This study conducted by Pat Aufderheide and Peter Jaszi of American University's Center for Social Media describes the adverse effects of more stringent copyright and licensing laws on documentary filmmakers. Aufderheide and Jaszi interviewed 45 professional documentary filmmakers in their study. As a result of these interviews, the team found a series of common problems in the rights clearance process: escalating costs, an arduous process and self-censorship as a result. While these filmmakers are seen as hurt by copyright laws, they also understand that they would like their own work to be copyrighted, and in the end do not want to do away with rights clearances, but want to make the process more rational. The report also details the next steps that should be taken to facilitate the clearance process and build greater awareness of filmmakers' use rights.
Kembrew MacLeod takes a decidedly anti-corporate stance in Freedom of Expression, as he details the effects conglomeratization and more stringent laws have had on creative industries such as music, film and other art forms. MacLeod believes that these laws cause the creators of culture to self-censor in order to prevent legal action, and that as more laws are created (such as the DMCA) more self-censorship will occur. According to MacLeod, this increasingly hostile environment then pits "Intellectual Property" against "Freedom of Expression." MacLeod feels that both IP and free expression can co-exist, but not in the current legal climate.
This article began Wired Magazine’s coverage of the state of Eyes on the Prize and details how the escalating cost of rights clearances have affected the film. The article explains the current situation: rights for Eyes on the Prize began to expire in the mid-1990s, and these expired clearances prevent the film from being distributed on DVD. This already difficult issue is complicated by the fact that the director of the films died in 1998, and the current owners of the production company are not filmmakers. It is estimated that it will cost about $500,000 to re-clear the film’s rights. Several scholars also weigh in on the particular importance of screening this documentary publicly, and its unique social benefit.
This article from the Southern California Law Review highlights the importance of the preservation of fair use rights in the educational realm. Silverberg describes the changes to the fair use landscape in the past few decades, and then highlights how these changes specifically affect academia. Current “safe harbors” for academic fair use are critiqued as being overly restrictive, and the author urges the court to take a less restrictive view on fair use claims, in order to increase academic discourse.
In this article, Carol Bartow examines the difference between copyright infringement and the protections afforded parodies and works that use other works as “inspiration.” Central to this argument is Alice Randall’s The Wind Done Gone; a derivative work of Margaret Mitchell’s novel Gone with the Wind, told from the perspective of Scarlett's multiracial half-sister. Bartow takes issue with the doctrine of “Substantial Similarity” and feels it has sometimes been used too strictly to penalize those who draw creative inspirations from other works. According to Bartow, the solution to navigating the murky territory of derivative works is a more consistent judicial treatment of copyright infringement claims.
In this article for Wired Magazine, Larry Lessig offers an overview of some of the troubles causes by over-protective copyright laws. As an example, Lessig tries to license the song "Happy Birthday" for recording and distribution, in honor of the first “birthday” of the Free Culture Movement. In order to obtain the rights to the song, Lessig must navigate through a web of nonresposive organizations and exorbitant fees. In the end, Lessig does not obtain the ability to record the song at all, revealing the weakness and confusion that are present in the current copyright system.
This article maps the history of copyright over the past 250 years, and the changes that this legal field is currently undergoing. The article argues that until the advent of the internet, copyright increasingly supported centralized commercial control. However, the rise of the internet has challenged the feasibility of this centralized control. The authors argue that copyright's basic function must be changed in order to deal with the current reality of decentralized content and an ever-expanding marketplace of ideas.
As a follow-up to their exploratory report of the effects of copyright restrictions on documentary filmmakers, Pat Aufderheide and Peter Jaszi have collaborated with a group of filmmakers, lawyers and other experts to create a statement of best practices for claims of fair use in documentary filmmaking. This statement will help guide filmmakers in their claims of fair use, and help inform them what material is within their bounds. This statement of best practices will help standardize the process of seeking and obtaining rights in the documentary film world, and assist in helping filmmakers make legally informed decisions. According to the statement, documentary filmmakers should be afforded the same rights as cultural and historical critics in print media.
This article argues that the authenticity of real-life images (instead of reenactments) in documentaries is essential, and powerful restrictions on fair use are increasingly erasing the real images from our film culture. Images and video clips, the backbone of documentaries, are increasingly in the hands of high-priced corporate archives. This fact, coupled with the fact that rights are often cleared for only very short periods (thanks to the advent of DVD technology) is severely limiting the leeway filmmakers have in producing genuine cultural products.
This book explores the historical and legal frameworks governing intellectual property law. Moreover, this book describes how these assumptions and frameworks have been completely changed by the introduction of the internet and other media like DVDs and CDs. Various theoretical arguments, both for minimizing and maximizing IP protection, are explored in the context of current issues like webcasting and the legal definition of trespass in cyberspace. These practical applications help illuminate the complicated nature of IP in an increasingly digital world.
This article examines the paranoid state of affairs in the modern entertainment arena in regards to copyright. The article adds a new dimension to the issue of protecting copyright by describing a new "spider" that is able to pinpoint the creator of illegal BitTorrent seeds. This extreme crackdown highlights the pervasive "us vs. them" mentality that has kept films like Eyes on the Prize from being distributed. The author calls for a special priority for education documentaries to claim fair use, a move made more difficult by increasingly stringent laws. Digital Rights Management and the clampdown on sometimes-illegal P2P practices such as BitTorrent is a hot topic, since entertainment companies are hoping to keep a tighter grasp on their properties, even if this is at the expense of public enrichment.
This site, run by Stanford University, is a clearinghouse for up-to-date information on copyright issues and legislation. Connected with Stanford Law School and Professor Larry Lessig, this site provides links to articles and guides detailing current copyright and fair use issues. Articles from experts commenting on recent court cases is also available. Here, visitors can also download a full version of Lessig’s latest book, Free Culture.
The struggle between documentary filmmakers claiming fair use and companies claiming copyright is not new. However, the tension between these two camps has been increasing in recent years. Filmmakers warn that the increasing difficulty of rights clearance will threaten the livelihood of documentary filmmaking as well as the health of the public domain. However, these same filmmakers rely on copyright to protect their works. The article details the rise of Intellectual Property laws in the past 20 years and the changing face of archive houses. After highlighting the situation, the article also offers up potential solutions that filmmakers are beginning to implement.
In Who Owns Culture? Susan Scafidi navigates the unstable relationship between cultural creation and legal protection of cultural works. Scafidi is particularly interested in the notion of individual creation. The book highlights how American law privileges individual creation over group or communal works. In this book, the basics behind cultural commoditization, ownership and commercialization are explored, as well as the uneven legal framework that governs cultural products.
Spurred on by the publication of the Aufderheide and Jaszi report, Matt Dunne explores the strugglers of documentary filmmakers trying to fund their projects in this article. Dunne expresses the growing frustration in the documentary community at having to face large fees and mountains of paperwork before releasing a film. Dunne also notes that the commercial success of some recent documentaries such as Fahrenheit 9/11, may make the position of documentaries in the legal realm even more precarious. As the difficulties rise for filmmakers, Dunne draws a parallel to recent music lawsuits and the increasing difficulty of fair use claims for academic books.