fair use? what fair use?

The high cost of getting permission to use archival footage and photos threatens to put makers of documentaries out of business:

As Americans commemorate Martin Luther King Jr. and his legacy today, no television channel will be broadcasting the documentary series Eyes on the Prize. Produced in the 1980s and widely considered the most important encapsulation of the American civil-rights movement on video, the documentary series can no longer be broadcast or sold anywhere.

Why? The makers of the series no longer have permission for the archival footage they previously used of such key events as the historic protest marches or the confrontations with Southern police. Given Eyes on the Prize's tight budget, typical of any documentary, its filmmakers could barely afford the minimum five-year rights for use of the clips. That permission has long since expired, and the $250,000 to $500,000 needed to clear the numerous copyrights involved is proving too expensive. [...]

"The owners of the libraries, which are now increasingly under corporate consolidation, see this as a ready source of income," Else says. "It has turned our history into a commodity. They might as well be selling underwear or gasoline." [...]

Before the digital and documentary explosion, a clip of President Nixon speaking, for instance, usually could be licensed "in perpetuity," meaning that the film could continue to use the footage indefinitely. Now the incentive is for copyright owners to grant only limited permission. "Increasingly, it's harder and harder to get 'in perpetuity,' because rights-holders realize that somebody will have to come back in five years or 10 years and pay more money," Flahive says. [...]

"Why do you think the History Channel is what it is? Why do you think it's all World War II documentaries? It's because it's public-domain footage. So the history we're seeing is being skewed towards what's fallen into public domain," says filmmaker Robert Stone in the American University study.

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49 Responses:

  1. sparklewench says:

    well yeah, they do copyright DNA sequences. proprietary potatoes.

    I thought the spirit behind copyright laws originally was to encourage creation of ideas, not stifle the spreading of them. oh well, greed has overcome common sense.

    • robflynn says:

      Like you, I think I'm some how not surprised at all.

    • c0nsumer says:

      Copyrights were put in place to grant a temporary exclusivity of use, so the author could benefit financially. Then after a period of time the work was to fall into public domain, to benefit soceity as a whole. Unfortunately this wonderful original idea has been bastardized beyond recognition.

    • lars_larsen says:

      You dont even have to INVENT the DNA sequence to patent it. You can simply DISCOVER it in nature.

      The genes that predispose someone to breast cancer have been patented. Meaning only one company can produce the test (and sell it at considerable cost). This test misses a certain (significant)percentage of mutations on those genes that can also cause breast cancer. But no other company can develop a test for other mutations on those genes without violating the patent.

      That means they havent patented the actual sequence of those genes, they've patented the LOCATION of those genes, or even the "idea" of those genes.

      This pisses me off to no end. I'm seriously going to go unibomber on these motherfuckers one day. I just know it.

    • mjg59 says:

      well yeah, they do copyright DNA sequences. proprietary potatoes.

      No. No, they don't.

      For something to be copyrightable, there has to be some creative element involved. Useful DNA sequences generally exist in nature, hence they're not copyrightable. If you independently produce a DNA sequence that somebody else claims copyright over, that's still not a problem - copyright law doesn't prohibit you from coming up with something identical, it prohibits you from copying an existing item that is already copyrighted.

      So, the only possible way for a DNA sequence to be copyrighted is if it's created by someone, rather than just being found in an existing genome. If someone does create a useful sequence of DNA, do you believe that should be any less copyrightable than a useful sequence of, say, letters or code or dots of paint?

      Of course, none of that really matters, because people don't copyright DNA sequences. They patent them. However, a patent doesn't protect a specific sequence. It protects a given application of a given sequence. Myriad's patents related to breast cancer genes don't patent the gene. They cover various therapeutic uses of the gene - diagnostic tests, possible treatments, that kind of thing. Is there a huge difference between patenting a mechanism for testing if a gene is present and patenting a mechanism for testing if a tumour is present?

      In reality, companies discover genes and then file patents covering pretty much every conceivable use of that gene. They'd do that in other areas if they could. It's gross abuse of the patent system, it's entirely immoral and it's what companies do. It's indicative of a more general failure of the patent system. "Proprietary potatoes" are a symptom, not a cause. Complaining about copyrighted sequences or patented genes won't do anything to help.

      I work with people who hold patents on the use of genetically modified bacteria to clean up explosives from warzones. Do you think their invention is any useful or innovative than, say, a patent on a chemical that performed the same task?

  2. ammonoid says:

    "Why do you think the History Channel is what it is? Why do you think it's all World War II documentaries? It's because it's public-domain footage.

    Now it all makes sense...Hitler channel indeed.

  3. boggyb says:

    Here over in .uk the BBC is going to open up its back collection for free non-commercial usage. Which makes sense, as its charter is based around making their stuff available to as many people as possible.

  4. scosol says:

    surely there must be some way around *this* nonsense...

    just like the crypto code that had to be exported from the US, written down on pieces of paper...

  5. mark242 says:

    I suspect that within the next 5 to 10 years, we're going to see a lot of "pirate" filmmakers sampling this sort of thing and then releasing their work over them Internets. With iMovie and a cheap way to sample video there will be loads of people putting together movies much the same way we see the ever-popular Flash animations today.

    • Hooray! Then the single-digit percentage of the world population with access to a computer will be able to see them, and maybe a single-digit percent of that single-digit percent will look for them! Vive la revolucion!

      • jwz says:

        And what percentage of the world population do you reckon currently watch studio-endorsed documentaries?

        • I forgot that people not on the Interweb are all idiots. Please, forgive me.

          • jwz says:

            Um, what?

            • Were you implying something else? Were you saying that the levels of access to broadband connections and traditional media delivery technologies are comparable or something? Because it basically sounded like "well, people don't watch documentaries now (the ignorant peasants!) so does it really matter if they're only available on the Internet to those who know to look for them?". The question isn't whether or not people choose to watch them, it's whether or not they have a choice. The Web is an exclusive medium, there are significant barriers to entry, it's not a force for social change, it's a particle physics documemtation system that got repurposed for shifting porn, DVDs, and collectible Pez dispensers.

              (And cue some digerati twat informing me that either a) the entire world can now connect through the repurposed Iridium network, if they want to, or b) all the important people are connected, so change for the better is bound to occur.)

              • jwz says:

                You didn't answer my question. Before you bitch about how small a percentage of people would have access to internet-distributed documentaries, tell me what percentage of people you figure have access to those documentaries now.

                Because you know what? I don't think they get the History Channel in Somalia.

                But maybe I'm confused about which Struggling Masses, exactly, you figure would be marginalized by not having access to this particular brand of infotainment. Your panties are in a bunch over this idea why exactly?

                • I have no idea what the percentages are. But it's ridiculous to compare the two delivery methods. Even in the US, whatever percentage of the population have access to an net connection fast enough to make downloading video worthwhile, that perentage is dwarfed by the near-total penetration of television. Also, people's attitudes towards the two media are different. People seek things out on the Web or on p2p networks. Push technologies basically failed. People browse television, and are more likely to happen across worthwhile content (though TV in the US is caught up in a race to the bottom that invalidates that point a bit).

                  And that skew towards TV is only going to grow when you look outside the US. The equipment costs a lot more. It's easier to build a broadcast network than a communications network. Blah blah blah etc. This is pretty elementary stuff.

                  I suppose I freaked out a bit, basically because I'm sick of people who think that their Flash animations and blog meetups are going to win elections, or who think that clicking on a banner is going to solve world hunger. Someone smugly prattling on about how it'll all go underground, man, and their only retort being to call me a luddite and namecheck some online toon company whose main source of revenue is traditional media corporations, that'll set me off.

                  • nothings says:

                    Note that that page never ANYWHERE says "web viewing has increased by X and TV viewing has decreased by Y".

                    Every single statistic about "TV viewing has decreased" says "amongst web users" or "for people with broadband" or such-like (not actual quotes).

                    Almost all the statistics are about growth, not about total users or users as a percent of users. You have to go the second to last paragraph to get any actual stats you might try to make a comparison from:

                    ...broadband [is] predicted to grow from 19% to 37% of households by 2009

                    So, since they don't give us any actual numbers, are situation is: 20% of households have broadband, and, we'll guess, 100% of households have TV. (That's not accurate--I don't have TV, but I'm also rounding to nice percentages.) Who this is, I don't know, I assume all of Europe.

                    So, we have a ratio right off of 5:1. So zenmonkeykstop is asserting that you have an access ratio of 1:5. That's not the "single-digit" percentage he was talking about originally. Of course, we also have a statistic, "In homes with broadband, 40% said they were spending less time watching TV", so if arbitrarily (and probably bogusly) guess that only the 40% of 20% who are actually watching less TV are the nominated "people who will watch video over the net instead of TV", we have 8%, which is single-digit.

                  • valacosa says:

                    "...though TV in the US is caught up in a race to the bottom..."

                    To me, all of your posts on this thread read as follows: "Look at me! I'm trying to appear to be socially aware by pouncing on an imaginary implication! I am the defender of the teeming masses, never mind the fact I criticize what they watch on TV! I care about world change, never mind my America-centric views!"

                    You have yet to refute JWZ's actual point: there is a small number of people who have both the ability and the willingness to go out of their way to watch documentaries. I would wager that number would be dwarfed by the number of people downloading movies via p2p.

              • joel says:

                In some places, "The Web" is no more exclusive than TV.

                I spent the summer working for an ISP in east Africa. You could count the number of local television stations on one hand. The cost of getting satellite television was not very far from the cost of an internet connection.

                Everybody I knew there had a small library of burned movies and software. I would walk through a lab at the college and see groups of people clustered around a lab computer playing a recently pirated movie. This college wasn't a college for the upper class either. Most of the students that I met were from the working class, their tuition paid by the government.

                So while your argument might hold true in America, I'm not so sure it applies everywhere.

      • mark242 says:

        Hooray for shortsighted luddism! I'll bet the guys at JibJab totally agree with you.

      • king_mob says:

        Easy there, Che Guevera. As of 2002, 580 million people had Internet access. World population around six and a half billion, right? So around nine percent. This is assuming that no new people have gotten Internet access since 2002, which I doubt.

    • pavel_lishin says:

      Except how many people do you think will be interested in compiling entire documentaries to broadcast online? I doubt we'd get the same caliber stuff as we get on Hitler Channel. And real film-makers couldn't possibly use the stolen material as it would be, well, stolen.

      It's not like they don't have access to it. They just can't re-broadcast it without breaking too many laws.

      Then again, the rotten library is an interesting source of information, and it's all free... who knows.

  6. jayrtfm says:

    A couple of years ago I saw Debora Duerksen's film "We Were In It Too" which is a documentary on Jewish Female WWII veterans. She said that one problem she started to encounter in producing the film was in obtaining German produced film footage. Seems that after WWII footage was put into the public domain for a period of 50 years. Since the 50 years are up, and the Sonny Bono influenced copyright laws have extended the copyright, the films have reverted back to being under the control of the original German companies who produced them.
    Do ya think they are happy to release the rights for a reasonable fee?

    So here's a case of copyright law being used to hide films of Nazi atrocities.

    • fo0bar says:

      Godwin's Law only applies if you do not acknowledge its invocation while invoking it.

      AKA, "The first rule of Godwin's Law is you do not talk about Godwin's Law."

    • tfofurn says:

      Not to start a Godwin's Law thread, but I would think you'd have to compare on e of the participants in the discussion to Nazis before it would be relevant.

      But I digress. I'm floored by the notion of temporary designation of public domain. That scarcely seems possible to me: "reuse it all you like, but not after X". So all of the derivative works become restricted? Or the derivative work has to have existed by the expiration of the public domain period? Most perplexing.

    • king_mob says:

      Since the 50 years are up, and the Sonny Bono influenced copyright laws have extended the copyright

      I find myself idly wondering if they have ski slopes in Hell. And trees.

    • jwz says:

      "Public domain for a limited time" is nonsensical. Public domain means "not controlled by copyright." If they retained enough rights to take it back, then it was never in the public domain to begin with.

      • jayrtfm says:

        You're probably right, as "public domain" was the term the filmmaker used. Having the footage freely useable for 50 years was due to a war reparations settlement.

        I just tried googling for more info, no luck so far. I'm going to try to get details and will eventually post a webpage about this.

  7. jlindquist says:

    We would do well to remember this and toss it at our legislators (particularly members of the Congressional Black Caucus) the next time a Mickey Mouse bill comes up...

  8. mysticknyght says:

    it's not just documentary makers, but authors as well. When I did my book on New Orleans' streetcars in 2003, one of my first stops was a private historical collection. They had about 25 really lovely photos I wanted to use, but they wanted $100 apiece for the rights. Since I needed about 200 photos for the book there was no way I could afford to shell out $2500 for one-tenth of the project.

  9. substitute says:

    All of MLK's sermons and speeches are archived at Stanford and available on the web only in locked Acrobat PDF files that cannot be printed and save to the hard drive in a nearly unusable format. Visitors are advised to contact the copyright holder if they actually want to use any of this material for anything at all, really.

  10. pavel_lishin says:

    This reminds me of Snow Crash, and the CIC.

  11. autopope says:

    Was chatting to <lj user="wendyg"> yesterday and she mentioned that she'd just been to a garden centre, here in the UK, where lots of the potted plants came with stern warnings that the purchaser did not have the legal right to propagate or pollenate from the plants, that doing so was a violation of the plant breeder's intellectual property rights, and that illegal plant pirates would be prosecuted.

    I am not making this up.

    • mjg59 says:

      You know, I was utterly, utterly shocked to discover that someone tried to sell me a trivial piece of software (something I could knock up in 5 minutes) that was under a license that didn't let me make any further copies, improve the software myself or sell it to other people. It even tried to tell me I could only run it on certain operating systems, forbid me from using it in a nuclear power station and told me that I lost all rights to use the software if I said rude things about the author.

      Plant breeding contains as much creative labour as much software engineering. Why do you think the two situations are massively different?

      (Note: I'm not trying to defend control of people's use of plants, here. But it doesn't upset me any more than stupid software licenses.)

      • taffer says:

        Possibly the fact that the plants can often "copy" themselves without intervention.

        Read a bit of the Monsanto stupidity that jwz linked to above; they're suing the living shit out of farmers who have "stolen" their patented genetically engineered plants by being down-wind of a field growing those plants.

        • mjg59 says:

          They've done that once, and they effectively lost (their patent rights were upheld, but the owner of the land was not deemed to have benefited commercially and so owed Monsanto nothing). Personally, I think that's a fairly crap result - people shouldn't be liable for unknowingly infringing patents in that way. But judges make bad decisions sometimes. This isn't really news.

          Where Monsanto have been successful is in cases where they've demonstrated that farmers knowingly grew their seeds without paying the license fee. Unsurprisingly, big evil companies tend to sue people when they deliberately breach their licenses.

  12. hatter says:

    Kindly excuse the temporary glitch, image capture technology will catch up shortly, as the ability for everyone to film the world around them and share it becomes almost ubiquitous. The public will be on the scene before the media even know there's a scene, it'll no longer be one lucky person filming jfk getting shot, or half a dozen people who happen to be standing around with camcorders as planes ploughing into skyscrapers.

    Time passes (the famous mouse aside) and eventually the missing era will drop into the public domain.

    the hatter

    • wfaulk says:

      There were three other people in Dallas whose movie cameras captured the assassination; Zapruder's is just the clearest and most well known.

      Also, anyone know what the licensing fee on the Zapruder film is these days? (I know there is one, but don't know how much.) How about for the WTC crash videos? (Don't know if there are fees for those.)

      • hatter says:

        Ah, you make clear part of my point that I'd considered, but maybe didn't put down very clearly - that as the number of bits of footage increases, it'll become decreasingly likely that the rights to all of them will be sold off to corporations to lock away in vaults. So the best footage may still be, but lower quality versions will be available, and that may even dilute the value/cost of using the better footage. The other jfk assassination tapes may well show that there are more affordable options (though quite possibly not freely distributable)

        Amateurs will no doubt become more aware of the options in managing their IP, rather than selling their rights entirely, in perpetuity.

  13. ultranurd says:

    Are we going to have to de-specialize as a society and become our own content producers?