The Anti-Commons in Filmmaking

> http://onthecommons.org/node/429
> http://centerforsocialmedia.org/rock/index.htm
> http://centerforsocialmedia.org/rock/finalreport.htm

-------- Original Message --------
Subject: [Broadcast-discuss] The Problem of the Anti-Commons in
Filmmaking
Date: Thu, 02 Dec 2004 23:14:42 -0500
From: David Tannenbaum <[email protected]>
To: [email protected]

== The Problem of the Anti-Commons in Filmmaking ==
   http://onthecommons.org/node/429
   (from On The Commons -)

Economists like to say that property rights are needed to foster
innovation.  But the evidence is piling up in one field after
another that property rights have gotten so extensive that they
are choking new creativity.  The latest example comes from the
world of filmmaking. A new report by Patricia Aufderheide and
Peter Jaszi of American University documents how the rights
clearance process is crippling the creativity of documentary
filmmakers.  The report – "Untold Stories:  Creative Consequences
of Rights Clearance Culture for Documentary Filmmakers" – draws
upon interviews with 45 directors, editors and producers.  The
report finds that filmmakers must often make significant changes
in their work because of the costs or complications of rights
clearances. (A short film, available online, also explains the
problems described in the report.)

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---


> http://onthecommons.org/node/429


The Problem of the Anti-Commons in Filmmaking

Posted by David Bollier on Mon, 11/22/2004 - 1:50pm


Economists like to say that property rights are needed to foster
innovation.  But the evidence is piling up in one field after
another that property rights have gotten so extensive that they
are choking new creativity.  The latest example comes from the
world of filmmaking.

A new report by Patricia Aufderheide and Peter Jaszi of American
University documents how the rights clearance process is
crippling the creativity of documentary filmmakers.  The report
-- "Untold Stories:  Creative Consequences of Rights Clearance
Culture for Documentary Filmmakers"
(http://centerforsocialmedia.org/rock/index.htm) -- draws upon
interviews with 45 directors, editors and producers.  The report
finds that filmmakers must often make significant changes in
their work because of the costs or complications of rights
clearances.  (A short film, available online
(http://147.9.204.26/quicktime/storiesuntolddsl.mov), also
explains the problems described in the report.)

For example, it's common for film studios, photo archives, record
labels and music publishers to deny a requested use of a work or
to charge exorbitant fees.   What makes this galling is that
sometimes the "right" is stupidly trivial -- a trademarked logo
on someone's clothing in the film, or radio music or television
images playing in the background of a scene.  Here are some
examples of clearance problems encountered by filmmakers:

  - NBC refused to license a video clip of President Bush making
a public address; filmmaker Robert Greenwald speculates that
permission was denied to him because NBC did not want to appear
to be associated with a political film.

  - Filmmaker David Van Taylor wanted to use a clip of a campaign
rally for Oliver North, who once ran for the Senate.  But because
the clip included someone singing "God Bless America," a song
owned by the estate of Irving Berlin, Taylor had to pay a
substantial fee.

  - In a pivotal scene of Hoop Dreams, Peter Gilbert's celebrated
film about inner-city basketball players, there is a scene with
the singing of "Happy Birthday."  It cost Taylor $15,000 to
$20,000 to use just one verse of "Happy Birthday."

These kinds of expenses and hassles represent a huge drag on the
creative process.  The situation brings to mind the "tragedy of
the anti-commons" described a few years ago by Michael Heller and
Rebecca Eisenberg in a seminal Science magazine article
(http://www.sciencemag.org/cgi/content/full/280/5364/698).

An "anti-commons" describes a situation in which a resource is
seriously under-used because "multiple owners each have a right
to exclude others -- and no one has an effective privilege of
use."  Scientists seeking to develop a malaria vaccine simply
can't pursue certain research avenues, for example, because they
don't have the money or time to clear patent rights on dozens of
research tools.  So it is that the "freedom" of the free market
can be transformed into the un-freedom of the "permissions
culture.

---

> http://centerforsocialmedia.org/rock/index.htm


Untold Stories: Creative Consequences of the Rights Clearance
Culture for Documentary Filmmakers
By Pat Aufderheide and Peter Jaszi

The Study
The problems that documentary filmmakers face in getting and
controlling rights for their creative work--and the consequences
for cultural creativity--are the focus of this research project
funded by the Rockefeller Foundation. 

Watch a short video by Brigid Maher that helps frame the final
report issues! "Stories Untold" (Quicktime plugin required)

The study explores the implications of the current terms of
rights acquisition on the creative process of documentary
filmmaking in today's marketplace, and from them makes
recommendations to lower costs and promote creativity. It focuses
on the lived experience of independent documentary filmmakers who
work primarily within a broadcast environment (sometimes with a
theatrical “window”), in coping with the creative challenges
created by acquiring and granting rights. Click here to read
Untold Stories
(http://centerforsocialmedia.org/rock/finalreport.htm).

Independent documentary filmmakers were selected because their
work regularly requires them to interact with a wide variety of
rights holders, from archives for photographs and stock footage
to musical performers to other filmmakers. This is especially
clear when it is a historical documentary or one that comments on
commercial popular culture, but it is an issue for most
documentary filmmakers, no matter what the subject matter. When a
trademark appears on a baseball cap, or a subject happens to be
watching television, or a radio in the background plays a popular
song, or a subject sings “Happy Birthday,” rights clearance
becomes a professional and creative challenge. 

The Center for Social Media at American University and the
Program on Intellectual Property and the Public Interest (PIPPI)
at the Washington College of Law have conducted this year-long
research project. Pat Aufderheide, a longtime critic and scholar
of independent media and director of the Center for Social Media,
and law professor Peter Jaszi, who heads PIPPI, supervised the
project. 

This project was funded by the Rockefeller Foundation.

---

> http://centerforsocialmedia.org/rock/finalreport.htm


Untold Stories: Creative Consequences of the Rights Clearance
Culture for Documentary Filmmakers 


By Pat Aufderheide and Peter Jaszi

Executive Summary

This study explores the implications of the rights clearance
process on documentary filmmaking, and makes recommendations to
lower costs, reduce frustration, and promote creativity. It
focuses on the creative experience of independent, professional
documentary filmmakers. 

FINDINGS

Rights clearance costs are high, and have escalated dramatically
in the last two decades.

Gatekeepers, such as distributors and insurers, enforce rigid and
high-bar rights clearance expectations

The rights clearance process is arduous and frustrating,
especially around movies and music.

Rights clearance problems force filmmakers to make changes that
adversely affect—and limit the public’s access to--their work,
and the result is significant change in documentary practice.

Filmmakers, while sometimes seeing themselves as hostages of the
“clearance culture,” also are creators of it. 

Filmmakers nonetheless exercise fair use, and imagine a more
rational rights environment.

RECOMMENDATIONS 

Make the most of fair use:

• Develop and disseminate models of “best practices” ;
• Establish one or more “legal resource centers” to support
filmmakers. 

Facilitate the clearance process:

• Establish a non-profit rights clearinghouse;
• Work for legislation on orphan works.

Build greater awareness of filmmakers’ use rights:

• Facilitate filmmaker access to sound pre-production legal
advice;
• Develop learning materials -to provide a balanced general
account of intellectual property, for filmmakers and film
students;
• Educate gatekeepers about creators’ use rights.

<  SNIP -- 93K document >