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  • From: Carrie McLaren < AT>
  • To: stayfree AT
  • Subject: Stay F---! | December 21
  • Date: Mon, 20 Dec 2004 20:31:47 -0500

Posted online at:

This week, two important links for fans of documentary films (and "illegal art"):

The Center for the Study of the Public Domain at Duke University has selected eight short films as finalists in its Moving Image Contest and posted them online. The films aim to show "some of the tensions between art and intellectual property law," focusing either on music or documentary film:

My vote goes to Christopher Sims' "An Army, One by One" for its simplicity and clarity of message. In fact, this short makes the perfect lead-in for "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers," a report from the Center for Social Media on how our ever-expanding "culture of ownership" is handicapping documentary filmmakers:

Authors Pat Aufderheide and Peter Jaszi interviewed 45 filmmakers about the problems they've encountered in securing rights to music, historical footage, and other so-called intellectual property. The discussion includes some revealing anecdotes:

* Any time people featured in a film start singing a song, documentarians should open their wallets. The makers of THE PERFECT CANDIDATE (a documentary about Oliver North's run for Senate) had to pay $3,000 to include a scene where a woman sang "God Bless America" at a campaign rally. And that's nothing. AOL Time Warner, which owns the rights to "Happy Birthday," charges $15,000-$20,000 for one verse of the song. Filmmakers who can't afford to pay or risk legal conflicts end up cutting out scenes altogether, as Linda Goode Bryant did when the principal subject in FLAG WARS (a documentary about the clash in a gentrifying area between African Americans and newly arrived gays and lesbians) starting singing along with the radio.

* Sometimes rights owners require a "most favored nation clause" in the licensing agreements, which guarantees the rights owner the highest price the filmmaker can pay. In other words, if Capitol quotes the filmmaker $3,000 to use an old Johnny Mercer song, and the filmmaker also licenses a Looney Tunes clip from Warner Brothers for $5,000, then the filmmaker will automatically have to pay Capitol $5,000, too. As Jeff Tuchman describes it, "It's like going to go the grocery store and pinching your pennies and using your coupons, and then the last thing you buy is a steak for $20, and then every soda and bag of M&Ms you bought suddenly costs $20."

* Directors often avoid shooting in places where background music is playing so that they don't have to worry about clearing the rights. For example: when making her film LITTLE PEOPLE, Jan Krawitz stopped shooting dwarf children exercising in gym class when the instructor played "YMCA."

Reading this stuff, you get the idea that producer Katy Chevigny is right when she tells aspiring filmmakers that "the only film you can make for cheap and not have to worry about rights clearance is about your grandma, yourself, or your dog."

But then there are people like Jeff Krulik (Heavy Metal Parking Lot series) who aggressively exercise "fair use" and use many short clips in their films without licensing. On the downside, they can't get distribution. Krulik, for example, is limited to posting his film HITLER'S HAT online and screening it at festivals and independent venues. But I can't help rooting for this route, for a number of reasons: it strengthens fair use, results in much better films, and ultimately encourages people to find new ways to get their films out (Keep in mind that there's no law saying it's wrong.)...which reminds me:

Though the report includes many fine recommendations for solving some of the documentarians' problems, it could use a positive word about alternative distribution methods. MoveOn's success in distributing Robert Greenwald's UNCOVERED and OUTFOXED through house parties is one example of films finding an audience with the mass media machine. And, of course, there's always the internet. So on that note:

(Thanks to David Glenn.)

* * *

In other news, this man has a good idea:

("Defending artist's rights through preemptive litigation prevention")

  • Stay F---! | December 21, Carrie McLaren, 12/20/2004

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