While I Still Spend A Lot Of Money and Time on Technology, I Spend More on Trying to Acquire Rights to Footage that Doesn't Bust My Budget
Remember when low-cost HD cameras were $60,000 and cheap HD editing systems ran $150,000? With genuinely (if not universally) useful HD tools now available for less than a tenth of those prices, some corporate clients and a couple of commissioning editors seem to think dive-bombing equipment prices translates directly into smaller budgets.
But the cost of equipment hasn’t hindered production for quite a while now. While I still spend a lot of money paying for and time struggling with technology, I spend more of both trying to acquire rights to images and footage I want to use in my personal and corporate work.
I’m making a short documentary about a musical device from the 1970s called the Gizmo (aka, the Gizmotron) that was invented by Kevin Godley and Lol Creme of the English band 10cc. The visual record is scant and elusive, but I’ve tracked down several promising clips. In one, Godley and Creme show their device to the host of an old Australian pop-music series called Countdown.
A fan of the band sent me a consumer-quality copy of the interview. With enough effort, I can make the footage usable, but I still need to secure the rights and I wouldn’t mind having a better-quality copy to work with. So I tracked down the owner of the footage, the Australian Broadcasting Company, which can get me a copy of the interview dubbed to Digital Betacam. However, acquiring limited rights to this footage-which no one in their right mind would want and therefore ABC Down Under may never sell again-will cost me several thousand dollars.
The same goes for footage that first aired on the BBC and other broadcast outlets; it’s a few thousand dollars for every archival broadcast clip. At that rate, it really adds up. The documentary I’m working on has less revenue potential than barbwire dental floss, so unless I raise a lot more money, I’ll make editorial decisions based on the cost of footage. I may not be able to tell the story the way I want, and the content owners won’t make a sale.
This is hardly a unique situation; I can supply dozens more examples from my own work. And I’m willing to pay a fair fee for footage that I need to tell a story. But that’s all just price-value disagreements. There are worse examples.
Goodbye Fair Use?
Filmmaker Jon Else tells a story about a scene in his documentary Sing Faster, a look at Wagner’s Ring Cycle operas through the eyes of stagehands. In one shot the stagehands play checkers and chat while an episode of The Simpsons plays on a small television far in the background. The TV screen is small and the shot runs less than five seconds.
Else tried to clear rights to the footage on the screen. He contacted Simpsons creator Matt Groening, who approved use of the shot but said Else should also check with Gracie Films and Fox. Fox wanted a $10,000 licensing fee. That was the discounted rate for documentaries. Rather than pay money that he didn’t have, Else composited some footage he owned over The Simpsons footage on the television.
I’ve heard Else tell this story a couple of times. Each time someone listening asks why he didn’t just follow the fair use doctrine. And I’ve had many discussions with other producers and writers about fair use. Some think fair use is a well-defined and accepted means of using copyrighted work for criticism, news reporting, commentary or research. Alas, here’s what the U.S. Copyright Office has to say: "The distinction between fair use and infringement may be unclear and not easily defined."
Media companies may want to define that distinction through a lawsuit. My lawyers have made clear that if a big media company sues you for infringement, then you’ve already lost. I can’t afford to successfully defend such a suit, let alone lose one. Not that the E&O carriers or corporate-client lawyers would let it get that far; if it isn’t cleared, it’s not in the final cut.
So what about work that’s in the public domain? While there is some great work available that’s not covered by copyright, the public domain is shrinking. And it can take some work to ensure that film and video that seems to be in the public domain actually is.
It’s not a matter of wanting to use other people’s property for free. Everyone reading Studio/monthly makes their living through visual media and intellectual property. I rarely give away the footage I own. Not all copyright holders try to charge what Fox wanted from Else. Companies such as Artbeats sell great royalty-free footage for fair prices. But copyright and clearance issues make our jobs tougher and affect the stories we choose to tell-and clients need to remember that.
Write Jim at email@example.com