’t also mix in elements of the original film’s soundtrack, such as dialogue. A common manipulation that filmmakers do is to strip out an original

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musical underscore (that they can’t afford to clear) and replace it with other, cheaper music, implying that it’s the original music from the clip. Don’t do this. It’s considered unethical and probably violates your contract with the studio. (As noted in Chapter 14, if your use of the clip constitutes a fair use exception to copyright, you may be able to retain all of the original elements without needing to clear rights.)

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When seeking to license a clip or still from the U.S. entertainment industry, remember that there are a few levels of rights that need to be cleared (see Chapter 11) including rights to the clip or still itself and rights to underlying elements, such as music, personalities, or background art. In the case of Hollywood films, some of these underlying rights include clearing entertainment industry guilds representing directors (Directors Guild of America), writers (Writers Guild of America), and actors (the Screen Actors Guild and/or the American Federation of Television and Radio Artists). Often called guild clearances, these rights apply most often to feature films released in and after 1960 (with some exceptions) and to all television programming. If you’re licensing a clip from an entirely non-union film or television show, however, guild clearances won’t apply.

Directors Guild of America The DGA (www.dga.org) requires a payment for all films produced after May 1, 1960, and all television show excerpts, regardless of when the shows were made. These payments are residuals for the director. Rates are stepped (or tiered), based on the duration of the clip(s). In other words, it costs a certain amount to clear clips of up to 30 seconds long, a larger amount to clear clips from 31 seconds up to two minutes, and so on. In addition to that fee, if the director is still living, you must pay a surcharge of (currently) 12.5 percent of the rights fee to cover pension and welfare (P&W). The DGA does offer documentary rates, but the discount is only slight. Rates also differ depending on use, with the price primarily determined by whether the work you’re excerpting from was a theatrical film or a television show (rather than how, where, or for how long your film will be shown). For example: ■

A theatrical film clip to be licensed for your television program (theatrical in television) or for your theatrical film (theatrical in theatrical) will cost the same price. At the time of this writing, a clip

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or clips of up to 30 seconds in length, licensed for either use, will cost you $238 plus 12.5 percent P&W. Using a theatrical clip or clips that total between 30 and 120 seconds will cost you $683 plus P&W. A television clip to be included in either a theatrically released or broadcast project (television in theatrical and television in television) is always charged at a higher rate than a feature clip, and again, it has nothing to do with your venue. At present, a clip or clips from television totaling 30 seconds or less will cost $433 plus P&W; television clips with a total running time of between 30 and 120 seconds will cost $868 plus P&W.

Check the website for the most current rates when the time comes to pay these fees, not at the beginning of your project. They may have gone up even while you were producing and posting your film.

Writers Guild of America The WGA (www.wga.org) must be paid if the clip you want is from a feature film made after 1960 by most studios, or produced by United Artists or Universal after 1948, as well as from any television show, regardless of when it was made. The WGA does not have a separate rate for documentaries. Writers Guild payments are set up very similarly to DGA payments, in that they are structured in tiers based on the total number of seconds used (1–30 seconds, 31–120 seconds, etc.) and on whether the original work is a feature film or a television show. The main difference is that there is no P&W surcharge. ■

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The current rate for theatrical in theatrical or television, using up to 30 seconds, is $130; for a clip between 31 and 120 seconds, it rises to $523. The current rate for television in theatrical or television is $437 for up to 30 seconds, rising to $870 for 31 to 120 seconds.

Paying the DGA and WGA Payments to the DGA and WGA are one-time payments. You don’t need to go back to clear additional markets, to lengthen a term, or expand to a different geographical area. You pay the guilds directly after you’ve finished your production and know exactly what clips you’re using. Send a letter to the contact person and address on the guild website, explaining what your project is (the name, producing entity, and how it’s being released). Indicate what clip(s) you are using, the total length per original source, the price you are paying the guild for them, the name of the

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writer(s) or director(s) as applicable, whether the use(s) are theatrical in theatrical, theatrical in TV, TV in TV, or TV in theatrical. Add P&W based on 12.5 percent of the total for Directors Guild payments only (and note that you’ve done so in your cover letter), and mail the letter with your check made out to the proper guild. Their mailing addresses are available on the Internet, as are the names of the contact people to whose attention you should direct your correspondence. The guilds are generally glad to answer any phone or email questions you have; they want to get their members paid.

Multiple Writers and/or Directors You don’t pay any more to the guilds if there are multiple writers or directors for any particular work you’re excerpting, but you do need to name them all in the cover letter. The guild will distribute the fee among the beneficiaries.

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If you are using a clip from a feature film made before 1960, it’s unlikely you’ll have to clear actors, unless they are stunt performers— just clear the clip (and any underlying rights). Otherwise, you need to clear actor appearances through one or both of the largest actors’ unions, the Screen Actors Guild (SAG; www.sag.org) and the American Federation of Television and Radio Artists (AFTRA; www.aftra.org). The difficult thing about clearing actors is that the fees aren’t set; you must negotiate each case individually.

SAG and AFTRA SAG and AFTRA have much more stringent requirements for clearing actors than either the DGA or WGA has for writers and directors. You must locate each and every actor (except extras) who appears in the clip(s) you want to use, whether or not their faces can be seen. Anyone seen or heard in the clip who has an onscreen credit as a particular character (even “Robot Number Three” or “Hooker in Alley”) must be cleared. The credit is what differentiates them from extras and, of course, allows you to identify them. When you find actors, you must obtain signed appearance releases from them for your files, for which you will negotiate a fee (usually through a representative or, if the actor is deceased, through his or her estate). Some actors’ estates are actually represented by SAG or AFTRA, in which case the negotiations may go more smoothly. The fact that an actor is no longer living does not mean that the appearance does not need to be

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cleared. Furthermore, other trademark and right to publicity issues may apply (see Chapter 11). And be warned: Negotiating with a deceased actor’s estate can be extremely difficult. Estates and their lawyers are notorious for keeping you waiting and charging outrageous sums. Appearance Releases The appearance releases you create for clip use can be almost identical to regular appearance releases. Put a header at the top of the form, specifying the actor’s name, the name of the show or movie in which they appear, and the name of the character they play; for example: Clip Appearance Release for Harrison Ford, playing “Deckard” in the film Blade Runner. Notifying the Guild When negotiations with actors are complete, send a confirming letter to SAG and/or AFTRA. Tell them which actor(s) you’ve cleared, for what clip(s), from which film or television show, and how much you’ve paid to each. If there were extras or crowd scenes in the clips you used, note that fact and that you didn’t clear those. You do not have to send the guilds actual copies of the releases; these are for your files and use. Note that you do not make payments directly to SAG or AFTRA (see the following section). Note also that if you want to ensure that this will be a one-time negotiation, so that you won’t have to recontact the actors if your film enters new market, you’ll need to take the necessary steps. This means that when you get actors (or their representatives) to sign appearance releases, you want to be sure those releases are worded in a way that gives you the right to use the actor’s likeness, in the context of your project, in all media, worldwide, in perpetuity. If your wording isn’t broad enough, or if a certain actor refuses to grant you rights that wide, then you will have to return to those actors if your distribution expands beyond what the appearance release allows. Perhaps surprisingly, the better known the actors, the more likely they are to assign you all rights. The question is: What will they charge?

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Clearing Right to Privacy and/or Publicity One benefit of the otherwise cumbersome process of contacting actors and clearing rights to satisfy guild requirements is that, by having them sign a clip appearance release, you are also clearing rights to privacy and/or publicity for those individuals (see Chapter 11) and so do not have to pursue those separately.

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SAG or AFTRA? How do you know which acting guild to contact? It’s fairly straightforward: In the case of filmed or taped entertainment, the production company responsible for the film or TV show you’re using a clip from has entered into an agreement with one or the other of the guilds, and that’s the guild you contact. When you call about licensing the clip, ask which guild the project is signatory to; the company should have the answer. If not, a fairly reliable rule of thumb is: ■

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Filmed entertainment, including not only Hollywood theatrical features but also filmed television (hour-long dramas such as Law and Order and The Closer, and classic filmed comedy and drama shows like Bewitched) are normally produced under SAG contracts. Videotaped or live television, talk shows, sitcoms shot on videotape in front of an audience, and other studio-based shows are more likely to be AFTRA, as are newscasters and news anchorpeople.

Many actors are members of both guilds so that they can work on a variety of projects, but you’re only concerned with the guild covering the clip you’re using. If you license two clips of an actor, and in one he’s on a talk show and in the other he’s in a dramatic feature, you will have to clear that actor twice, once with each of the relevant guilds, and ideally you should have him sign two releases. (If he’s in two clips governed by the same guild, that’s likely to be reflected in your negotiations with him. Just tally all relevant fees and the source of all clips when you write to the appropriate guild.) Actors appearing in foreign films may also require guild clearances, because of course there are acting guilds outside the United States, just as there are independent, non-guild productions. The foreign studio or the production company you buy the clip from should be able to tell you about any underlying rights, including guild rights, that you may need to clear.

Finding Actors How do you find the proper person to contact for, say, Marlon Brando’s estate, or the agent or publicist of actor Brad Pitt? This is where SAG and AFTRA are great resources; it’s their job to see that actors are both employed and are paid residuals. Each of these guilds has an actors to locate hotline or email address you can access, requesting the contact information for the actors you need to find. They will usually respond to you very quickly, possibly even during your initial phone call (provided you don’t need to locate too many people). In addition, you can

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access their new online databases if you register (for free), and then you can research as many actors as you want 24/7. The guilds will give you a name and/or phone number, which might be for the actor’s agent, publicist, or lawyer—whatever contact information the actor gave the guild. This information is never to be used for fan mail or anything else not related to employing or paying actors. When you get the agent or publicist on the phone, explain your needs. Hopefully, she will be able to handle the clearance, but if not, she may know who else has been retained by the actor. (If you’re referred to a large agency, like Creative Artists Agency (CAA) or William Morris, there will be an “agent locator” inside the company who can direct your call to the proper representative of the actor you’re trying to find.) Be prepared for any and every response imaginable when clearing actors. Some agents will say, “No problem,” but turn the matter over to lawyers, and suddenly you’re faced with a crippling quote and a threepage contract asking you to promise things you can’t possibly deliver, when your simple appearance release would suffice. Some representatives never get back to you—keep at them! Some can be quite cooperative, but even if everyone has the best of intentions, a client may be on location halfway around the world and you might have a significant wait before you get a signature. And occasionally (a publicist, especially) will say, “I’m sure so-and-so would be pleased to have that clip used in your project. Fax me the release; I’ll have her sign it when we meet for lunch and fax it back to you before the day is out.” Some actors (including some that are well known) will call you back personally. You just never know.

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Hitting a Dead End Sometimes the information SAG or AFTRA gives you is incomplete or out of date, or they say they have no contact information; perhaps the actor is no longer in the union. If the contact information you’ve been given isn’t working, try calling a few of the bigger Hollywood agencies to ask if they have more recent information. Or look to see what one of the actor’s latest movies or TV shows was, and try calling the company that produced it. If an agency says it no longer represents an actor, ask if they can tell you who does. If all else fails, put some money in escrow and, when you send your letter to SAG or AFTRA, indicate that this particular actor was untraceable. Paying Fees to Actors Actors can ask for as large a fee as they want in exchange for signing your release, which can wreak havoc with your budget. The only thing

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that works in your favor is if you’ve picked clips in which a limited number of actors appear. A good place to start in making an offer to an actor is the equivalent of the current SAG day rate (as of this writing around $800). In many cases, you may need to add 10 percent to the figure to cover the agent’s fee. But be prepared to replace the clip if the quote you’re given is unreasonable. Often, if you tell an actor’s agent that you’ll switch out the clip, they will suddenly be more willing to negotiate: whatever fee you can afford, provided it’s at least a single day’s SAG rate, is better than no fee at all.

Exceptions to Clearing with SAG or AFTRA As noted, there are a few cases in which you do not have to clear actors. ■

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If the feature film you’re licensing material from was produced by a studio other than Universal or United Artists before February 1, 1960. But note that this cutoff date does not apply to stunt performers; you must notify SAG or AFTRA (as appropriate) about any stunt performer(s) who appear in clips you’re using from films released on or after August 1, 1948. There is no cutoff date for television shows. If the production you’re licensing material from was not signatory to either SAG or AFTRA and the actors in the clips are either not members of either union or, if members, they had a waiver to do the film outside of their SAG or AFTRA contracts. If the clip you are using is in the public domain or your use of the clip and the actors in it legitimately satisfies a fair use exception to copyright.

Fee Exception for A-List Actors In a last, interesting twist, if the actor(s) in the clips you want to use are considered to be A-list—an industry term—they must sign an appearance release, but they are allowed by SAG and AFTRA to waive the fee if they want to. Who’s an A-list actor? It’s always a matter of opinion. However, if you’re negotiating with “a star,” it doesn’t hurt to explain why your project will benefit humankind and ask if she will sign the release gratis. If you are doing a documentary and interviewing the star (in addition to using clips in which she appears), you might be able to get her to waive payment and sign your clip appearance release along with your standard appearance release for the interview. SAG rules prohibit actors who are not on the A-list from waiving their fees, and frankly, as with musicians, you should try to pay them at

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least the day rate, out of professional respect for those engaged in difficult and often uncertain work. Actors can request as little as they want to, however, and if a cause is close to their hearts, they might seek a fairly nominal fee. But that should be their decision, not yours.

Clearing Television Commercials Many archives sell copies of television commercials (particularly older ones), but you should additionally get written permission from the company whose product is being advertised, if they are still in existence. Often this permission will be granted for free; you get someone in the company’s public relations or press department to sign a materials release or to write a short, official letter (on letterhead) granting permission. If you feel you are being turned down by a company because you want to use their advertising in a way that’s critical or analytical and they don’t approve, you may have a case for fair use.

Clearing Sports Footage Obtaining and clearing sports footage poses some unique challenges, and some film researchers specialize in this. There are underlying rights to almost all sports footage, including necessary clearances of leagues (such as the National Basketball Association, the National Football League, and Major League Baseball), the teams themselves (which usually covers the appearance of the players), and, in the case of the Olympics, either national or international committees. You may also need to clear branding, such as a trademarked NFL logo, for example. Olympic clearances, like other sports footage clearances, focus on activities inside the athletic venue and the event specifically; if you are using footage of a news event surrounding the Olympics (such as dignitaries arriving in the host city) or political turmoil (such as the kidnappings at the athletes’ dormitory in Munich in 1972), you need only clear from the news source. A newsworthy event that happened in the Olympic stadium, however, would need to be cleared with the relevant Olympic committee(s). Since sports footage involves licensing with both the creators (or owners) of the footage or stills you want and with leagues, teams, and/ or the Olympic Committee, you can count on paying at least double normal archival licensing rates for any such footage you use. You must also put very specific credits (dictated by your agreements with these entities) at the end of your film.

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Many commercial archives that handle sports footage can also do the league or team clearances for you because they have unique and ongoing relationships with these entities. Thought Equity Motion, for example, controls National Collegiate Athletic Association footage. As might be expected, ESPN is an important source for sports footage and now owns the “Big Fights” library on the history of boxing, as well as the X Games, NASCAR, college football, women’s tennis, and the America’s Cup race.

Vintage Sports Older sports footage—from the 1950s and earlier—in many cases doesn’t have the encumbrances that newer footage does. If you just need generic “old baseball,” “old football,” or “old boxing” footage, and you don’t much care who the players are or what specific game you’re showing, newsreels—and especially the Universal newsreels at the National Archives—can be good source of (black-and-white) footage.

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As discussed in Chapter 11, in the United States, fine art is subject to the same copyright terms and issues as any other kind of material, and in addition it may be subject to what are known as moral rights. What follows are a few strategies for locating the rights holder and/or the artist whose permission you need before using his or her work in your film.

Finding Artists The copyrighted work of many artists is represented by one or more international agencies that collects fees on the artists’ behalf. In the United States, these agencies are the Artists Rights Society (ARS) and Visual Artists and Galleries Association (VAGA). Sometimes ARS or VAGA represents everything the artist has done, sometimes they only represent some pieces, and for others you must go to the gallery that represents the artist’s work or to the artist or the artist’s estate. Each piece of art can provide its own unique clearance issues. Both ARS and VAGA are related to “sister organizations” in other countries. If you get worldwide clearance through ARS, you are then cleared for the same work if it is represented by DACS in the United Kingdom, ADAGP in France (ARS itself also operates in France), VGBILD KUNST in Germany, and similar organizations elsewhere. Likewise, if you are in another country and you buy world rights, you’re covered, regardless of what other organizations represent that work elsewhere.

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VAGA has similar arrangements with other international organizations. In addition to representing artists, VAGA represents some other assets, such as the right of publicity for Ernest Hemingway’s image.

What If a Work is Not Represented by ARS or VAGA? If neither of these two organizations represents a work, they can usually give you good leads on who does, or you can ask the artist’s agent or gallery. Often one gallery will have exclusive representation rights to a contemporary artist’s work even if multiple galleries sell it. In other cases, it may be the artist or the artist’s estate.

Obtaining Suitable Reproductions of Artwork You can sometimes obtain digital or physical copies of art directly from artists, in which case this is part of your negotiated deal with them. There are also organizations that sell or rent images of artwork, including Art Resource, Getty Images, and Corbis, which represents the collections of Hulton-Deutsch, the Andy Warhol Foundation, the Hermitage Museum, and many others. (The fee for these reproductions can be steep, even for works that are in the public domain.) In some cases, you may have to create (or hire someone to create) a reproduction—print, slide, transparency, or digital file—of a work of art. At times, this may include shooting an environmentally-placed piece, such as a statue in an outdoor plaza. In that case, you still must secure permission from the rights holder, if any, for the artwork, and you may need to get a permit or, if the work is not on public property, a signed location release. Be especially careful if you’re filming and incidentally shoot a copyrighted piece of art, whether it’s outdoors or indoors. The moral rights of the artist may trump any “incidental capture” fair use claim, especially outside the United States. Remember also that architecture is art: Some one hundred famous buildings and structures (such as the Chrysler Building in New York) are trademarked or otherwise rights controlled, which applies under certain conditions. And for some public domain structures, even more complex restrictions apply: The Eiffel Tower’s design is not trademarked, for example, but the design of its lighting is. You may film it during the day without encumbrances, but to film it at night, you must obtain permission.

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Museums You may find yourself needing to acquire an image of a piece of art from the museum that currently owns a painting or other work. As discussed

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elsewhere, if you can get a suitable quality reproduction of the artwork from another source, it often makes sense for you to do so; many museums charge high fees and make extensive demands regarding the use of materials in their possession, whether or not they hold the copyright. You are not obligated to lease the transparency from a museum simply because the physical object is located there, as copyright rarely transfers with the physical object unless a special arrangement is made.

Documenting Non-Licensed Material If you are using materials that your research shows is in the public domain, or material for which you, your lawyers, and even your insurance company support a claim of fair use, you will need to create your own documentation.

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U.S. government agencies, such as the National Archives, will not give you a license agreement or even paperwork certifying that the material you are obtaining from them is in the public domain. Instead, when you’ve determined that this is the case, you should write your own memo to your files, stating what the material is, where you got it, and why you believe it is in the public domain. Include documentation (such as a printout from a website); you may even want to include a written legal opinion.

Fair Use If you are claiming fair use, certainly obtain a written legal opinion in support of this claim and place a copy in your files along with a memo to accompany whatever documentation you have about the original material as well as your use of it. Write a cover memo for your files if necessary to accompany this documentation. It should state what material you are using, what the source is, and why you believe that your use of it is protected under fair use. You are gathering this material both for your own records and in support of your application for E & O insurance; keep it handy should objections arise.

Breaching Archival Agreements What happens if you license footage for festival use and then start distributing your film in some other venue? What if you continue to make

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your film available for sale via the web a year after some of your underlying rights have expired? The obvious response is, don’t. You are breaking a contract and subjecting yourself to legal action that could cost you a significant amount of time and money. Furthermore, rights holders may be able to enjoin your film, thus stopping it from being made publicly available. And due to an arbitration clause often found in licensing agreements, in the event of a dispute a neutral third party may be given control over important decisions about your film, such as whether or not it can be released or distributed. It’s possible that you could find yourself in breach for reasons beyond your control, due to actions taken by others without your knowledge or intent. Because this can happen, when negotiating for the use of rights, try to set limits on what the rights holder can do if you are in breach, especially unintentional breach. Often you can (and should, if possible) negotiate a non-injunction clause into your license agreements. Consult a lawyer for details, and have your E & O insurance in place.

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CHAPTER 17

Licensing Music Licensing music (“clearing music rights”) can be one of the most frustrating, difficult, and expensive tasks a filmmaker faces when dealing with third-party materials. Because of this, growing numbers of independent filmmakers, especially those working in documentary, are forgoing the use of prerecorded music entirely, relying in whole or in part on hired composers even when their films are about the past. This is a disturbing trend, one that as filmmakers, educators, and audience members, we need to resist. Music is part of our lives, culture, and history. Which music best tells the story a filmmaker wants to tell should be a creative decision, not necessarily a logistical or financial one. With that said, what does it take to include someone else’s music in your movie? What follows is an overview of the entire process, intended to help whether you’re doing limited licensing on your own or working with a professional. Do consider hiring a professional. A skilled professional can significantly streamline the process and save you money in the long run. “If you don’t have someone clearing these rights who has enough experience to really understand the rights that they’re clearing, what’s feasible and what isn’t, and how to negotiate, you’re going to end up with costs that are just sky high,” explains Patricia Shannahan, a former music industry executive who now clears rights through her company, My Forté Music Industry Services, in Los Angeles. Simply getting a response from music executives can be challenging, she notes. “You may get a voice mail at these large companies that gives you instructions on how to fax your request to a general number and then you never hear back from anyone.”

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Synchronization and Master Use If you want to use music in your film, usually you’ll need to explore synchronization (or “publishing”) rights and master use rights. The first refers to the composition (music and lyrics); the second to any preexisting recording you may be using. ■

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If you include a copyrighted song in your film but either perform it yourself or have someone perform it for you, you’ll need to secure synchronization (or “synch”) rights to compensate the people who wrote and published the song. (If you don’t perform the music yourself, you will also need a release, worded like an appearance release, from the performer you hired, giving you permission to use the performance.) If you want to use a specific preexisting recording of a song, you will need to secure synch rights and master use rights to compensate not only the song’s author and publisher but also the musicians whose recorded performance you want to use and the record label that released it. If you’re using underscore music from a Hollywood film or television show, you’ll usually need to clear synch rights and/or master rights separately from the clip.

Featured, Background, or Credit It’s not unusual for the rights holder to want to know more about your project, including what it’s about; how much of the song will be used (meaning the number of separate musical clips, or cues, and how many seconds each lasts); and a description of the scene in which the song will appear. They will also want to know the type of use, whether featured, background, or credits. ■

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Featured. You film Hootie and the Blowfish performing on stage, or you film a group of teenagers performing a Hootie and the Blowfish song. The song is featured in the film. (As an added complication, note that if your film’s subject is an individual or a group of people in the audience of a Hootie and the Blowfish concert, and you never show the band, the issue of whether the use is featured depends on what country you are producing in; more on this later.) Background. You have a scene showing your subject dying, and you think it would be great to put the Blue Öyster Cult song “Don’t Fear the Reaper” on the soundtrack. The music is not

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being performed onscreen; instead it has been added to the soundtrack. Credits. Music is played on the soundtrack over the opening or closing titles of your film; this type of use will usually cost you more than background use in the body of the film.

As mentioned, definitions of featured and background music vary. In Canada and the United Kingdom, music is featured if the people in the scene would hear it (thus, if we see someone put a CD into their stereo, the music they and we hear is considered to be featured). In the United States, the criterion for featured music is whether its live source appears in the scene’s visuals. Thus, in this example, the CD music would not be considered featured because we don’t visually see the musician(s) performing; it would be considered background. Use the definition that applies to your film’s country of origin.

Intended Markets When clearing music rights, the markets you intend to reach are essentially identical to those described in detail in Chapter 11: educational, broadcast and/or cablecast (free or pay), theatrical, home video, museum use, film festivals, and corporate presentation. As with clearing visuals, you will also probably request a time period and geographical area for each particular right.

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Options What if you don’t yet know which markets you’ll need and only have enough money on hand to clear a minimal license? Sometimes, as with visuals, you can get an option window to expand your rights in the near future. Option windows for music may run 12–24 months. If you want this, ask—rights holders will seldom offer. But note that sometimes simply asking about an option can raise the rights holders’ sense that your project is more commercial than educational, and their rates may rise accordingly. This is worth highlighting briefly, because it’s a frustration filmmakers increasingly face. Broadcasters and distributors interested in a filmmaker’s work often want the filmmaker to have cleared licenses that grant “all rights in all media,” or to at least have an option on those rights. But cash-strapped independent filmmakers may only need to clear festival or perhaps educational rights during their first negotiation with rights holders. Asking about these expanded rights at this early stage may risk jeopardizing the affordability of even these basic markets. Furthermore, it’s often the case that the broadcasters or distributors asking for such broad

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rights (although rarely if ever offering to pay for them) don’t actually need them; it’s just easier to know that everything is cleared. It’s a tough scenario, and filmmakers are often caught in the middle.

Clearing Synchronization Rights Most often, you clear synchronization rights through a song’s publisher or publishers (there can be more than one). They represent the song’s composer(s) and lyricist(s), if applicable. If you are using a particular arrangement, the arranger is also treated like a composer in this regard and often is credited along with other composers and their publishing companies. (As mentioned elsewhere, this also means that although you might be using a song in the public domain, such as a 17th century madrigal, the synchronization rights to any copyrighted arrangement of that madrigal need to be cleared, just as if it were a recent song.)

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The first step in identifying the publisher may be to look on the liner notes of the CD (or album). Often the publisher is listed for each song, and it’s indicated whether they are members of a performing rights organization, such as the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), or SESAC. Composers and publishers join these organizations because they help promote and sell their music, stand with them when litigation arises, and keep a watchful eye on relevant trends, pending legislation, and other issues. Each of these groups has an online database (www.ascap.com/ace, www.bmi.com, and www.sesac.com/repertory/repertory_main.asp) that allows you to search for contact information about a song’s authors and publishers. If you don’t know which group is affiliated with the song you want and the liner notes don’t tell you, it’s easy enough to search each database directly by song title (although you need to know the exact title of the song) or by composer. Some songs, because of the artists involved, will be on more than one site. For example, look on the back of Beyoncé’s Dangerously in Love (2003). The CD is copyrighted by Sony Music Entertainment and manufactured by Columbia Records. The first track, “Crazy in Love,” is credited as: “Beyoncé Publishing/Hitco South all rights admin. by Music of Windswept (ASCAP)/EMI Blackwood Music Inc. obo [on behalf of] itself and Dam Rich Music (BMI)/EMI April Music Inc. obo itself and Carter Boys Publishing (ASCAP) Unichappell Music Inc. (BMI).”

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In this case, this information is confirmed by searching the online databases. The ASCAP database includes 26 results for “Crazy in Love,” including two for songs coauthored by Beyoncé (one is the a capella version). Four “publishers/administrators” are listed along with a note: “Contact ASCAP Clearance representative at (212) 621-6160 for other publisher information.” The BMI database lists three additional publishers and a note that there are “Additional Non-BMI Publishers.” This is an example of a fairly complex publishing credit.

Why Multiple Publishers for One Song? Sometimes publishers share copyright because the composer(s) and lyricist(s), even when they’re performing together as a band, are affiliated with or have created different publishing companies. “Crazy in Love” has four writers, for example, including Beyoncé, and each negotiates through his or her own publishing company.

Where to Start? The online databases offer contact information, including phone numbers. In the case of “Crazy in Love,” both the liner notes and the websites indicate that Hitco (Beyoncé’s publisher) is administered through another publisher, Music of Windswept. It seems from the liner notes that Windswept Holdings can license the percentage of the synch rights that belong to Beyoncé, so from there you follow the chain: Call Windswept and they’ll tell you their catalog is now owned by Bug Music; you clear with Bug, and you have one fourth of your synch rights work done for this song. Both Dam Rich Music and Carter Boys are represented by EMI companies (Blackwood Music and April Music, respectively). This means you would probably clear rights through EMI, one of the largest (and most expensive) music companies in the world. The relative simplicity of being able to license two more publishers by contacting EMI, however, may be offset by the fact that the company, like many in this business, was recently purchased and is being reorganized. For the last synch clearance, you need to contact Unichappell Music, which is a division of Warner Bros. Also very expensive. Theoretically, the synch rights for three or four publishers of a single song should not cost significantly more than if there was a single publisher. However, it sometimes doesn’t work that way. If you have to approach multiple publishers, probably you’re going to end up paying more for the song.

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The Good News The good news is that sometimes you don’t need to contact and negotiate with all of the publishers involved. When a copyright is shared, specific percentages are assigned to each copyright holder. If you’re lucky, one primary publisher (often the one with the largest percentage ownership) may have the right to collect license fees on behalf of the other publishers as well. However, this multi-publisher payout varies on a case-by-case basis, so you may or may not have to track down each publisher.

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The ASCAP, SESAC, and BMI online databases only cover publishing rights for the United States. If you anticipate wider distribution, you must ask the U.S. publisher(s) that you contact if they know who owns distribution rights in other countries. Also, the database information may not be up to date because publishers buy and sell catalogs of titles all the time. When you’ve identified the publisher of a song in which you’re interested, you need to contact them directly to see if they (still) own the rights. And be aware that with catalogs changing hands and consolidating, there may be times when publishers claim not to own songs when, in fact, they do. “I find that many times, I have to tell them they own the material,” Patricia Shannahan says. “There are all kinds of complications. The people at each company don’t know what they have because of sheer volume. They have to find ways to combine databases; if they can’t look it up on the computer, they have no idea whether they have it or not, and this gets worse as time goes on and the volume increases. You end up being a victim of the technological problems they’re having, and the lack of staff with any historical knowledge of the songs, recordings, or artists.” Further compounding this issue is the complexity of a global music industry still working with nationally based copyright laws. “All these major companies now have worldwide organizations, and their needs are different in each country, in each territory,” says Shannahan. “They’re not only trying to find ways to combine with other companies here, but [with] their whole worldwide groups, and everybody has their database system based upon their own peculiar needs in each country. So it’s a very complex matter.” Needless to say, identifying, contacting, and negotiating with the correct publisher(s) can take months. Leave yourself plenty of time.

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Another Wrinkle Suppose you look up a song, find a single publisher listed (at least for the United States), get hold of that publisher right away, and the publisher still owns the rights to the song. You need to ask if they are the only publisher to hold that copyright; it’s possible that there are others and they’re not listed or not yet listed. Conversely, you need to do your own due diligence. People may adamantly (and even abusively) claim ownership they don’t actually have, such as the publisher who insisted to a colleague that he owned half of world rights to a classic soul tune when, in fact, he owned half of U.S. rights.

Clearing Synch Rights for Multiple Songs If you can organize your music “shopping list” and needs ahead of time, you may notice that you’ve got several songs owned by the same publisher (often one of the larger companies like EMI or Warner Bros.). It’s more efficient, obviously, if you group this information and make a single phone call. You should probably ask for a discount for clearing multiple songs, although it’s not likely you’ll get one. Generally, the price is the price.

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Clearing Master Use Rights What if you want to include not only the song but also the song as recorded at a specific time by a specific artist (or group, symphony, etc.)? Many filmmakers want to include prerecorded music on their soundtracks; for example, iconic recordings that suggest a specific time period or emotion. For this, you will need not only publishing rights but also master use (also called simply master) rights for the actual sound recording. In other words, with the Beyoncé song previously discussed, you’ve only been seeking to clear synchronization rights; you (or someone else on your behalf) would have to perform the song. If you want to hear Beyoncé and fellow performers, including Jay-Z, singing “Crazy in Love” on the soundtrack of your film, you need to clear the master.

Identifying the Rights Holder To get a master use license, you’ll need to contact the owner of the specific recording of the song you want to use (otherwise known as the master). Usually this means contacting the record company (or its

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parent company) that released the specific version to request rights and negotiate a fee. Be sure to have the exact title of the song ready, along with the name(s) of the composer(s) and performer(s)—very important in the case of master rights—as well as information about the recording, such as the name of the label (which is sometimes a subsidiary of a larger label) and the recording number (for example, “Warner/Elektra 250683”). Also be prepared with the length of each cue and the total length of all the cues from that song. The label will come up with a quote based on this information, taking into consideration the markets and term for which you want the license.

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With classical music, such as a Beethoven symphony, it’s possible that both the composition and (Beethoven’s own) arrangement are old enough to be in the public domain. In that case, there would be no synchronization rights to worry about, but in most cases, you will still need to get a master use license for the recorded performance you want to use. This would also include paying union fees for orchestra musicians.

Paying Union Fees The master use license almost always will require that you pay a fee to the American Federation of Musicians (AFM) of the United States and Canada (www.afm.org), the world’s largest musicians’ union. This fee provides additional payment for the musicians—generally other than the featured performer or performers—who are involved in the recording, from back-up vocalists to a full-piece orchestra, plus a fee to the union’s pension fund. The fee is based on the project budget and is per player, so while the cost per individual is relatively low, if there are many people involved (such as an entire orchestra), the fee can become prohibitively steep. Some record labels have begun demanding that filmmakers provide proof that AFM fees have been paid before issuing the master use license. In any case, avoiding this fee, as some filmmakers boast of doing, is both risky and unethical. It may put you in violation of your master use license, for which there are legal penalties that may cost you money and hamper your film’s distribution. Furthermore, the fees provide relatively minimal compensation for individual musicians who face ongoing professional challenges, including sometimes unsteady employment. Pay the fees because it’s the right thing to do.

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Clearing Synch and Master Use Rights for Embedded Music In some cases, filmmakers want to use third-party footage that includes music, whether performed onscreen (such as a clip of Bob Dylan performing in the vérité classic Don’t Look Back) or on the soundtrack (such as composer Virgil Thomson’s score for the documentary The Plow that Broke the Plains, recorded by the New York Philharmonic Orchestra). This underlying or “embedded” music often needs to be cleared separately from the visuals; very occasionally, this music may need to be cleared even if the film is in the public domain.

Hollywood Studio Films Before the 1960s When dealing with feature films made by the larger American motion picture studios, especially in the decades prior to the 1960s, the licensing of the underlying musical score can be relatively straightforward. This is because in that era, the major studios, such as Metro Goldwyn Mayer (MGM) and Paramount, employed composers and musicians on staff. The film scores they wrote and performed were thus “works for hire,” owned outright by the studios. There are exceptions sometimes, as with “big name” composers who have retained publishing rights to their music, but in general this means that when you buy a clip of an older film from a studio, the clip clearance person can refer you to their music division for both master use and synch rights to the score. Note that Warner Bros. includes master use rights with the clip itself, but you still must pursue synch rights.

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Studio Films Since the 1960s Beginning in the 1960s, the major studios no longer kept composers and musicians on payroll. Then, as now, producers and directors usually hired independent, outside composers who maintained copyright to their music and controlled any usage beyond inclusion in the film score. These composers are represented by publishing companies, with whom a filmmaker must negotiate if he or she wants to use the material, just as if it was any other song.

Clearing Cues from Soundtracks An example of a successful, contemporary film composer is Mark Isham. According to his official online biography, Isham has composed more than 75 film scores, including those for In the Valley of Elah, A River Runs Through It, and Blade. Each cue (or music track) from each

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movie he’s scored is listed separately as a composition on ASCAP’s ACE database. Combined with Isham’s concert works, this means that there are over one thousand musical compositions owned by him and controlled by various publishers, some related to the studios for which he composed specific film scores, and some not. A filmmaker wanting to use one or more pieces of music from an Isham film score would need to identify the particular cues they’re interested in clearing and treat each individually. The names of the cues often relate to the screen action (“Danny comes home”), or you may be able to discern them by checking the tracks on the CD soundtrack recording, if there is one.

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You need to make sure that what appears to be the underscore in the clip you’re using is not taken from yet another original source. Feature films may include prerecorded music from an earlier era (as when a character in a 1990s story plays a Rolling Stones album from the 1970s, for example; or when films like American Graffiti and The Big Chill feature a large list of preexisting hits on their soundtracks). Cartoon music often “quotes” other popular music, and each song that’s quoted needs to be identified and separately cleared. Figuring out if there is a quote and who owns the song quoted is your responsibility.

Clearing Music for American Public Television If you are making a film specifically for American public television (PBS), a different situation applies. Because of a compulsory license arrangement in the copyright law, producers don’t clear synch rights for a PBS broadcast. A compulsory license (in this case) legally compels a music entity to accept a certain predetermined fee for use. In the United States and elsewhere, compulsory licenses are written into copyright law. What this means is that if you only want to clear music for PBS broadcast, you’re all set. Following certain guidelines (pertaining, for example, to the amount of a song used per cue), all you need to do is fill out and submit a PBS Music Cue Sheet, with information researched as you would if you were going to clear these rights yourself. List performers, performing rights societies, publishers, and the songs used; provide information about how and in what quantity songs were used and exactly where they appear in your show. PBS’s legal department then clears synchronization rights under the compulsory license. In addition, because another section of the U.S. copyright law is presently interpreted

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by PBS as an exemption that allows for master use rights, the legal department will take care of those as well. (In the United Kingdom, the BBC has a somewhat similar compulsory license for music use, as well as cue sheets for producers to report use.) As liberating as this may seem for PBS producers, be aware that there are limitations; note that anything not covered by the compulsory license must be separately negotiated and paid for by you. ■

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The compulsory license does not include recordings of spoken word that might include a literary copyright (such as a recording of a Martin Luther King, Jr. speech that is copyrighted) and it doesn’t include dramatic works, such as recordings of plays, radio dramas, and the like—because again, there are multiple underlying copyrights, and you are responsible for them. The compulsory license and master use exemption does not cover music acquired through a production music library (see the end of this chapter). If you can find the same recording(s) on CDs available to the public, however, then you are in luck. Many PBS producers’ contracts require that you obtain from all rights holders (including those covered by the compulsory license agreement) permission for educational off-air recording. This allows schools to record your show when PBS broadcasts it, use it in classroom teaching, and save it for a specific period of time. The PBS legal department has negotiated for thousands of songs to be pre-cleared for this use, but only for a specific period of time—which sometimes is shorter than the term covered by the PBS producers’ contract. Before signing your PBS producers’ contract, see if these terms are aligned. If not, try first to negotiate your agreement so that you don’t have to deliver rights for longer than the term covered by PBS. If you can’t, and you need to buy or extend these rights yourself, you may find that a licensor will roll them in with another market you are buying, such as educational distribution. And finally, the most important thing to remember about this: The compulsory license and exemptions only relate to the PBS broadcast. Presentation in other venues, including festivals and distribution to educational, theatrical, home, or other markets, needs to be cleared by you, under terms you mutually negotiate with the publishers and record companies.

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One option that filmmakers sometimes exercise is to include commercially recorded music for the film as broadcast on PBS only and then

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remove or replace that music for all other distribution channels. Even Hollywood films have occasionally changed their soundtracks.

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Music clearances in Europe are philosophically similar to the process in the United States, but overarching groups that represent a number of member composers, performing rights societies, and other parties help to consolidate some traditional rights clearances for producers. In the United Kingdom, an alliance between two agencies, the Performing Rights Society (PRS) and the Mechanical Copyright Protection Society (MCPS), can streamline the process for filmmakers seeking to obtain synch licenses for songs, as well as the mechanical and performing rights needed for Internet distribution. (Master rights are still held by the individual record labels.) “I think the most significant difference . . . is that the rights are held exclusively by a collecting society here,” says international IP attorney Hubert Best, who is based in London (see Chapter 15). “If a composer is going to be a member of the Performing Rights Society at all, he assigns his [copyright] to them,” Best says, and the society collects royalties on the composer’s behalf. Recently, however, the system has become more complex, as publishers such as EMI and Universal have begun to pull their catalogs out of the PRS-MCPS Alliance and other umbrella societies, due in part to complications over Internet licensing. As a result, filmmakers who need songs from these catalogs need to contact them, or their newly established collecting organizations, directly.

Complications of Internet Licensing These changes to British and European Union licensing procedures are a response to challenges posed by Internet technology and its ability to send and receive music across national borders. To transmit over the Internet, a filmmaker needs to obtain both a mechanical license (to copy the music onto the server) and a performance license (for the actual Internet transmission). But at present, Best explains, “You can only get a pan-European license from Buma/Stemra in the Netherlands, and its validity is disputed by other collecting societies.” Those societies, in response, have chosen to “tear up” reciprocal arrangements, Best says, “and avoid the whole cross-border issue by only licensing Internet services which are received within our own territory.” What this means, Best explains, is that filmmakers wanting Internet distribution across Europe either have to risk obtaining one license

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through Buma/Stemra (with the possibility that other collecting societies may consider it invalid), or “get a license in every single territory where the Internet version of their program is received—individually.”

Negotiating “Cost Per Unit” Versus a Flat Fee If you are creating a film that you intend to sell physical copies of (otherwise described as units), such as on DVDs or VHS tapes, you may have a choice to try to negotiate a flat fee or to pay a number of cents per unit distributed. ■

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A flat fee works like a normal visual license; it covers a certain collection of rights for a certain length of time in a certain geographical area, and you pay it when you lock your film. Cost per unit covers a certain collection of rights and establishes a price per unit sold, based on a minimum guarantee, often within a time period. To take an average example, you might agree to an upfront payment of 15 cents for each of 10,000 units sold for up to 10 years in North America.

Normally, commercial per-unit deals involve a minimum guarantee of at least 10,000 units, which means an upfront payment of the cost per unit times 10,000. (To give a frame of reference, an average Hollywood film can sell as many as half a million units or more; a megahit sells as many as five million units.) If you’re producing a documentary or independent feature and expect to have limited distribution, you may be able to talk some publishers into a smaller minimum (5000 units is usually a good and realistic goal). There are advantages and disadvantages to both cents per-unit deals and flat-fee deals. This book can’t tell you which is better for your project. To explain some of the differences: ■

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Flat-fee deals may cost more up front, but they are for unlimited units over a specified period of time (and in specific territories). You may end up not exploiting all the rights you’ve paid for, or selling all the units you were hoping to sell, which would mean you might not recoup your upfront licensing costs. If your film is topical and goes out of date relatively quickly, your ability to recoup costs may be even lower. On the positive side, flat-fee deals can reduce the burden of paperwork. As the filmmaker, you pay once (at least for the time period you negotiated), and you have a signed contract in your files. You’re free to sell however many units you want or can in that time period. You don’t need to keep

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and report sales figures to each music rights holder one or more times per year. Cents-per-unit deals usually involve more complex arrangements. You must report every quarter (or biannually or annually, depending on what you can negotiate) how many units you’ve sold, and of course pay more to “up” your rights if and when you’ve sold out the number of units you pre-bought with your minimum. The reporting can be a hassle, especially if your staff grows and shrinks as projects begin and end and/or you have little or no support staff. If you do go this route, you should ask for as infrequent a reporting requirement as you can, using as a negotiating device the smallest number of units you are probably going to sell in short time periods. In other words, if you tell a publisher, “I’m probably only going to sell 50 units per quarter,” they’re likely to say, “Okay, let’s set up annual reporting.” Nobody wants to do extra paperwork; frequent reporting is really designed for productions that are selling thousands of units each quarter.

You can probably see by now that the advantage of a per-unit deal (especially at 5000 units or less) is that you can “get in the game” for less upfront money. For example, if you negotiate a 5000 unit minimum at 15 cents per unit, your upfront payment is only $750. That’s a lot less than the typical $1500 to $10,000 flat fee you might expect to pay. Many filmmakers don’t have a lot of ready cash to pay flat, upfront fees to license music-heavy projects (remember, for prerecorded music you have two separate negotiations and payments for each song, as well as possible union fees). By negotiating a cents-per-unit deal, a filmmaker can spend less money up front and still get a license agreement that allows him or her to use the music. Filmmakers should consider this route, despite the reporting requirements, if a project is not expected to have much in the way of per unit sales. This might be the case if a film has specialized content likely to appeal to a niche audience, for example, or with a self-distributed film that might have a shorter shelf life or lower visibility. If you don’t anticipate distributing “units” but instead plan on a broadcast, cablecast, single corporate presentation, or any other “nonphysical” distribution, you’ll have to live with a flat fee.

Deal Making and Distributors Whether a filmmaker negotiates a flat fee or cents-per-unit deal with the rights holders, any distributor interested in the film will need to

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know that the appropriate music rights have been cleared and paid for. In general, unless the distribution deal is negotiated otherwise, filmmakers are responsible for both negotiating and paying for all the third-party rights needed. Even when the filmmaker uses money from a distribution deal to purchase these rights, which often happens, it is still a payment from the filmmaker—in other words, the filmmaker’s responsibility.

Additional Music Rights You may hear about another type of music license, for performance rights. Filmmakers rarely, if ever, get involved in these; they are fees paid—usually to the performing rights societies, annually—to clear the performance of a list of songs or music in a particular venue. For example, a jazz club or theater or a radio station will pay a fee annually to clear all the music that has been played by or in that venue over the course of a year, based on play lists or logs that are kept by the venue. You may also hear about mechanicals or mechanical rights, which we briefly mentioned earlier in relationship to the Internet. This relates to making a soundtrack CD or DVD—in other words, a derivative product from your film. If you plan on releasing a soundtrack album, you will additionally pursue mechanical rights for this specific use. These are the easiest of the music rights to negotiate. In the United States, mechanicals to most songs are handled by the Harry Fox Agency in New York (www.harryfox.com). In the United Kingdom, they are handled by the alliance between MCPS and PRS (www.mcps-prs-alliance.co.uk). If these organizations don’t control the mechanicals to the music you need, they almost certainly will know who does. In addition, there’s a published statutory rate for mechanicals, so negotiations and related entanglements are not necessary.

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Most Favored Nation One of the most difficult structural and strategic aspects of music clearance work is that, increasingly, publishers and record labels demand what is known as most favored nation or MFN status. This means that while you may be able to negotiate separate deals with each rights holder, those with MFN status can’t be paid less for like use than the rights holder who is getting the most. For example, suppose you get publishers of three songs to agree to a “most favored nation” arrangement of 15 cents per unit, with a minimum guarantee of 5000 units, for 10 years, to cover public television,

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educational, and Internet streaming rights. But a fourth publisher, who controls a song you really want to use, won’t go along with that deal. Instead, for the same rights, her song will cost 18 cents per unit with a 10,000 unit minimum for 10 years. Under MFN, you have the choice of either dropping that song or paying all the publishers that higher amount. As stated, MFN should be done on a “like use” basis—the total rate for a 20-second cue from one publisher should not be the same as the rate for a two-minute cue from another publisher (or record company). Some rights holders will accept this fairer interpretation of MFN, and your total fee for the cue is adjusted based on its length. But many publishers and record companies won’t: in their view, a cue is a cue, a cut is a cut. Try to get them to prorate when you can; they’re not going to offer, so it’s up to you to ask.

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MFN is increasingly the bane of music rights clearance. “It’s become worse and more binding,” says Patricia Shannahan. “It’s a nightmare because what you’re dealing with is a house of cards; you try to add one, and they just all fall down.” MFN arrangements can wreak havoc with your budget, in part because you can’t know what you’ll need to pay for music rights until you’re finished negotiating with all rights holders. The worst music deal you negotiate—the one that costs you the most and gives you the least freedom—is retroactively applied to every other MFN deal you’ve negotiated. In addition, MFN deals have begun to cross platforms. In the past, MFN deals went across publishers or across labels: That is, publishers used MFN to get paid the highest synch fee paid to any one publisher; record companies used MFN to get paid the highest master fee paid to any one record company. Increasingly, however, a record company or publisher will ask for an MFN deal based on the most money you are paying either another record company or any publisher (often referred to as all songs and masters). This “crossing the line” between publishers and record companies can be a worst case scenario because now all the music entities you are negotiating with are subject to the same (highest) payment for the same rights and negotiated time period. “All songs and masters—that’s what I’m finding more and more,” Shannahan says. “You’re dealing with people who don’t understand what they’re doing to the [filmmaker’s] budget; they simply have a mandate. The game has completely changed now by virtue of the fact that you have only a few companies

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owning everything, for the most part. You’re dealing with assets, as far as they’re concerned.” You need to avoid the MFN trap if you possibly can by dropping whatever piece of music is throwing off the rest. That’s why it’s very, very important that you remain flexible with your music choices. Have backup choices. The more flexible you can be, the more you can use MFN to your advantage. If everyone insists on being paid the same, keep “the same” as low as possible. With backups, you have the power to refuse a deal that doesn’t work for you.

Alternatives to Prerecorded Music Filmmakers reluctant to research and pay licensing and master use fees can still include music in their work through a variety of means. You can hire a composer and musicians and negotiate a flat fee to “buy out” the rights. You can work with an undiscovered group, or baby band, one whose music you like but whose work is still low profile. They might be anxious to have the exposure and therefore be willing to cut you a great deal. You can also purchase music from a music library. 281

Music Libraries Also called “sound libraries” or “production music libraries,” music libraries are somewhat akin to stock footage and stock photo houses in that they offer a catalog of choices which they own outright, thereby simplifying the process considerably. “Libraries are getting a lot more deals now and are handling a lot more contemporary music than they did before, making deals with producers and helping them with their music supervision and getting a lot of exposure for their catalogs; this seems to be the new trend,” Patricia Shannahan says. While libraries may hold material that they have licensed from others, such as recordings of classical music, you only need to license it from them. Some libraries advertise their music as royalty free and/or copyright free. They often offer soundalikes, which evoke specific copyrighted songs but are different enough to skirt the copyright issues. (Composers and baby bands can also create soundalikes for you, but make sure they and you know where the line is between a new composition and an infringement, and pass the result by your attorney.) Some libraries also offer sound effects, and often you can negotiate one flat fee for the use of anything in a library’s catalog and cover all of your film’s needs, thus saving you uncertainty, hassle, and cost. They will happily inundate you with recordings to choose from. (Remember that if you purchase clips from a sound library, you must negotiate

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with them in good faith, and the PBS exemptions do not apply.) For an example of one of the largest and most often used production music companies, go to the website of APM Music, www.apmmusic.com, whose credits include the HBO series Carnival.

Plan Early, Be Flexible If your film depends on clearance of specific pieces of music, or even if music is going to play a significant role, the earlier you begin to narrow your choices, with backups in mind, the better off you’ll be, especially if you find that you simply can’t do it yourself and need to hire a professional. “If [filmmakers] come to me in time—which is frequently not the case—I know a lot of companies that have catalogs over many, many decades of music that we can work with to give them a good replacement at a good cost,” Shannahan says. “But a lot of times, time has become a major issue. So that makes it more difficult.”

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CHAPTER 18

Legal Considerations: A Roundtable Discussion With Anthony Falzone, Sam Green, Debra Kozee, Jan Krawitz, Dale Nelson, Rick Prelinger, and Kristine Samuelson

What are some of the most challenging legal issues facing filmmakers today? In October 2007, we convened a panel of experts to discuss this issue with us and with students from the University of California, Berkeley, and Stanford University. The panelists were: ■

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Anthony Falzone, Lecturer in Law at the Stanford Center for Internet and Society (CIS) and Executive Director of CIS’s Fair Use Project, http://cyberlaw.stanford.edu/; Sam Green (www.samgreen.to), filmmaker (The Weather Underground) and educator at the University of San Francisco and the San Francisco Art Institute; Debra Kozee, founder and president of C&S International Insurance Brokers, Inc. (www.csins.com); Jan Krawitz (www.stanford.edu/~krawitz), filmmaker (Little People, Drive-In Blues), professor, and director of Stanford University’s MFA Program in Documentary Film and Video;

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Dale Ellen Nelson, vice president and intellectual property counsel for Warner Bros. Entertainment, Inc.; Rick Prelinger (www.prelinger.com), founder of the Prelinger Archives, cofounder of the Prelinger Library, and filmmaker (Panorama Ephemera, Our Secret Century); Kristine Samuelson (www.stanford.edu/~samuelso/), filmmaker (Arthur and Lillie), professor, and director of Stanford University’s Film and Media Studies Program.

As was the case with the ethics roundtable (Chapter 10), each panelist began with an opening statement, followed by discussion. This material has been edited with the panelists’ consent, and portions of the discussion appear elsewhere in the book. Questions, also edited, were posed by Kenn, Sheila, and members of the audience. Kristine Samuelson launched the proceedings with some questions on behalf of her film students.

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KRISTINE SAMUELSON: I’ve had so many students who want to use archival footage. The time line is a serious problem for students; they move on a pretty fast turnaround and don’t have a lot of time to wait for archival footage to come in. The costs are daunting, and they seem to have gotten much higher. And most of all, I think it’s very difficult to parse the idea of how many territories you’re going to be buying for, because you’re not quite sure where your film is going to go; and then how long you should arrange for your deal to last; and most of all, what is the Internet territory? Now that we are really looking at a landscape where people will be offering their movies for download on the Internet, how does that factor in to some of the legal clearances they need and the contract negotiations that will take place with the people who own the archival footage? So those are some of the critical issues, I think, facing students and in fact, indeed, independent filmmakers today. DALE NELSON: Warner Bros. is really on both sides of the issue here; we’re in both businesses. We’re in the business of licensing clips and stills and the protection of the assets that the studio has created and owns and that we’ve acquired. We have a very large library (probably the biggest or one of the biggest of the majors), a lot of valuable films; people like to come and purchase clips from us, and we do make not an insignificant revenue from this. But first and foremost, Warner Bros. studio is a filmmaker. So that’s our bread and butter; that’s what we do. We make films. And as filmmakers, as content makers, we’re subject to the many complex clearance issues, licensing issues, that you all face.

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And we’re very much champions of the First Amendment, we’re in the business of free speech. I’ve been at the studio now for a number of years, and I’ve seen big changes with the introduction of the Internet. We have massive increased expression now, by anybody and everybody. This is an era where there’ve been many attacks on traditional notions of copyright. We’re in the era of file sharing, private copying, websites, user-generated content, mashups. It’s all kinds of new forms of expression that, as a content owner and a content maker, we have to evaluate. From an enforcement standpoint, protection of our rights creates a nightmare in this new era, but it also causes the content owner (like Warner Bros.) to step back and reevaluate what harm is really being done when other people are using our material. ANTHONY FALZONE: The Fair Use Project does two things. We litigate copyright cases for filmmakers and other content creators who are, in our view, accused wrongfully of copyright infringement. We’ve had great success doing that. But what I want to focus more on is the work we do with documentary filmmakers before the fact. We work with them on copyright issues, fair use issues in particular, and we issue the opinion letters—which are your ticket in the door to E & O insurance that covers fair use material. I’d like to talk briefly about what I would call alternatives to traditional licensing. Why do I suggest alternatives to traditional licensing? It’s not just because traditional licensing is often expensive. The problem with licensing is, licenses always have other restrictions. At the very least, they will almost certainly have a time restriction, which means the license you buy is going to expire some day. And once it expires, you no longer have the rights to the material that you licensed, and you may even see something in that license that says you agree not to use it at all unless you go get another license. And that could be a very big deal. Licenses may have media restrictions. Maybe it lets you [use the work for a project to be shown] in theaters and DVD but not on the Internet, and maybe not on any other technology—who knows what?—that we haven’t thought of yet. Every time you sign a license, you’re signing rights away. You’re agreeing to restrictions on the way you use material. And for that reason, it behooves you to at least consider the possibility of whether you can use the material you want to use legally without entering into a license. So there’s two things I want to talk about outside of traditional licensing. One, very briefly, is the Creative Commons. The Creative Commons license lets authors specify in advance the terms under

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which you get to use content for free. It has various forms that you can see in detail on the site. But the critical point is, you know before the fact that you can use it and you know exactly what you can do with it because the Creative Commons license spells it out in super easy-tounderstand terms. So that’s one solution, but I consider it an imperfect one. I think it will increase in importance, going forward. I think it’s a very good prospective solution, but we’re here talking about archival materials. Creative Commons is only five years old, and although it has literally tens of millions of pieces of content under its auspices, that doesn’t do much for things that are 30, 40, 50 years old that you might need to use. Those are stuck under the old regime of copyright law. So the second alternative to traditional licensing is fair use. The way I describe fair use is, if copyright is a set of restrictions on your right to use copyrighted material, fair use is the big exception that protects your right to use copyrighted material in certain ways and certain circumstances. And it’s a critically important part of copyright law. It balances the inherent tension in copyright law, which of course restricts speech, while the First Amendment is supposed to protect speech. And the fair use doctrine is the lubricant that lets those two things work together. So in the context of documentary film, what does it let you do? It protects your right to say something about copyrighted work and show the audience what exactly you’re talking about. One of the very first films we worked on [as fair use advisors] is a film called Bling, showed on VH1 in cut-down form a few months ago. It’s about the glorification of diamonds in the hip-hop industry and the consequences of that in Sierra Leone, where a lot of the diamonds are mined. And one of the vignettes in the film traces the rise of the iconography of gold and diamond jewelry in hip-hop. And to do that, they gave what I call a brief little tour of jewelry in hip-hop [using excerpts of music videos]. You could certainly tell that story just with the narration; you didn’t have to use the videos. I don’t think they’re even saying anything critical about the videos themselves. They’re just simply presenting it as the artifacts that tell the story. And I think that’s something you get to do under the Bill Graham case [see Chapter 14]. SAM GREEN: Making archival films with very low budgets is hard, obviously. In making The Weather Underground, I knew I had to license a lot of material, but there was [also] a range of stuff that I thought I might be able to use under fair use. And so I started to ask around, to figure out what this fair use thing was and how it works, and I was amazed that very few people really had a clear sense of it. This was 2001 and 2002; since that time, I’m extremely happy to see that there

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is a lot more attention being paid to it. I also feel really strongly that there are political implications to this. As the archival landscape gets more and more commercialized and corporatized and legalized, I think it’s extremely problematic.

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1969 police mug shot of Bernadine Dohrn, in The Weather Underground. Photo courtesy Chicago Historical Society.

I really struggled with this stuff with The Weather Underground because as a filmmaker, and especially a filmmaker with not a lot of money, it feels like the deck is stacked against you, especially when you’re trying to use archival footage. Figuring out how I could use things and communicate effectively left me feeling frustrated on numerous occasions. At one point I was rereading the book 1984 while I was trying to negotiate all these rights. There’s one point in the book where one of the characters is explaining how the Party is able to maintain power. I don’t remember the quote verbatim, but it’s something to the effect (I’m sure people know this quote), “Whoever controls the present controls the past. And whoever controls the past controls the future.” It’s a simple idea, but at that moment, when I was so mad at ABC for

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how they were making it hard for me to tell this story, it really rang true with me. I don’t feel like there’s some conspiracy where a group of rich people is figuring out how to limit access to archival images, but I do think that the way the marketplace is going and works has that effect, to some extent. The fact that filmmakers can be supported in being more assertive in claiming fair use is extremely important, and has serious implications, implications that are significant in the world today.

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RICK PRELINGER: I’ve collected film since the 1980s, and I’ve sold stock footage on and off for quite some time. My archive is now represented by Getty Images, but we’re still very actively involved in bringing material in and helping make sense out of it. What I’m going to talk about briefly are some new ideas that have come into this field that complicate things a little bit, but in some ways maybe also point towards a future where things are a little more open. As I said, I sold stock footage for many years, and we were always incredibly restrictive about what we did. As Larry Lessig from here at the Law School would say, we observed a model of scarcity rather than a model of plenty. We never let anybody see anything without superimposed time code blotting out the image. Since most of what we had was public domain material, we were very, very controlling about our physical materials. And then I moved to the Bay Area and hooked up with the Internet Archive [www.archive.org], and agreed to put almost 2000 of our films online for free, under a Creative Commons license with no restrictions on reuse. At the same time, we were selling the same material that we were giving away. And we ended up with a two-tiered system in which, if you were willing to download material under a Creative Commons license, you had the right to reuse this public domain material without any additional restrictions. But if you wanted a written agreement with your name on the top, if you wanted physical materials, if you needed any sort of enhanced research services, you had to pay. So we made a firm line between what you get for free and what you have to pay for. And in almost seven years, we’ve had about 20 million extremely obscure films downloaded, and (we think) about 20,000 derivative works have been made using our material, mostly independent, student, community work that wouldn’t really have been made otherwise. This was a life-changing experience for us because we realized that the gift economy can work; it’s possible to give things away and also get paid at the same time. In fact, our sales more than doubled (not completely because of giving things away, but there’s a strong correlation). We also feel that we’ve increased the visibility of our

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collection and increased the fan culture that’s grown up around it, which is critically important if you’re (number one) trying to put cultural material into the foreground instead of let it sit at the margins and (number two) if you’re trying to sell something, fans are really, really helpful. But more than that, we’ve entered into kind of a semicollaborative relationship with hundreds of thousands of people. I’m an archival producer myself, and on a gut level I admire what people do who work with archival material. It’s critically important, I think, to inject the past into the present and future, so as to problematize the present. A lot of people have very rosy ideas about history. History is not usually as pleasant as we tend to think. History is complicated, and history complicates the present. History makes us look at the present in a very different light. And so there’s a critical sense of historical accountability involved in access to archival material. Some people in the Open Content movement say, “Don’t ask permission, ask forgiveness.” This is big in the computer field; it doesn’t play very well, for obvious reasons, for a lot of people in the legal business. Permission-based media is where every little piece of content that you have in your work, every creative element, every piece of footage, every piece of music has a license, or there’s an opinion letter and a fair use rationale. Forgiveness-based media is where you put in what you want and then you deal with the consequences. Forgiveness-based media has far outpaced the older media because most people don’t ask permission, and most media has a very low profile. So at the moment, it’s estimated that there are 120 million videos online, among the different online video providers. There’s a fairly well informed estimate that there are 77 million videos just on YouTube. Of those 77 million, we know that the majority of it is stuff that’s been ripped from TV and movies and music videos and all that. Of the stuff that’s original creative activity, a tremendous amount of it uses copyrighted music, copyrighted images, trademarked content, copyrighted buildings, dance steps that belong to somebody else. In other words, it has no legal standing, but in terms of the total amount of production, that kind of production is beginning to outpace legal production. Now, it’s low level and it’s not mainstream, but the point is that there are now mainstream outlets for it. YouTube doesn’t ask questions; it takes it down if there’s a problem. And I think we’re going to see a great deal more of that. So we have the coexistence of these different models, the permissionbased and the forgiveness-based model, and neither of them is going to go away. I think we have a new generation of especially younger media authors arising, who have no sense that intellectual property laws exist, or that content is property and that they should really even deal with that.

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JAN KRAWITZ: Although I’m first and foremost a filmmaker who seeks to use archival footage, I’m also a copyright owner of archival footage, by virtue of the films that I’ve made—footage from my own films that may have value to other producers. So today I’ve chosen to speak to the issue of archival footage from the perspective of a documentary filmmaker who has film material to license, as presumably we all do; it’s not a commodity until someone wants it. What business and legal acumen do we need to properly protect our archival assets and/or share them freely through the Internet and other means? Most of you are familiar with Creative Commons. You can use Creative Commons to change your copyright terms from “all rights reserved” to “some rights reserved” to “no rights reserved.” A filmmaker may choose to offer her films to potential users under the Creative Commons license because the site does offer a flexible system within which the copyright owner can grant rights on a case-by-case basis and implement a sliding scale, depending on the origin and the parameters of the request. But what about a scenario in which footage is appropriated from an independent documentary film, like ours, and used without permission or attribution, in something other than a fair use context? What recourse do we, as documentary filmmakers, have when broadcasters and other deep-pocket entities use our work without a licensing agreement or an a priori negotiated payment? In two situations, footage from my films was used by broadcasters in direct violation of the copyright law. It was only fortuitous happenstance that alerted me to the infringement, and it leaves me wondering how often this has occurred to me and other independent documentary filmmakers without our knowledge. (My experience with broadcasters has not been uniformly negative. I have licensed footage to organizations that behaved responsibly and professionally. I insisted that the request be made in writing, having learned from experience that there needs to be a paper trail documenting all of our interactions.) Documentary filmmakers may feel thwarted by the Copyright Extension Act and the onerous fees associated with licensing archival material. But when the shoe is on the other foot, and outside parties want to license our images, we stand to benefit. We are currently producing films within a Wild West arena of media dissemination. The proliferation of distribution channels, including the Internet and cell phones, coupled with the ease of duplication afforded by digital technology, will make it increasingly difficult to retain control of our footage. We need to remain responsible about using the images of others and licensing them when appropriate. In turn, we should expect the same consideration as the proprietors of archival footage.

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If filmmakers believe they have a good fair use claim, should they still approach the copyright holder? What if they physically need access to the material? Let’s say that Warner Bros. has in its vault material that’s not widely available. DALE NELSON: If we’re the only ones in possession of the material, then right there that puts you at a disadvantage in terms of having to make the deal. So just as a practical matter, I think you’d have to have a pretty solid fair use position before you come to us, or anybody. If you request a clip or you say, “I want to use this clip, I think it’s a fair use,” and in response you get a price schedule saying this is how much you’re going to have to pay, maybe the answer is to push a little further and write a letter to the legal department instead, to take a closer look. RICK PRELINGER: Just to amplify, I think a lot of makers don’t realize that when you have a rights request that happens at the studio or at the broadcaster level, just evaluating your request is incredibly complicated. There are many, many cooks involved in a feature film, and a bundle of rights that may have to be cleared. People call me all the time and say, “Do I have to get permission to use . . . ?” They think that I know. And I explain that it’s going to cost the studio a lot of money just to tell you whether it’s licensable or not, and you need to understand that and couch your request accordingly. It isn’t a simple matter.

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DEBRA KOZEE: I want to add one thing on the insurance end. It’s a question on every application: “Have you tried to negotiate for rights and been unable to obtain them?” And if you have to say no, then it’s an extra complication that you have to explain. ANTHONY FALZONE: The law is very clear now that if you do try and fail, that will not be held against you, in terms of fair use. SAM GREEN: So trying and failing, you put yourself on their radar. And if you don’t, the odds of the right person seeing your film, if it’s not a film that’s in multiplexes, is usually pretty slim. KRISTINE SAMUELSON: What happens when a film that you’ve made [and] distributed, you now want to offer on the Internet for download? How you would feel about someone coming to license a clip, in terms of the way you would define territories? And would it get very much more expensive? DALE NELSON: If somebody came to us a long time ago and licensed a clip for television only, and suddenly you have an opportunity to sell that to iTunes ([which] happens to have a lot of downloadable television shows now) then you’ve got to go through a legal analysis, which

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is: “Is Internet ‘television’?” And lawyers could spend a lot of time discussing that. But assuming you come to the conclusion that your license doesn’t cover Internet, then you can come back and just negotiate a new clip license to cover the new medium, or upgrade it to “all media.” KRISTINE SAMUELSON: Is Warner Bros. looking at it as this vast new territory, that’s going to cost more because it’s global?

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DALE NELSON: I’d have to go back to our clip licensing people and see what they’ve been thinking. I know that we distinguish between streaming as one kind of medium, and electronic sell-through, downloading, as more of a home video kind of a thing. Nowadays people tend to take licenses that are all media. At least that’s what we do; if we produce a television show or something, we’ll most of the time go out and get an all-media license. Television creates a difficult situation because budgets are lower than a theatrical production. Sometimes we can’t afford the licensing fee, we can maybe only afford a six-year television license. But we’re working with new things now, where we might get a six-year television license with two weeks of promotional streaming. If a new television series is coming out, the networks want to have websites where they stream parts of that. SAM GREEN: Rick’s point here is a good one too, that there’s a huge universe of people who are not paying any attention to this and not asking permission and just doing it. So that’s significant, and only going to be more significant. ANTHONY FALZONE: And I think a big part of the reason people are ignoring the system is because it’s so crazy. If you create a system that’s workable and practical and reasonable, people will use it. I think people in general want to do things the right way. They would rather license it. They would rather do it on the up and up. But when it just gets so darn ridiculously complicated, they’re going to say “The heck with it” and they’re going to do it their own way. JAN KRAWITZ: I have a question for Dale: Do you figure out who your adversary is before you decide to go ahead with litigation [in cases of copyright infringement]? DALE NELSON: We’ll look at that. It’s all in the risk assessment. We don’t like to unnecessarily get into litigation; we certainly don’t want to get into prolonged litigation with somebody who’s got a big war chest. We like to try and settle things when we can.

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If we’re evaluating something for fair use, if it’s a student film, that will be taken into account. If it’s another major that’s infringing our property, that gives us an opportunity where somebody can make a phone call to somebody else at the other studio and hopefully resolve it. ANTHONY FALZONE: On that topic, I have found in my experience that so-called big media companies, whether they’re studios or other conglomerates (Viacom is a good example), I’ve actually found them to be rather reasonable in terms of how they see fair use. There are exceptions, but in general I think they truly are on both sides of the issue, and they really do—no pun intended—want to do what’s fair. From a filmmaker’s point of view, I believe that the people you really have to worry about most are the estates. If you’re dealing with somebody’s estate, you should be extra careful; they tend to be the most aggressive and unreasonable on these issues. What about claiming fair use when licensing music? DALE NELSON: It might be a little more difficult to justify the [fair] use of a piece of music unless your film happens to be about music and critiques the music or makes some comment on the music. If you’re just using the music as background or as part of your score, and it doesn’t have any particular point to make, probably you’re going to be hard pressed to justify it as a fair use.

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ANTHONY FALZONE: That’s the problem most people run into with music. Music gets a little funny. There’s not a lot of case law about how fair use works with music. Fair use definitely applies to music, but you should really think of it in terms of these same principles that show up in the [Documentary Filmmakers’ Statement of ] Best Practices. I’ve worked with filmmakers who are making a film about a given subject and just wanted to use songs that happen to be about that subject. And that’s not enough; you can’t just be making a film about love and use a love song. What about the problems faced by filmmakers who are either shooting reality (vérité filmmaking) or trying to create an appearance of reality in fictional films—but we live in a world surrounded by protected sights and sounds, from advertising and posters to the music you hear on the street? DALE NELSON: When I’m working on trying to clear a production for Warner Bros., we run into this problem all the time. If we want to dress a set to reflect reality, we want to use costumes, props, posters on the wall—or even shooting street scenes, where we’re shooting reality. We’ve got a chase scene, running down the street; we’ve got to consider

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all the signage, the storefronts, murals on the walls. It’s crazy. From the perspective of wearing the clearance hat at a production studio, I would love to see a Supreme Court case that says that when you’re trying to make a film to reflect reality, reproducing the setting should be some sort of copyright exception because the clearance just drives you nuts. If you have a fair use claim that covers your use of copyrighted material within the United States but not for international distribution, can making your film available on the web for downloading (by anyone in the world) really mess you up? DEBRA KOZEE: Most E & O policies are worldwide, and the underwriters think that since we’re the most litigious society, that if somebody is going to sue you, they’ll sue you here, rather than wait until you have a showing in Cambodia or something. I don’t think it’s that much of a worry, really, in practical terms.

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DALE NELSON: The legal principles that we’re talking about today are all under U.S. law. We distribute our films worldwide, and so we always take the laws of foreign jurisdictions into account. Different jurisdictions will have different rules. For example, in Australia, they call it “fair dealing” and they don’t have a flexible four-prong test like we do; they have very specific statutory exceptions. You have to just look at it or get advice from a lawyer to see if you fall under the particular exemption. I think, just based on my experience over a long time with distribution, I don’t recall ever running across a foreign jurisdiction where we’ve been getting a lot of claims and the law is significantly different, except in the area of moral rights. In Europe they have a strong tradition of moral rights, where an author of a copyrightable work has a continuing right to object to certain uses of the author’s works, that the author might find to violate his or her right of integrity or paternity. And that requires you to look at: Are you making any disparaging use of the work? Or are you altering it so that it’s not really the work of the author anymore, that the author might take objection to? In certain jurisdictions there are rules about attributing the work to the author, and things like that. If you really did it in every technical way, the way you’re supposed to do it, you’d end up consulting with lawyers in every jurisdiction where you’re going to be distributing work, which is impractical. So you’re right about the Internet and worldwide distribution. Territories are breaking down, and it’s just not as simple as it used to be.

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CHAPTER 19

Afterword Too often, filmmakers impose a kind of self-censorship when thinking about producing projects that might involve complex or costly rights issues. Perhaps they back away from tackling subjects that would necessitate a focus on corporate giants or stars in the entertainment and sports industries; perhaps they shy away using cultural or historical materials—images, music, and sound—because to do so puts both schedule and budget at risk. While understandable, this is a trend to be rejected, not only by filmmakers but also by the public they serve, including the educators, community leaders, families, and individuals whose lives have been and should continue to be enriched by a vibrant and diverse tradition of filmmaking, including archival filmmaking. Think back to those projects that first inspired you to study film, or become a filmmaker, or use films in your classroom. For many Americans, Eyes on the Prize was an introduction to a civil rights movement hard-fought by their parents, grandparents, and now, great-grandparents. Others remember watching The Civil War as young children, sitting up late with their parents and wondering at the power of its storytelling. Controversy around Oliver Stone’s JFK, a drama that drew on both real and created archival materials to explore the assassination of U.S. President John F. Kennedy, reinvigorated discussion of this important event. In 2004, the U.S. Department of Justice reopened an investigation into the murder of teenager Emmett Till, whose mutilated body was discovered in 1955; the case had been highlighted by two documentary filmmakers, working independently: Keith Beauchamp (The Untold Story of Emmett Louis Till) and Stanley Nelson (The Murder of Emmett Till). Consider the impact, globally, of the Academy Award-winning An Inconvenient Truth, director Davis Guggenheim’s presentation of former Vice President Al Gore’s call to action on climate change.

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Films matter. They are not, as some might argue, poor substitutes for books. They are different from books, and powerful and effective in their own right. And they are different from each other. Two films may purport to be about the Warsaw Ghetto, and both might unfold over the course of an hour and include archival materials and talking heads and perhaps narration—but one could be based on skilled journalism and exceptional storytelling, while the other is merely noise and light. Two films may purport to fairly criticize the war in Iraq, but one selectively uses news footage to distort and disguise some facts (as reasonably agreed upon by diverse and knowledgeable parties), while the other does not. There is nothing wrong with criticism or a strong point of view, even in documentary. There is everything wrong with lying as a means of convincing your audience.

Issues of Access

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As discussed throughout this book, the extension of copyright terms and skyrocketing licensing costs are two ways in which access to important archival materials is becoming blocked, not only in the United States but throughout the world. Yet there are other issues to consider, including media venues purchasing exclusive access to materials that had previously been more widely available.

Exclusivity Exclusivity is not new. Professionals leading archeological or scientific expeditions, for example, may raise funds in part by granting exclusive media access, at least for a limited time. This can help make such expeditions possible and has fueled some exceptional film and television programming. But a controversy in Washington in 2006 raised an important and as yet unresolved question: Who has the right to make such deals? In March 2006, the Smithsonian Institution—a vast public agency in the United States—announced that it had entered into a 30-year contract with the Showtime Networks, Inc., described on its website as “a whollyowned subsidiary of CBS Corporation.” Together, they would “create new television channels and related businesses,” beginning with a digital on-demand channel, Smithsonian on Demand, according to an investigation conducted by the U.S. Government Accountability Office (GAO). Critics questioned whether the Smithsonian had the right to even make such a deal. It had been founded by the U.S. Congress in 1846 “as a trust instrumentality of the United States,” and 70 percent of its funding comes from tax dollars. Its vast holdings of footage, photographs,

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artwork, artifacts and more—more than 363 million items—are critically important to scholars, artists, and others. Yet in exchange for financing from Showtime, Smithsonian granted to the cable network “semi-exclusive distribution rights to produce and distribute certain audiovisual programs using Smithsonian content,” the GAO reported. The two organizations might allow use by other entities, but permission would be weighed against the needs and interests of Showtime. Despite public outcry, the contract remains in place as of this writing, and its impact is still being measured.

Internet Access Internet neutrality has been and continues to be a hot issue in the United States and worldwide, as the public seeks to prevent private interests from gaining the power to control access to, and the speed of, web content. Large corporate entities are seeking the power to give priority to their own online advertisers, search engines, entertainment content, and more, limiting your freedom to browse when and where you want without hindrance. So far, public activism on this issue has played a key role in preventing it from happening. 297

Extending Copyright, Shrinking Public Domain Many of those immersed in copyright reform issues hope that the public will also get involved when the U.S. Congress is pressured to again extend copyright terms, which is likely at some point before 2019, when current protections again face expiration. Powerful rights holders—individuals and organizations often far removed from the individual creators—have a vested interest in preserving their private commercial interests. But what about the public’s interests? Think of a vast expanse of open forest, public lands. Private interests might want to develop the land and exploit its resources for profit, and sometimes there is a public benefit to growth. At the same time, however, the public and its leaders have long recognized the value of environmental conservation, including placing key tracts of land into a common trust for ongoing, protected, public use. As others have argued, the public domain is in no less need of conservation. It is the repository of our shared creative, cultural, scientific, and historical past and even much of our present. The loss of this public good can only partially be offset by the growing efforts of those who voluntarily put their work under Creative Commons-style licenses. On the book’s website, you’ll find links to groups who watch trends and take action on intellectual property issues, including Stanford

AFTERWORD

University’s Center for Internet and Society, the Electronic Frontier Foundation, and American University’s Center for Social Media.

The Future of Ideas

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Some people see intellectual property as no different than physical property, a good to be privately held and passed on for generations. Others feel that by its very nature, creative work needs to be shared and built upon. However you feel about this issue, chances are that if you’ve tried to use third-party materials in your filmmaking—tried to incorporate the music that filled your characters’ lives, past or present; tried to illustrate the past or include real life in the commercial culture that is now inescapable—then you understand why many hope to find some reasonable middle ground in this debate. Copyright both supports and deters creativity. It supports creativity because it offers an incentive to create by giving you exclusive control over your work and the exclusive right to profit from it for a certain (and generous) period of time. You can give others permission to use your creation or not, but it’s your choice. You can punish those who use it without your permission, if you choose. But copyright deters creativity, including your own, because creative acts stand firmly on the shoulders of those who came before. Explore the works of William Shakespeare, Walt Disney, Stephen Sondheim, and pretty much anyone else, and you’ll be able to trace an ancestry to earlier creators and times. Culture does not spontaneously emerge; it builds and borrows, grows and changes, reconsiders and explores. Creative artists can and do have the right to protect their work and to earn money from it. But unchecked copyright laws inhibit what Lawrence Lessig calls “the future of ideas”—the ability of tomorrow’s creators to study, analyze, reprocess, and especially to take inspiration from our shared cultural heritage.

Moving Forward We hope this book has offered a bit of guidance as you work your way through the maze of archival use. We also hope it’s made you aware that you’re not alone in your struggle, and that in fact, you are a critical part of a centuries-old tradition of reexamining and reusing cultural materials to create something new, unique, and important. We also hope to influence the world around you. Perhaps, by helping to raise awareness of the obstacles you face, this book will gain you greater support from those who set budgets and timetables—those

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who need to understand that some projects require both time and money to be done right. Perhaps it will provide a wider array of tools with which educators, librarians, and others can evaluate media intended to be educational, and in doing so shore up the market for higher-quality work. Perhaps we can gain the attention of policymakers who too often don’t understand the work filmmakers do, the unique obstacles they face, or the ways in which their work adds to and enhances civic and civil dialogue. Today, more than ever, information is shared through pictures and sounds as well as words. Today, more than ever, it’s important that creators of media have access to the pictures, sounds, and words they need. But mostly, we hope we’ve convinced you to go for it. Nothing is impossible, and nobody knows where archival use will take you, and other filmmakers, next.

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AFTERWORD

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PART 4

Additional Material

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Sources and Notes In preparation for this book, we met with and/or spoke by telephone or email to: Patricia Aufderheide, Hubert Best, Ronald Blumer, Michael Dolan, Kevin Green, Peter Jaszi, Alexander Kandaurov, Elizabeth Klinck, Rena Kosersky, Lawrence Lessig, Muffie Meyer, Polly Pettit, Jay Rosenblatt, Bonnie Rowan, Lisa Savage, Patricia Shannahan, David Thaxton, and Geoffrey C. Ward. We also held panel discussions at Stanford University and the University of California at Berkeley in October 2007, specifically for the purposes of this book, involving Claire Aguilar, Jon Else, Anthony Falzone, Sam Green, Debra Kozee, Jan Krawitz, Dale Nelson, Stanley Nelson, Bill Nichols, Rick Prelinger, and Kristine Samuelson. Additional communication with many of these individuals took place by phone and email. Other information is taken from a range of sources as noted, including our own professional experiences; books, periodicals, and websites; and information provided by individuals and organizations on their personal and/or official websites and in their published or produced work. Chapter 1: The interview with Orlando Bagwell appears in Sheila’s “Eyes on the Rights,” Documentary (June 2005). The archivist quoted is a colleague of Kenn’s in San Francisco. Information about the audience for Shine a Light can be found in Shauna Lyon’s “Wanted: S.W.F., Loves Keef,” The New Yorker (November 13, 2006). The $4000, 16th century da Vinci illustrations were owned by the British Crown. For the Corbis information, see “Bill Gates Pictures Corbis’ Future,” Business Week (March 16, 2006). For information on the Getty sale, see “Getty Images To Sell Itself for $2.4 Billion,” The New York Times (February 25, 2008). Chapter 2: Civil War photographs can be found at the Library of Congress’s American Memory website, http://memory.loc.gov. AP’s photo division would later be called Wide World Photos and is currently called AP Images. The Lumière brothers’ films are readily available on DVD, and many can be seen on YouTube. Dickson’s Greeting and other early films can be viewed or downloaded from the Library of Congress, http://lcweb2.loc.gov, or obtained on DVD. A good source of information on the history of radio is J. Fred MacDonald’s Don’t Touch That Dial! (Chicago: Nelson-Hall, 1979). Popular Science newsreels, along with Paramount’s other specialty series, Unusual Occupations, can be obtained from Shields Archival (www.shieldspictures.com). United

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News issues can be found at the National Archives. For more information about All-American News, see Robin E. Wheeler’s “News for all Americans” in American Visions (February–March 1993); see also Raymond Fielding’s books, noted in the bibliography. Many ephemeral films from the Rick Prelinger Collection can be viewed and downloaded (for certain purposes) at the Internet Archive at www.archive.com. Chapter 3: The Apollo 11 image can be found online at http://grin. hq.nasa.gov. To find Flickr images that are offered under a Creative Commons license, see www.flickr.com/creativecommons/. The Vanderbilt Television News Archive is at www.tvnews.vanderbilt.edu. For links to archival sources around the world, go to the Public Moving Image Archives and Resource Center at the Library of Congress, www.loc.gov/ film/arch.html. Chapter 4: The Imperial War Museum is the primary depository of audiovisual materials related to World War II in the United Kingdom, at www.iwm.org.uk; it has several branches, much like the U.S. National Archives. Kenn spoke to Rena Kosersky by phone in December 2007. Chapter 5: Besides Filmworld and its Australian collections, Thought Equity represents the stock footage libraries of Paramount, Sony Pictures, HBO, and other collections. The still photo sequence by Joe Rosenthal of the flag raising at Iwo Jima can be found at www. iwojima.com/raising/raisingb.htm. Norman Hatch’s color footage of the flag raising can be found on YouTube at www.youtube.com/ watch?v=FbnZax_gwr8&NR=1. Chapter 6: FileMaker Pro is available from FileMaker, www. filemaker.com, or other software vendors. For information about SHOWLOG, contact Kenn’s company, Fulcrum Media Services, www.fulcrummediaservices.com. Chapter 7: Information about video formats can be found at www. mediacollege.com/video/format/, although they strangely disregard 3/4 U-matic. An online article by Ben Waggoner of Microsoft, with good technical information about the various HD formats, is at www.microsoft. com/windows/windowsmedia/howto/articles/UnderstandingHDFormats. aspx. Another, which discusses their use in American popular media, is at www.ebu.ch/en/technical/trev/trev_299-ive.pdf. NARA’s “Item Approval Request Form” can be downloaded at www.archives.gov/research/order/ item-approval-form.html. The Library of Congress “Request to Copy Film and Videotape From the LC Collections” can be found at www.loc.gov/rr/ mopic/ordform.pdf. For information about getting stills from the Library of Congress, see www.loc.gov/preserv/pds/photo.html; from NARA, see www.archives.gov/research/order/still-pictures.html. ProQuest’s individual

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newspaper page reprints are available through http://pqasb.pqarchiver. com/pageprints/item.html. To explore some of their other databases, go to www.il.proquest.com/products_hq/catalog/default.shtml. There are many more aspect ratios than are discussed in this chapter; one of the best online discussions of aspect ratio is at www.dvdaust.com/film_formats.htm. Chapter 8: See Jan Krawitz’s article, “Archival Footage in Documentary Filmmaking: Practical and Aesthetic Considerations,” in Stanford Humanities Review (volume 7.2, 1999). Additional material from Krawitz is drawn from her participation in the October 2007 panel on legal aspects of archival storytelling and from correspondence with the book’s authors. For more on Craig Baldwin’s work, see www.othercinemadvd.com. For more on Eyes on the Prize, see Sheila’s “Watching Eyes on the Prize” in DoubleTake: Points of Entry (Fall/Winter 2006); the website for the rebroadcast is www.pbs.org/wgbh/amex/eyesontheprize/ about/index.html. For more on Middlemarch and its films, go to www.middlemarch.com. Short “behind-the-scenes” video clips about the making of Alexander Hamilton can be found at the website of American Experience, www.pbs.org/wgbh/amex/hamilton/sfeature/scenes_06.html and www.pbs.org/wgbh/amex/hamilton/sfeature/cg.html. As of this writing, Gus Van Sant’s MILK is in postproduction. For more on Craig Baldwin’s work, see www.othercinemadvd.com. Chapter 9: Apple offers the “Ken Burns Effect” in its iMovie software. The website for The War is www.pbs.org/thewar; information about the production company can be found at www.florentinefilms.com. Chapter 10: See the website for detailed filmographies of participants. Stanley Nelson’s film on the siege of Wounded Knee will be the final episode of the PBS series, We Shall Remain, for American Experience. The Mergenthelar Linotype Company (1881–1954) collection is in Special Collections at the Library at the University of Delaware. As of this writing, Ari Folman’s Waltz with Bashir has played in competition at the 2008 Cannes Film Festival. It opened in Israel in June 2008. Chapter 11: For more information about U.S. copyright, see www.copyright.gov/circs/circ1.html; also www.copyright.gov/title17/. The data about copyright renewal is from Copyright Law Revision (Washington: U. S. Govt. Print. Off, 1961). Mark Twain is quoted in “Twain’s Plan to Beat the Copyright Law,” The New York Times (December 12, 1906). Attorney Chris Sprigman is quoted in “The Mouse that Ate the Public Domain,” FindLaw Legal News and Commentary (March 5, 2002). The George Mason University Digital History website can be accessed at http://chnm.gmu.edu/digitalhistory/ copyright/1.php. The U.S. Supreme Court’s decision in Eldred v. Ashcroft can be found at www.supremecourtus.gov/opinions/02pdf/01-618.pdf.

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Copyright issues for It’s a Wonderful Life are summarized in a 1999 article by Matt Alsdorf for Slate magazine, www.slate.com/id/1004242/. A New York Times article about the Rear Window case is at http:// query.nytimes.com/gst/fullpage.html?res=9C0CEFD7143DF936A15 757C0A966958260. Cases involving reproduction images of fine art include Bridgeman Art Library v. Corel Corporation and Eastern America Trio Products v. Tang Electronic Corporation. Right of privacy information comes from www.law.com. Information about state variations in privacy rights is from www.in.gov/legislative/ic/code/title32/ar36/ ch1.html. State-by-state rights of publicity laws can be found at the National Council of State Legislators’ website, www.ncsl.org/programs/ lis/privacy/publicity04.htm. An excellent source of information about copyright, fair use, and much more can be found at www.nolo.com; relevant materials on this site draw on Richard Stim’s Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Nolo: 2007). Chapter 12: A lengthy argument that the song “Happy Birthday to You,” is not subject to copyright protection has been published by Prof. Robert Brauneis at George Washington University Law School. See Robert Brauneis, “Copyright and the World’s Most Popular Song” at http://ssrn.com/abstract=1111624. Note that in 1996, as a result of GATT, Congress did offer retroactive protection to works by foreign authors published in the United States. The database for searching copyright records since January 1, 1978, is at www.copyright.gov/records/. The website for the copyright search request form is www.copyright.gov/ forms/search_estimate.html. For information about having the Library of Congress do your copyright search, see www.copyright.gov/circs/ circ22.html. For information about orphan works, see www.copyright. gov/orphan/orphan-report.pdf. Copyleft is explained at the website of the Free Software Foundation, www.fsf.org/licensing/essays/copyleft. html, and Creative Commons is at http://creativecommons.org. Chapter 13: The statistic, “85 percent of copyright holders before 1978 didn’t renew” is from the U.S. Copyright Office. Regarding presidential debates appearing as clips on YouTube, see Wired’s blog, http:// blog.wired.com/monkeybites/2007/07/presidential-de.html, and U.S. News & World Report, www.usnews.com/usnews/news/articles/070724/ 24youtube.htm. Gilberto Gil’s website is www.gilbertogil.com.br. The Gowers Review of Intellectual Property can be found at http://www. hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf. One of the most useful summaries is at the site of the U.K. Intellectual Property Office, www.ipo.gov.uk/policy/policy-issues/policy-issues-gowers.htm. Keep up to date on net neutrality issues at: http://savetheinternet.com. Information about Google’s purchase of YouTube can be found at

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www.google.com/intl/en/press/pressrel/youtube.html and www. youtube.com/watch?v=QCVxQ_3Ejkg. Lawrence Lessig’s new book, not released as of this publication, is titled The Fidelity in Translation. Chapter 14: For information about Folsom v. Marsh, see http://www. faculty.piercelaw.edu/redfield/library/Pdf/case-folsom.marsh.pdf. For an excellent overview of copyright and fair use, go to the Stanford Copyright & Fair Use Center website, http://fairuse.stanford.edu/Copyright_and_ Fair_Use_Overview/chapter9/9-a.html. See also Bound by Law? Tales from the Public Domain, in the bibliography. For an overview of parody and satire, written by Kyontze Hughes, go to www.firstamendmentcenter. org/speech/arts/topic.aspx?topic=parody_satire. Information about The Wind Done Gone can be found at www.freedomforum.org/templates/ document.asp?documentID=16230. For more on the “Pretty Woman” lawsuit, see Campbell, aka Skyywalker, et al v. Acuff-Rose Music, Inc. at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000& invol=u10426. Information about the Bill Graham case is also available online. The Definitive Elvis case was written up in Business Wire in October 2002; see http://findarticles.com/p/articles/mi_m0EIN/is_ 2002_Oct_23/ai_93215507. For general information about issues of fair use in documentary filmmaking, see Nancy Ramsey’s “The Hidden Cost of Documentaries,” in The New York Times (October 16, 2005). The Jan Krawitz material is from the Stanford article cited in Chapter 10, from transcripts of the 2007 panel at Stanford and from private correspondence. For the Statement of Best Practices and other resources, visit the excellent website of the American University Center for Social Media, www.centerforsocialmedia.org/resources/fair_use/. Chapter 15: The text and facsimile of the Statute of Anne (1710) can found at www.copyrighthistory.com/anne.html. The United Kingdom’s copyright act of 1911 can be read at www.wipo.int/clea/ docs_new/en/il/il013en.html#pop00000. More information about the Berne Convention is at www.wipo.int/treaties/en/ip/berne/trtdocs_ wo001.html. Information about Crown Copyright and obtaining Crown Copyright materials can be found at www.opsi.gov.uk/advice/ crown-copyright/index.htm. The Tariff 22 discussion can be found at www.cb-cda.gc.ca/tariffs/proposed/music-e.html. The U.K. 1988 Copyright, Designs and Patent Act can be found at: www.opsi.gov. uk/acts/acts1988/ukpga_19880048_en_1. Google’s public response to the Copiepress case is at http://googleblog.blogspot.com/2007/02/ about-copiepresse-decision.html, and a 2006 interview with Margaret Boribon of Copiepresse can be found at Groklaw, www.groklaw.net/ article.php?story=2006101108382797. For the Gowers Review, see Chapter 13 notes. The European Union Copyright Directive 2001

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can be found at: http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:32001L0029:EN:HTML. Chapter 16: The U.S. Information Agency film discussed is The March (1963). Sample letters for the DGA, WGA, and actors’ guilds can be found on the book’s website. Thought Equity Motion’s NCAA collection can be found at www.thoughtequity.com/ncaa. ESPN’s licensing division is at www.espnfootage.com/footage/index.jsp?content=content. html. Information about clearing through Artists Rights Society (ARS) in the United States is at www.arsny.com/procedures.html; you can search their database of artists represented at www.arsny.com/complete. html. At VAGA’s home page, www.vaga.org/, is a list of most of the artists they represent. Chapter 17: Kenn spoke with Patricia Shannahan by phone in December 2007. For ASCAP, BMI, and SESAC databases, see http:// www.sesac.com/repertory/repertory_main.asp, www.ascap.com/ace/, and www.bmi.com/licensing/. Section 253.7 of the Code of Federal Regulations, addressing music licensing for PBS and NPR, is reproduced at Bitlaw, www.bitlaw.com/source/37cfr/253_7.html. BBC’s commissioning website is at www.bbc.co.uk/commissioning/delivery/, and its music reporting form can be found at www.bbc.co.uk/commissioning/ forms/mrform1.pdf. The MCPS/PRS Alliance can be found at www. mcps-prs-alliance.co.uk, and the English site of Buma/Stemra is www. bumastemra.com/en-US/. To better understand the European Economic Area Agreement, see http://ec.europa.eu/external_relations/eea/. Information about the MCPS-PRS alliance can be found at www. mcps-prs-alliance.co.uk/. EMI for the United Kingdom and Ireland can be found at www.emimusic.co.uk/, and Universal Music in the United Kingdom can be found at www.umusic.co.uk/home/. To better understand the competitive marketplace in Europe, you should learn more about the European Economic Area Agreement, which went into force in 1994; see http://ec.europa.eu/external_relations/eea/. For more on the Buma/Stemra alliance, go to http://www.bumastemra. nl/en-US/OverBumaStemra/. Chapter 18: Bling’d: Blood, Diamonds, and Hip-Hop aired in February 2007 on VH-1. For YouTube’s Copyright Infringement Policy, see www. youtube.com/t/dmca_policy. Chapter 19: For the Smithsonian’s history, see http://siarchives. si.edu/history/main_legalhistory.html; also http://newsdesk.si.edu/ factsheets/SI-fact-sheet.htm. The U.S. Government Accountability Office report is available at www.gao.gov/new.items/d07275.pdf. See also Edward Wyatt’s “Smithsonian Agreement Angers Filmmakers,” The New York Times (April 1, 2006).

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Books An extended bibliography is available at www.archivalstorytelling.com. Some of the works cited are out of print but may be found through online sources such as AbeBooks, Alibris, or Powells. Aoki, Keith, Boyle, James, and Jennifer Jenkins. Bound by Law? Tales from the Public Domain. Durham: Center for the Study of the Public Domain, 2006. Available online at http://www.law.duke.edu/cspd/comics/. Bray, Mayfield. Guide to the Ford Film Collection at the National Archives. Washington, D.C.: The National Archives, 1970. Davies, Brenda. International Directory of Film and TV Documentation Sources. Brussels/New York: Fédération Internationale des Archives du Film (FIAF) and the Museum of Modern Art, N.Y., 1980. Donaldson, Michael C. Clearance and Copyright, 2nd ed. Los Angeles: Silman-James Press, 2003. Einstein, Daniel. Special Edition: A Guide to Network Television Documentary Series and Special News Reports, 1955–1979. Metuchen/London: Scarecrow Press, 1987. Einstein, Daniel. Special Edition: A Guide to Network Television Documentary Series and Special News Reports, 1980–1989. Lanham/London: Scarecrow Press, 1997. Fielding, Raymond. The American Newsreel 1911–1967. Norman: University of Oklahoma Press, 1972. Fielding, Raymond. The March of Time 1935–1961. New York/London: Oxford University Press, 1978. Fisher, Kim N. On the Screen: A Film, Television, and Video Research Guide. Littleton: Libraries Unlimited, Inc. 1986. Gell, Rick, Prelinger, Rick, and Elizabeth Scheines. Footage. New York: Second Line Search, Inc., 1997. Heins, Marjorie and Tricia Beckles. Will Fair Use Survive? New York: The Brennan Center for Justice at New York University School of Law, 2005. Heintze, James R. Scholar’s Guide to Washington, D.C. Audio Resources. Washington, D.C.: Woodrow Wilson International Center for Scholars, 1985.

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Kaid, Lynda Lee, Haynes, Kathleen J.M., and Charles E. Rand. Political Communication Center: A Catalog and Guide to the Archival Collections. Norman: The Political Communication Center, 1996. Leyda, Jay. Kino: A History of the Russian and Soviet Film, 3rd ed. Princeton: Princeton University Press, 1983. Melville, Annette. Special Collections in the Library of Congress: A Selective Guide. Washington, D.C.: Library of Congress/Government Printing Office, 1980. Middlemass, Jenny. Guide to Film and Television Research. Sydney: Allen & Unwin, 1992. Neuendorf, Kimberly A. The Content Analysis Guidebook. Sage Publications, 2001. See also the related website, http://academic.csuohio.edu/ kneuendorf/content/index.htm. Niver, Kemp R. Early Motion Pictures: The Paper Print Collection in the Library of Congress. Washington, D.C.: Library of Congress, 1985. Pflug, Walter W. A Guide to the Archives of Labor History and Urban Affairs, Wayne State University. Detroit: Wayne State University Press, 1974.

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Prelinger, Rick. The Field Guide to Sponsored Films. Washington, D.C.: National Film Preservation Foundation, 2006. Rowan, Bonnie G. and Cynthia J. Wood. Scholar’s Guide to Washington, D.C. Media Collections, 2nd ed. Washington, D.C.: Woodrow Wilson International Center for Scholars, 1994. Schultz, John and Barbara Schultz. Picture Research: A Practical Guide. New York: Van Nostrand Reinhold, 1991. Shamley, Sarah H. Television Interviews 1951–1955: A Catalogue of Longines Chronoscope Interviews in the National Archives. Washington, D.C.: National Archives and Records Administration, 1991. Smith, Ken. Mental Hygiene: Better Living Through Classroom Films 1945–1970, New York: Blast Books, 1999. Stanczak, Gregory C., ed. Visual Research Methods: Image, Society and Representation. Thousand Oaks: Sage Publications, 2007. Stim, Richard (legal ed.). Getting Permission: How to License & Clear Copyrighted Materials Online & Off, 3rd ed. Nolo, 2007.

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Films Many of these films are available for purchase or rental through online vendors, such as Netflix, Intelliflix, and others. Public television programs in the United States can sometimes be purchased through www. shopPBS.org. Some films can be ordered through a filmmaker’s website (or there will be links there to a distributor). Afraid So. Produced and edited by Jay Rosenblatt; poem by Jeanne Marie Beaumont. Alexander Hamilton. Produced and directed by Muffie Meyer; written and co-produced by Ronald Blumer; edited and co-produced by Sharon Sachs and Eric Seuel Davies. Benjamin Franklin. Produced and directed by Ellen Hovde and Muffie Meyer; written and co-produced by Ronald Blumer; edited by Donna Marino, Sharon Sachs, and Eric Davies. Bowling for Columbine. Produced, directed, and written by Michael Moore; additional producers: Kathleen Glynn, Jim Czarnecki, Charles Bishop, and Michael Donovan; edited by Kurt Engfehr. Chicago 10. Produced by Brett Morgen and Graydon Carter; directed and written by Brett Morgen; edited by Stuart Levy. The Civil War (series). Produced by Ken Burns and Ric Burns; directed by Ken Burns; written by Geoffrey C. Ward and Ric Burns with Ken Burns; edited by Paul Barnes, Bruce Shaw, and Tricia Reidy. Coal Face. Produced by John Grierson; directed by Alberto Cavalcanti; written by Montagu Slater; poem by W.H. Auden; edited by William Coldstream. Darwin’s Nightmare. Produced by Edouard Maruiat, Antonin Svoboda, Martin Gschlacht, Barbara Albert, Hubert Toint, and Hubert Sauper; directed and written by Hubert Sauper; edited by Denise Vindevogel. The Day After Trinity: J. Robert Oppenheimer and the Atomic Bomb. Produced and directed by Jon Else; written by David Webb Peoples, Janet Peoples, and Jon Else; edited by David Webb Peoples and Ralph Wikke. The Devil Never Sleeps (El Diablo nunca Duerme). Produced, directed, and written by Lourdes Portillo. Edited by Vivien Hillgrove Gilliam. Don’t Look Back. Produced by John Cort and Albert Grossman; directed, written, and edited by D.A. Pennebaker.

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Drive-in Blues. Produced, directed, written, and edited by Jan Krawitz. Enron: The Smartest Guys in the Room. Produced by Alex Gibney, Jason Kliot, and Susan Motamed; directed and written by Alex Gibney; edited and coproduced by Alison Ellwood. Eyes on the Prize (series). Episodes 1–6 produced by Orlando Bagwell, Callie Crossley, James A. DeVinney, and Judith Vecchione; edited by Daniel Eisenberg, Jeanne Jordan, and Charles Scott; series writer, Steve Fayer; executive producer, Henry Hampton. Episodes 7–14 produced by Sheila Bernard, Carroll Blue, James A. DeVinney, Madison Davis Lacy, Jr., Louis J. Massiah, Thomas Ott, Samuel Pollard, Terry Kay Rockefeller, Jacqueline Shearer, and Paul Stekler; edited by Lillian Benson, Betty Ciccarelli, Thomas Ott, and Charles Scott; series writer, Steve Fayer; executive producer, Henry Hampton. Fahrenheit 9/11. Produced by Jim Czarnecki, Kathleen Glynn, and Michael Moore; directed and written by Michael Moore; edited by Kurt Engfehr, Christopher Seward, and T. Woody Richman. The Good German. Produced by Ben Cosgrove and Gregory Jacobs, directed by Steven Soderbergh; written by Paul Attanasio from the book by Joseph Kanon; edited by Steven Soderbergh.

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Good Night, and Good Luck. Produced and written by George Clooney and Grant Heslov; directed by George Clooney; edited by Stephen Mirrione. The Great Depression (series). Produced by Henry Hampton, Lyn Goldfarb, Dante James, Terry Kay Rockefeller, and Stephen Stept; directed by Jon Else, Lyn Goldfarb, Eric Neudel, and Stephen Stept; written by Jon Else, Steve Fayer, Lyn Goldfarb, and Stephen Stept; edited by Lillian Benson, Marian Hunter, and Jon Neuburger. The Great Train Robbery. Produced by Thomas Edison; written and directed by Edwin S. Porter; from a story by Scott Marble. Grizzly Man. Produced by Erik Nelson; directed and narrated by Werner Herzog; edited by Joe Bini. Half Life. Produced, directed, and written by Dennis O’Rourke; edited by Tim Litchfield. Hip-Hop: Beyond Beats and Rhymes. Produced, directed, and written by Byron Hurt; Co-produced and edited by Sabrina Schmidt Gordon. Human Remains. Produced, directed, written, and edited by Jay Rosenblatt. In Harm’s Way. Directed, written, and edited by Jan Krawitz. An Inconvenient Truth. Produced by Lawrence Bender, Scott A.Burns, and Laurie David; directed by Davis Guggenheim; edited by Jay Lash Cassidy and Dan Swietlik.

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JFK. Produced by A. Kitman Ho, Oliver Stone, and Clayton Townsend; directed by Oliver Stone; written by Oliver Stone and Zachary Sklar from books by Jim Marrs and Jim Garrison; edited by Joe Hutshing and Pietro Scalia. Jonestown: The Life and Death of Peoples Temple. Produced and directed by Stanley Nelson; co-produced by Noland Walker; telescript by Noland Walker and Marcia Smith; edited by Lewis Erskine; co-edited by Aljernon Tunsil. Letters from Iwo Jima. Produced by Clint Eastwood, Robert Lorenz, Tim Moore, and Steven Spielberg; directed by Clint Eastwood; written by Iris Yamashita from a story by Iris Yamashita and Paul Haggis and books by Tadamichi Kuribayashi and Tsuyoko Yoshido; edited by Joel Cox and Gary D. Roach. Liberty! The American Revolution (series). Produced and directed by Ellen Hovde and Muffie Meyer; written by Ronald Blumer; edited by Molly Bernstein, Alison Ellwood, Sharon Sachs, and Joshua Waletzky. Little People. Written, directed, and edited by Jan Krawitz and Thomas Ott. Milk. Produced by Bruce Cohen, Dan Jinks, Barbara A. Hall, Dustin Lance Black, William Horberg, Bruna Papandrea, and Michael London; directed by Gus Van Sant; written by Dustin Lance Black; edited by Elliot Graham and Gus Van Sant.

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The Murder of Emmett Till. Produced and directed by Stanley Nelson; written by Marcia Smith; edited by Lewis Erskine. Night Mail. Produced and directed by Harry Watt and Basil Wright; poem by W.H. Auden; edited by Basil Wright. Outfoxed: Rupert Murdoch’s War on Journalism. Produced and directed by Robert Greenwald; co-produced by Laurel Busby, Jim Gilliam, Kate McArdle, and Devin Smith; edited by Jane Abramowitz, Doug Cheek, and Chris Gordon. Panorama Ephemera. Produced, directed, and edited by Rick Prelinger. Period Piece. Produced, directed, and edited by Jennifer Frame and Jay Rosenblatt. The Plow that Broke the Plains. Written and directed by Pare Lorenz; edited by Leo Zochling. Prayer. Produced, written, and edited by Jay Rosenblatt. The Queen. Produced by Andy Harries, François Ivernel, Christine Langan, Cameron McCracken, Scott Rudin, and Tracey Seaward; directed by Stephen Frears; written by Peter Morgan; edited by Lucia Zucchetti. The Rape of Europa. Produced, written, and directed by Richard Berge, Bonni Cohen, and Nicole Newnham; edited by Josh Peterson.

FILMS

The River. Written and directed by Pare Lorenz; edited by Lloyd Nosler and Leo Zochling. Sans Soleil. Conception, writing, producing and editing by Chris Marker. Shine a Light. Produced by Steve Bing, Michael Cohl, Mick Jagger, Victoria Pearman, Keith Richards, Jane Rose, Charlie Watts, Zane Weiner, and Ron Wood; directed by Martin Scorcese; edited by David Tedeschi. Shoah. Directed by Claude Lanzmann; edited by Ziva Postec and Anna Ruiz. Sing Faster: The Stagehands’ Ring Cycle. Produced, directed, and written by Jon Else; edited by Deborah Hoffman and Jay Boekelheide. The Smell of Burning Ants. Written, produced, and edited by Jay Rosenblatt. Spectres of the Spectrum. Written and directed by Craig Baldwin; edited by Bill Daniel. The Thin Blue Line. Produced by Mark Lipson; written and directed by Errol Morris; edited by Paul Barnes. This Film is Not Yet Rated. Produced by Alison Palmer Bourke, Eddie Schmidt, Evan Shapiro, and Jessica Wolfson; directed by Kirby Dick; written by Kirby Dick, Eddie Schmidt, and Matt Patterson; edited by Matthew Clarke.

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Underground. Produced by Emile de Antonio; directed by Emile de Antonio, Mary Lampson, and Haskell Wexler; edited by Mary Lampson. The Untold Story of Emmett Louis Till. Produced by Ceola Beauchamp, Edgar Beauchamp, Keith Beauchamp, Ali Bey, Yolande Geralds, Steve Laitmon, and Jacki Ochs; directed by Keith Beauchamp; edited by David Dessel. Victory at Sea (series). Produced by Henry Salomon; directed by M. Clay Adams; written by Henry Salomon and Richard Hanser; edited by Isaac Kleinerman. Vietnam: A Television History (series). Produced by Judith Vecchione, Elizabeth Deane, Andrew Pearson, Austin Hoyt, Martin Smith, Bruce Palling, and Henri De Turenne; edited by Eric W. Handley, Carol Hayward, Ruth Schell, Eric Neudel, Julian Ware, Glen Cardno, Paul Cleary, Jonathan Morris, Mavis Lyons Smull, and Daniel Eisenberg; chief correspondent, Stanley Karnow; executive producer, L. Richard Ellison. Waltz with Bashir. Produced by Ari Folman, Serge Lalou, Gerhard Meixner, Yael Nahlieli, and Roman Paul; written and directed by Ari Folman; edited by Feller Nili. The War (series). Produced by Ken Burns, Lynn Novick, and Sarah Botstein; directed by Ken Burns and Lynn Novick; written by Geoffrey C Ward; co-produced by Peter Miller and David McMahon; edited by Paul Barnes, Erik Ewers, and Tricia Reidy.

ARCHIVAL STORYTELLING

The Weather Underground. Produced by Sam Green, Bill Siegel, Carrie Lozano, and Marc Smolowitz; directed by Sam Green; co-directed by Bill Siegel; edited by Sam Green and Dawn Logsdon. When the Mountains Tremble. Produced by Peter Kinoy; directed by Newton Thomas Sigel and Pamela Yates; edited by Peter Kinoy. Wide Awake. Produced by Alan Berliner and Emily Stevens; written, directed, and edited by Alan Berliner. The World at War (series). Produced by David Elstein, Peter Batty, Ted Childs, Martin Smith, Ben Shepherd, John Pett, Phillip Whitehead, Michael Darlow, Hugh Raggett, Jerome Kuehl, Jeremy Isaacs, Susan McConachy, and Raye Farr; directed by Hugh Raggett, David Elstein, Ted Childs, Martin Smith, John Pett, and Michael Darlow; written by Neal Ascherson, Laurence Thompson, Peter Batty, Jerome Kuehl, J.P.W. Mallalieu, Charles Douglas-Home, David Wheeler, John Williams, Angus Calder, Charles Bloomberg, Stuart Hood, Courtney Browne, David Elstein, Jeremy Isaacs, and Michael Darlow; edited by Jeff Harvey, Peter Lee-Thompson, David Taylor, and Beryl Wilkins; executive producer, (Sir) Jeremy Isaacs.

315

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About the Authors Sheila Curran Bernard is an Emmy and Peabody Award-winning filmmaker and consultant and the author of Documentary Storytelling, a best-selling guide to story and structure in nonfiction filmmaking. She has played a leading role in creating, developing, and producing projects for national and international broadcast, theatrical release, and museum and classroom use. Her archival film credits include the series Eyes on the Prize, I’ll Make Me a World, This Far By Faith, America’s War on Poverty, and School, for which she also co-wrote the companion book. She has been a fellow at the MacDowell Colony for the Arts and the Virginia Center for the Creative Arts and has taught at Princeton University, Westbrook College, and elsewhere. She recently joined the faculty of the University at Albany, where she holds a joint appointment as Director of Media Programs at the New York State Writers Institute and Associate Director of the University’s Documentary Studies Program. Kenn Rabin is an internationally recognized expert on the use of archival materials in film storytelling. His credits include the dramatic features Milk, directed by Gus Van Sant; Good Night, and Good Luck, directed by George Clooney; and The Good German, directed by Steven Soderbergh, in addition to a number of acclaimed archival television series, including the 13-hour Vietnam: A Television History and the 14-hour Eyes on the Prize, for which he was nominated for an Emmy. Kenn teaches workshops throughout the country on dramatic storytelling, archival research, and rights negotiation and licensing, and he has been an invited speaker at the Miami Film Festival, the Woodrow Wilson International Center for Scholars at the Smithsonian Institution, New York Women in Film and Television, and numerous other scholarly, professional, and public organizations. He has taught at the Hutchins School of Liberal Studies, Sonoma State University. His web address is www.fulcrummediaservices.com. Please visit the book’s website, www.archivalstorytelling.com.

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Index A ABC News (ABC News Videosource), 36–37, 41, 169, 218–219, 287 ABC News radio collection, 41 Abraham and Mary Lincoln: A House Divided, 53, 131 Academy of Motion Picture Arts and Sciences, 111–112 Access, 5, 296–298 According to Plan: The Story of Modern Sidewalls for the Homes of America, 21–22 Actors clearance of, 254–255 fees paid to, 257–259 locating, 256–257 Actuality films, 17 Advertising agencies and industry, 3–4, 9, 66, 259 commercials as archival materials, 2, 49–50, 52, 259 and incidental capture, 293 political commercials, 49 slogans and trademarked characters, 165 Afraid So, 121 African-American History Collection, 44 Agents and actors, 256–258 and visual artists, 261 Agreements archival, 262–263 license, 245–246 rights-managed. See Rights-managed agreements royalty-free, 168–169 Aguilar, Claire, 141, 143, 152–153, 155 Alexander Hamilton, 126–128, 305 “All songs and masters,” 280 All-American News, 20, 22 American Federation of Musicians, 272 American Federation of Television and Radio Artists (AFTRA), 176, 252, 254–256 American Folklife Center (Library of Congress), 45–46 American Mutoscope and Biograph Company, 17 An Inconvenient Truth, 73, 295 Analog, video, 108, 114 Appearance releases, 180, 255 Architecture, 27, 261 Archival agreements, 262–263 Archival associations, 27–28 Archival footage, 128–130, 146 Archival materials access to, 5, 296–298 consolidation of, 8–9 distortion of, 8–9. See also Ethics in documentary programs, 290 existing films as, 30 identifying problems with, 241–242 reenactments and fakes, 149 tracking use through project, 95 types of, 2–3 unintentional value of, 6–7 users of, 3–4 Archives communicating with, 242–244 costs of, 243–244 license agreement provisions, 245–246 negotiation with, 244–246 “open,” 198–199 privatization of, 8–9 reporting footage use to, 247–249 Armed Forces Radio, 44

Arnold Genthe Collection, 43 Art, fine, 260–262 Art films, 119–121 Art on Film Online, 27 Artists Rights Society (ARS), 260–261 ASCAP, 268–270, 274 Aspect ratio considerations for, 112–114 definition of, 111 film vs. television/video, 111–112 in ordering masters, 111–114 Asphalt Jungle, The, 231 Attribution, 199, 236, 290 Australia fair dealing, 165, 294 Lisa Savage, 64–67 moral rights, 233, 238 news material, 37 “passing off,” 182 video standards, 101–102 Authors’ rights. See Moral rights

B Bagwell, Orlando, 5 Baldwin, Craig, 129 BBC (BBC Motion Gallery), 35–36, 44, 65–66, 69–70, 173, 199, 275 Beauchamp, Keith, 295 Benjamin Franklin, 126–127 Berliner, Alan, 130 Best, Hubert, 215, 229–240, 276–277 Bias, 17, 150–152, 209 Bill Graham Archives v. Dorling Kindersley Publishing, 216 Birth of a Nation, The, 18 Blackside Inc., 124–125, 172 Bling, and fair use, 286 Blumer, Ronald, 126–129 BMI, 268–270 Boolean operators, 32 Bowling for Columbine, 2 Brady, Matthew, 15–16, 43 Bridgeman Art Library v. Corel Corporation, 306 British Universities Film & Video Council, 27 Budget considerations budget categories, 88–89 budgeting for research, 55 budgeting for underlying rights, 175–176 license fee increases, 5 Budget work-arounds alternatives to U.S. public archives, 46 archival replacing location shooting, 2 more footage from less sources, 97 negotiations with archives, 249–251 using screeners as masters, 76 Burns, Ken, 3, 123, 131–140

C Cable television, 28, 55, 151, 166, 173, 267, 297 Cam Ne, 87–88 Canada, 59, 68–72, 165, 174, 233–234, 238, 267 Elizabeth Klinck, 52, 59, 68–72 Canadian Broadcasting Corporation, 70, 72 Canadian Copyright Act, 233 Cartoon music, 274 CBS, 24, 36, 41, 44, 66, 87–88, 121, 151, 243, 296 CBS Reports, 23, 37 Center for Internet and Society, Stanford University, 298

319

320

INDEX

Center for Social Media, American University, 221, 298 Cents per unit fee, 278 Characters, trademarked, 165–166 Chicago 10, 191 Chronology of events, 31 Cinéma vérité. See Vérité Civil War, The, 123, 131–132, 295 Civil War photography, 15, 43 Civilian Conservation Corps, 40 Clearance of fine art, 178–180, 260–262 of guilds. See Guild clearance of music. See Music clearances; Music licensing of newspapers, 177–178 of sports footage, 259–260 of television commercials, 259 Clips. See Hollywood clips Clooney, George, 1, 121 Coal Face, 20 Colorizing films, 194 Commercials. See Advertising Comp images, 97 Compilation documentary (development of), 117 Compulsory license, 274–275 Confiscated enemy films, 42–43 Copiepresse, suit against Google, 235 Copyleft, 198 Copyright activism regarding, 207–209, 295–299 automatic protection, 202, 204 Copyright Act of 1976, 161–162, 164, 212–215, 238 Copyright Term Extension Act, 162–163, 191, 202–203, 290 definition of, 159 Eldred v. Ashcroft, 162–163 enforcing of, 165 exceptions to, 165 expiration of, 119–120, 195 extending of, 201–202, 297–298 failure to register, 191 failure to renew, 191, 306 fair use tests, 8, 212–215 Gowers Review. See Gowers Review history of, 160–163, 201–202 holder of. See Rights holder information resources, 305–306 infringement of, 238, 292–293 international, 160–161, 229–240, 306 Internet issues. See Internet Lawrence Lessig conversation about, 201–210 length of protection, 163 registering of, 164–165 researching of, 192–193 Russia, 64 term of protection, 160–162 in United Kingdom, 229–240 works eligible for, 164 works for hire, 164 Copyright and Fair Use website (Stanford), 213 Copyright Office, 159 Corbis, 8–9, 34–36, 49, 99, 106, 261 Cornell Copyright Information Center, 193 Corporate collections, 49–50 Corporate presentations, 173 Cost per unit fees, 277–278 Creative Archive License Group, 199 Creative Commons, 34, 198, 204–205, 207, 285–286, 288, 290 Credits, 29–30, 267 Crown copyright, 232–233

Crystal sync, 23 C&S International Insurance Brokers, 167, 185–187, 283 CTV, 70–71 Cues from soundtracks, 273–274

D Daguerreotype, 15 Dailies, 86 Database. See Gatekeeper database Date searches, 32–33 Definitive Elvis, The, 216–217 Delegation of responsibility, 57–58 Densh , 198–199 Design patent, 160 Detroit Publishing Company Collection, 43 Devil Never Sleeps, The, 148 Dickson’s Greeting, 16–17, 303 Die Deutsche Wochenschau, 42–43 Digital intermediate, 108, 114 Digital technology and copyright activism, 203–204 Digital video formats vs. analog, 101, 114 Direct cinema (vérité), 23 Directors Guild of America, 252–254 Disney, 36, 162, 203–204, 298 Distributors, 25, 28, 30, 95, 156, 166, 278–279 Documentary archival footage, 290 ethics. See Ethics fair use. See Fair use government-sponsored, 20–21 historical. See Historical films and documentaries journalism vs. art, 143–144 television, 22–24 Documentation description of, 95 fair use works, 262 non-licensed material, 262 public domain works, 262 Dolan, Michael, 57, 73–81 Dramatic features, 121–123 Drive-in Blues, 118, 217–219, 283 Droits Moral. See Moral rights Drop frame vs. nondrop, 100 Dub, 98 Due diligence, 195–196 DVD distribution rights, 173–174

E Eastern America Trio Products v. Tang Electronic Corporation, 306 Edison, Thomas, 16–17, 42 Edison Collection (Library of Congress), 196 Edit decision list, 92, 100 Educational films, 22 Educational off-air recording, 275 Edward S. Curtis Collection, 44 Eldred v. Ashcroft, 162–163, 202–203 Electronic catalogs, 63 Electronic news gathering (ENG), 24 Electronic sell-through, 292 Else, Jon, 141–142, 148–152, 154–156 Enron: The Smartest Guys in the Room, 2 Ephemeral films, 21–22, 130, 147 Errors and omissions insurance, 166–167, 185–188, 294 Ethics, 141–157 Europe, 294 European Union, 17, 19, 23, 43, 46, 205–206, 294

copyright terms, 205–206 E.U. Copyright Directive, 240 Internet issues. See Internet video standards, 101–104 Exclusivity, 296–297 Existing films as archival material, 30 distributors of, 28 finding of, 25–29 as research tool, 29–30 Experimental films, 119–121 Experts. See Professionals Expired copyright, 119–120 Eyes on the Prize, 1, 88, 124–125, 155–156, 172, 242, 295, 305

F Factual programming, 152 Fahrenheit 9/11, 130 Failure to renew copyright, 191, 306 Fair dealing, 59, 165, 176, 229, 235–238, 294 Fair use best practices in, 221–224 cheating and, 227 description of, 8, 184, 286, 291 documentation of works in, 262 filmmaking and, 220–221 First Amendment and, 211 and getting materials from rights holder, 226 history of, 211–212 international distribution and, 224, 294 legal challenges, 215–219 as licensing alternative, 286 misconceptions about, 227 music licensing, 293 myths about, 219–220 notifying rights holders about, 225–227 potential market or value affected by, 214–215 purpose and character of, 213–214 tests for, in copyright law, 212–215 Fair Use Project, Stanford University, 184, 283, 285 “Fake” archival materials, 149 Falzone, Anthony, 184, 224–225, 283, 285–286, 291–293 Farm Security Administration, 7, 20, 43 Fees actors, 257–259 licensing, 63, 100 music consultants/supervisors, 53 music union, 272 visual researchers, 52 Film(s). See also Hollywood clips art, 119–121 colorizing, 194 downloading from Internet, 291–292 existing. See Existing films experimental, 119–121 fair use of, 220–221 historical. See Historical films and documentaries importance of, 295–296 pitching of, 25 social issue, 118–119 Film Australia, 65 Film Bank, 99 Film festivals, 33, 114, 166, 170–174, 220, 242, 245, 250, 275 Filmed entertainment, 256 Fine art, 260–262, 306 Flat art, 3 Flat fee, 277–278

Flexibility, 58 Folsom v. Marsh, 211–212, 214 Footage Farm, 46 Ford Film Collection, 40 Found footage, 120 Frame, Jennifer, 22 Frame grabs, 87 Frame rate and resolution, 101–104 Frances Benjamin Johnston Collection, 44

G Gatekeeper database benefits of using, 89–90, 95 building of, 89–92 definition of, 89 edit decision list linked with, 92 need for, 92 story number, 90 thumbnail images, 90–92 General sound recordings (Library of Congress), 45 George Kleine Collection, 42 Getty Images, 1–06, 9, 34–37, 49, 99, 169, 261, 288 Gil, Gilberto, 206–207 Good German, The, 61, 122–123 Good Night, and Good Luck, 1, 121–122, 163, 243 Government-sponsored documentary, 20–21 Gowers Review of Intellectual Property, 205–206, 239–240, 306 Graphics description of, 3 obtaining of, 106–108 Grateful Dead: The Illustrated Trip, The, 216 Great Depression, The, 150 Great Train Robbery, The, 6 Green, Kevin, 55, 60, 73–81 Green, Sam, 283, 286–288, 291–292 Greenwald, Robert, 225 Grierson, John, 20 Griffith, D.W., 6, 17, 42 Grizzly Man, 1 Guerilla video, 23 Guild clearances actors. See Actors American Federation of Television and Radio Artists, 254–256 definition of, 252 Directors Guild of America, 252–254 notifying the guild, 255–259 Screen Actors Guild, 254–256 Writers Guild of America, 253–254

321

H Half Life, 80 Halftone process, 16 “Happy Birthday to You,” 191–192 Harmon Foundation Collection, 40 Harry Fox Agency, 279 Heliograph, 15 High definition aspect ratio, 111 for digital intermediates, 114 file formats, 102–104 Hip Hop: Beyond Beats & Rhymes, 224 Historical films and documentaries archival footage used in, 128–130 Blackside, 124–125 description of, 123–124 Geoffrey C. Ward conversation about, 131–140 Middlemarch Films, 125–128

INDEX

Historical films and documentaries (Continued) music for, 53 Ronald Blumer conversation about, 124–128 visuals used in, 134 Historical societies, 48 Historical storytelling, 131–140 Hollywood, 17–18 Hollywood clips guild clearances actors. See Actors American Federation of Television and Radio Artists (AFTRA), 254–256 definition of, 252 Directors Guild of America (DGA), 252–254 notifying the guild, 255–259 Screen Actors Guild (SAG), 254–256 Writers Guild of America (WGA), 253–254 integrity and order of shots, 251 soundtrack, 251–252 Hollywood studio stock libraries, 37 Home movies, 3–4, 47, 67, 130, 149, 154, 216 Home video, 173–174 Human Remains, 121

I

322

INDEX

Imperial War Museum, The, 27, 80, 122 Incidental capture, 238–239 Independent Television Service (ITVS), 143, 152–153 Industrial collections, 49–50 Industrial property, 159 Inside Nazi Germany, 19 Insurance. See Errors and omissions insurance Intellectual property (IP) copyright. See Copyright definition of, 159 description of, 8 industrial property, 159 perspectives on, 298 Interlaced format, 102–103 Intermediaries, 46 Intermediates description of, 105 digital, 108, 114 International copyright description of, 160–161, 229–240 fair use issues, 224, 294 International standard, 101 Internet access to “open” materials, 204–205 moving images obtained from, 33–35, 110 and music licensing, 233–234, 276–277, 279–280 communication theory (defined), 234 as distribution channel, 101, 170, 174, 184, 250, 276, 284–285, 290–292, 294 emissions theory (defined), 234 and World Intellectual Property Organization (WIPO), 234 national boundaries issues, 233–234, 276–277, 284 net neutrality, 208–209, 297 piracy from, 208, 285 searches and search engines, 26–28, 32–33, 37, 57, 66 stills obtained from, 106–108 streaming vs. downloadable, 174 Tariff 22 case (SOCAN). See Tariff 22 watchdog organizations, 297–298 Internet Archive, 21, 47, 147, 154–155, 203, 288 Internet Movie Database, 27, 53 Item Approval Request Form (NARA), 104–106

ITN, 37, 70, 109 It’s a Wonderful Life, 177, 193 Ivens, Joris, 19

J Jaszi, Peter, 194, 222–225 JFK, 295 Jonestown: The Life and Death of Peoples Temple, 142, 145, 153–154 JPEG. See Photographic file formats

K Kahle, Brewster, 203–204 Kandaurov, Alexander, 61–64 Kinescopes, 121, 129 Kinofabriki, 117 Klinck, Elizabeth, 52, 59, 68–72 Koserksy, Rena, 53–55 Kozee, Debra, 283, 291, 294 Krasnogorsk Archives, 62–63 Krawitz, Jan, 118–119, 217–219, 244, 283, 290, 292

L Lanzmann, Claude, 153 Legal contracts, 168 Legal issues, 283–294 Les Misérables, 215 Lessig, Lawrence, 160, 162, 201–210, 288, 298 Letterboxing, 112–113 Letters from Iwo Jima, 79 Liberty! The American Revolution, 126 Libraries description of, 48 newspaper collections, 109 Library of Congress American Folklife Center, 45–46 copyright research by, 192 description of, 41–42, 74 finding materials from, 20–21, 46 intermediaries for working with, 46 magazine collections, 45 motion picture collection, 20–21, 42–43 newspaper collections, 45 ordering moving images from, 106 ordering of materials from, 46 Paper Print Collection, 42, 74 Prelinger Archives acquired by, 21 public domain, 77 sound collections, 44–45 stills collection, 20–21, 43–44 License from copyright holder, 244 Creative Commons, 34, 198, 204–205, 207, 285–286, 288, 290 limited time, 171–172, 285 restrictions on, 285 time periods for, 171 License agreement, 245–246 Licensing alternatives to, 285–286 complexity of, 184 definition of, 166 of music. See Music licensing Licensing fees in Moscow, 63 screener fees applied to, 100 Limited markets, 172–174 Little People, 118–119, 283

Loaner screening tapes, 98 Local collections, 47 Local television news footage, 47–48 Logos and branding (use of), 177 Lomax, John & Alan, 197 Long-playing records, 18 Lumière, Auguste and Louis, 17

M Magazines, 45 March of Time, The, 19, 39 Marconi, Guglielmo, 18 Marker, Chris, 120 Master(s) moving image. See Moving image, masters music, 271–272 video, 110–115 Master use rights. See Music licensing Materials release, 168 Mechanical Copyright Protection Society, 276 Mechanical rights, 279 Media literacy, 7, 137 Meet the Press Collection, 42 Middlemarch Films, 125–128 Military collections at March AFB, 21 at NARA, 21, 39, 76 Milk, 129 Milo Ryan Phonoarchive Collection, 41 Montage (and per clip minimums), 247 Moore, Michael, 130, 148 Moral rights, 180, 215, 224, 231–233, 294 Morgen, Brett, 191 Morris, Errol, 129, 148 Morse, Samuel F.B., 16 Most favored nation status, 279–281 “all songs and masters,” 280 Motion picture photography history of, 16–17 Hollywood, 17–18 missing originals, 99 U.S. Library of Congress collection, 42–43 Moves on still images, 108–109 Moving images historical, 2–3 illustrative, 2 masters for 35 mm release, 114–115 aspect ratio of, 111–113 ordering of, 110–115 Murder of Emmett Till, The, 142, 153, 295 Museums, 173, 178–179, 261–262 Music. See also Music licensing; Sound arrangements, 197 background use of, 266–267 cartoon, 274 clearing of. See Music licensing credits use of, 267 description of, 3 embedded music, 273–274 ethical considerations, 53, 125, 155–156 featured use of, 266 historical films’ use of, 53 licensing of. See Music licensing period music, 125 public domain, 196–197, 272 temp track for, 98 traditional, 197 underscore, 252, 266 Music collections, 78 Music consultants, 52–55 Music licensing

alternatives to, 281–282 for American public television, 274–276 description of, 265 distributors, 278–279 in the European Union, 276–277 fair use claims, 293 flat fee versus per unit, 277–278 intended markets, 267 Internet, 276–277 master use rights definition of, 266 description of, 271 record labels, 271–272 union fees (AFM), 272 mechanical rights, 279 most favored nation (MFN), 279–281 option windows, 267–268 performance rights, 279 performing rights societies, 268 planning for, 282 production music libraries, 281–282 professional help, 265 synchronization rights clearing of, 268–271 definition of, 266 international rights, 270 publishers, 268–270 Music publishers, 268–271 Music recording, 18 Music supervisor, 53 Muybridge, Eadweard, 16

N NARA. See National Archives and Records Administration NASA audio collection catalog, 41 National Archives and Records Administration alternatives to, 46 audio collection at, 78 conversations about, 73–81 description of, 20–21, 38, 75 finding materials from, 46 Item Approval Request Form, 104–106 laboratories working with, 105–106 moving image collections description of, 38–39 ordering from, 46, 104–106 public domain DVDs from, 39–40 sound collections, 40–41 stills collections, 40 viewing materials at, 38 National Library of Medicine, 26 National Public Radio catalog, 40 NBC New (NBC News Archive), 12–13, 18, 22, 36–37, 42, 55, 99, 138, 205, 227 Negotiation, 244–246 Nelson, Dale Ellen, 217, 284–286, 291–294 Nelson, Stanley, 142, 144–146, 150, 153–156, 295 Network (“net”) neutrality, 209 Networks, 28, 36–37 News agencies, 36–37 News archives, 36–37, 169 News footage, 47–48 News materials, 36–37 News of the Day, 19 Newsgathering, 23–24 Newspapers clearing, 177–178 collections from, 49 Library of Congress collection of, 45 ordering of, 109

323

INDEX

Newsreels confiscated enemy, 43 French (Pathé, Gaumont), 19 history of, 19–20, 22 Italian, 43 Japanese, 43 reliability of, 19, 150 specialty, 19–21 U.S., 19, 22, 39 NICEM Film & Video Finder, 27 Nichols, Bill, 142–144, 148–149, 153–154 Niépce, Nicéphore, 15 Night Mail, 20 Niver, Kemp, 42 Nondrop timecode, 100 Non-exclusive rights, 170–171 Nonobjection letter, 225 North Wind Picture Archives, 46 Novick, Lynn, 3, 131–140 NTSC, 101–102

O

324

Office of War Information (OWI) Collection, 43 Offline editing, 97–100 Online downloading of still images, 106–107 Online searches. See also Internet description of, 26–27, 66 by visual researchers, 57–58 Online viewing of still images, 106 Optical printer, 120 Option windows music rights, 267–268 video archives, 250–251 Ordering from Library of Congress, 106 moving image masters, 110–115 moving images, 104–106 from National Archives and Records Administration, 104–106 for offline editing, 97–100 still images, 107 O’Rourke, Dennis, 80 Orphan works, 195–196, 203 Outfoxed, 225 Outtakes, 71–72

P PAL, 101–102 Paper Print Collection. See Library of Congress Parody, 214–215, 237–238 Passport International Production (“Passport case”), 216–217 Patent, 160 Patent and Trademark Office, 159–160 Per clip minimums, 248 Per cut maximums, 247 Per cut minimums, 246–248 Per second minimums, 246 Performance rights, 279 Performing rights organization, 268 Performing Rights Society, 276 Period music, 125 Period Piece, 120 Period visuals, 128–129 Permission-based media, 289 Perpetuity, 171–174, 245 and fair use, 224 and moral rights, 180, 215 and right of publicity, 182

INDEX

Personal collections, 3, 47 Personal rights privacy, 180–182, 255 publicity/personality, 182–183, 255 Pettit, Polly, 61, 73–81 Photographic file formats JPEG, 107 TIFF, 107 Photography, motion picture. See Motion picture photography Photography, still. See Still images and photography Photojournalism, 49 Picture lock, 86, 244, 247 Pillarboxing, 113 Place of Our Own, A, 154 Plow that Broke the Plains, The, 20 Political commercials, 49 Political figures, 183 Popular Science, 19–20 Portable video technology, 23 Porter, Edwin S., 6 Portillo, Lourdes, 148 Prelinger, Rick, 21, 142, 146–148, 154, 156, 189, 284, 288–289, 291 Preservation copies, 105 “Pretty Woman” and “Oh, Pretty Woman,” 216 Prints 35 mm, 114–115 description of, 107 Privacy rights, 180–182, 255 Process projection, 122 Production houses, 28 Production music libraries, 275 Production step, of workflow, 85–86 Professionals benefits of using, 51–52, 59–60 music consultants, 52–55 music licensing, 265 visual researchers. See Visual researchers Progressive scanning, 102 Propaganda, 7, 20 ProQuest databases, 109 Public domain colorized films, 194 complexities of, 193–195 Cornell public domain chart, 193 definition of, 8 description of, 184, 189 documentation of works in, 262 failure to renew copyright, 191, 306 films removed from, 176–177, 193 how works enter into, 190–191 international, 193 Library of Congress, 77 modified works, 194 music, 196–197, 272 protection of, 297 researching of copyright, 192–193 restricted access to materials, 195 shrinking of, 297–298 sound, 196 underlying rights in, 176–177 in United Kingdom, 232–233 voluntary, 197–199 works in, 190–193 Public television, 274–276 Publicity materials used for, 174 rights to, 182–183, 255

Q

S

Queen, The, 1 Quit claim, 175

Samuelson, Kristine, 284, 291–292 Sandbox (WGBH), 199 Satire, 178, 214, 235–238 Savage, Lisa, 57, 64–67 Scan lines, 102 Scan resolution, 108 Scorcese, Martin, 7 Screen Actors Guild (SAG), 254–256 Screeners definition of, 98 description of, 63 license fees and, 100 missing motion picture originals, 99 obtaining of, 98–99 purpose of, 98 time code and, 100 Scripts, 132, 140 Search engines, 32–33 SECAM, 102 SESAC, 268, 270 Shannahan, Patricia, 265, 270, 280–282 Sheet music, 18 Shine a Light, 303 Shoah, 153 SHOWLOG, 90–94 Showtime Networks, 296–297 Shub, Esther, 117 Siedel, Bill, 130 Silent footage, 154 Sing Faster, 141, 221 Smithsonian Institution, 38 Center for Folklife Programs and Cultural Heritage, 45 divisions of, 74 Smithsonian on Demand (Showtime), 296–297 SOCAN, 233–234 Social issue films, 118–119 Soderbergh, Steven, 122 “Sonny Bono Act, The.” See Copyright Team Extension Act (1998) Sound. See also Music adding to silent footage, 154 charging for, 248–249 description of, 3 manipulation of, 149–150 public domain, 196 withholding of, 155 Sound collections Library of Congress, 44–45 National Archives and Records Administration, 40–41 Soundalikes, 281 Soundtracks cues from, 273–274 Hollywood films, 251–252 mechanical rights, 279 Source reference number, 90 Specialty newsreels. See Newsreels Spectres of the Spectrum, 129–130 Spitting Image, The, 237–238 Sports footage, 259–260 Standard definition format, 100–102 Statement of Best Practices in Fair Use. See Documentary Filmmakers’ Statement of Best Practices in Fair Use Statute of Anne (1710), 229 Still images and photography in Canada, 72 commercial archives of, 35–36

R Radio, 18–19 Rape of Europa, The, 64 Rear Window, 177 Recordings, 18 Reel-to-reel audiotape, 19 Reenactment footage, 148–149 Reference materials, 28–29 Reproductions of artwork, 261 Research in Australia, 64–67 in Canada, 68–72 credits used as starting point for, 29–30 existing films used for, 29–30 quality, 55–56 in Russia, 61–64 time requirements, 55–56 tips for performing, 30–32 in Washington, D.C., 73–81 wish list, 31–32 Researchers advocacy by, 58–59 benefits of using, 59–60 copyright research, 192 in creative team, 56–58 delegating responsibility to, 57–58 fees of, 52 finding of, 53 online searches by, 57–58 time needed by, 55–56 traits of, 56–57 treatment given to, 57 when to contact, 54–55 Residuals, 252 Resolution scan, 108 video format, 102–103 Rights holder communicating with, 242–244 enjoining of film by, 263 getting materials from, 226 license from, 244 negotiation with, 244–246 option window, 250–251 Rights-managed agreements description of, 34, 106 elements of, 169–175 geographic limitations, 174 limited markets, 172–174 limited time, 171–172 non-exclusive rights, 170–171 one-time use, 169–170 overview of, 169–170 quit claim, 175 uses of, 169 River, The, 20 Rodgers, Richard, 138 Rosenblatt, Jay, 22, 120–121 Rough cut, 86, 243 Rowan, Bonnie, 55, 59, 73–81 Royalty-free agreements, 168–169 Royalty-free material, 34, 106 Russia (and USSR) copyright law, 231 research in, 61–64

325

INDEX

Still images and photography (Continued) description of, 3 downloading of, 106–107 history of, 15–16 Library of Congress collection, 43–44 National Archives and Records Administration collection, 40 obtaining of, 106–108 online downloading of, 97, 106–107 online viewing of, 106 ordering of, 107 shooting moves on, 108–109 uses of, 139 Stock footage, 150–151 Story arc, 86 Story number, 90 Streaming, 174, 292 Stunt performers, 258 Submaster, 115 Supreme Court Oral Argument Collection, 41 Synchronization rights clearing of, 268–271 definition of, 266 embedded music, 273–274 international rights, 270 multiple publishers, 269–270 multiple songs, 271 publishers, 268–271

T

326

Tariff, 22, 233–234 Technology, 5–6 Telegraph, 16 Television commercials, 173, 259 Television documentary, 22–24 Television news archive, 169 footage, 47–48 history of, 22–24 Temp track, 98 Terror of Tiny Town, The, 119 Tesla, Nicola, 18 Thaxton, David, 55–56, 60, 73–81 Theatrical film clip, 252 Theatrical release (35 mm), 114–115 Thin Blue Line, The, 129 This Film is Not Yet Rated, 236 Thumbnail image, 90–92 TIFF. See Photographic file formats Time code, 100, 247 Trademarks, 160, 165–166, 177–178, 183 Transcription discs, 18 Treatments description of, 57 writing of, 132 Triumph of the Will, 144 True 24p, 103–104

U Underground, 130 Underlying rights, 175–177 Underscore music, 252, 266 Union fees, 272 United Kingdom, 229–240 United News, 20 Universal News Collection, 40 Universities, 48 Untold Story of Emmett Louis Till, The, 295 Unusual Occupations, 303 U.S. Library of Congress. See Library of Congress

INDEX

U.S. public archives description of, 37–38 National Archives and Records Administration. See National Archives and Records Administration

V Van Sant, Gus, 129 Vanderbilt Television News Archive, 36–37 Vérité, 17, 23, 30, 71, 147, 165, 238, 273, 293 Vertical resolution, 103 Victory at Sea, 138 Video aspect ratios, 111 Video formats digital, 101 high definition, 102–104 information resources, 304–305 overview of, 100–101 standard definition, 101–102 Video masters from archives, 110–111 ordering of, 110–115 Video technology, 23–24 Videotaped television, 256 Vietnam: A Television History, 87–88, 124, 181 Visual art, 178–179 Visual Artists and Galleries Association (VAGA), 260–261 Visual Artists Rights Act of 1990, 180 Visual researchers advocacy by, 58–59 benefits of using, 59–60 delegating responsibility to, 57–58 fees of, 52 finding of, 53 lead time needed for, 54–56 online searches by, 57–58 as part of creative team, 56–58 traits of, 56–57 Visuals negotiating rights for, 244–246 per cut maximums, 247 per cut minimums, 246–247 per second minimums, 246 Vitaphone, 45

W Waltz with Bashir, 155, 305 War, The, 3, 88, 131, 133, 135, 137, 139, 305 Ward, Geoffrey C., 123, 131–140 Warner Bros., 37, 70, 217, 269, 271–273, 291 Washington, D.C., 73–81 We Shall Remain, 305 Weather Underground, The, 130, 283, 286–287 When the Mountains Tremble, 151 White Paper (NBC), 23 Who Do You Think You Are?, 65–66 Wide Awake, 130 Wind Done Gone, The, 215–216 Wire services, 16 Wish list, 31–32 Workflow, production, 85–87 Works for hire, 164 Works Progress/Projects Administration (WPA), 20, 40 World at War, The, 90, 155 World Intellectual Property Organization (WIPO), 159, 234 World War II crimes records, 41, 304 Writers Guild of America (WGA), 253–254 Writings of George Washington, The, 211