Copyright vs. Creativity

At the sixteenth pole, Go for Wand was in front by a head. The race between the three-year-old filly and the elder Bayakoa was among the most anticipated of the 1990 Breeders' Cup, and the horses hadn't disappointed. For more than one and a half kilometers, they were side by side. Yet nobody could have predicted how the race would be won. Close enough to the finish line to taste victory, Go for Wand broke a front leg and

fell, throwing off jockey Randy Romero head first. Not ready to concede, however, the horse leapt back up and tried to finish

the race on her three good legs. She was quickly stopped and eventually euthanized only a few meters from the 50,000 spectators. Bayakoa was declared the winner by 6 3/4 lengths.

NBC captured the tragedy on national television and the network still holds the U.S. domestic rights for the footage, which N.Y.-based filmmakers Kate Davis and David Heilbroner of Q-Ball Productions asked to license for their 2004 Emmy-winning film Jockey. The HBO-commissioned doc goes behind the colorful silks of three riders, Romero among them, to look at how the demands of the job effect their lives. "We wanted to license that clip not because it was sensational, but because it was a pivotal moment in Randy's career," says Heilbroner.

HBO has deep pockets, so it could afford what NBC demanded for the clip, which was roughly the cost equivalent of a 2005 Volkswagen Jetta. Money also wasn't an issue when it came to clearing the foreign rights with the Breeders' Cup - the group simply refused to license the clip if the filmmakers intended to include footage of the accident.

It's understandable why the Cup would rather forget such a horrific event, but Heilbroner bristled at the attempt to edit history. And while he eventually succeeded in securing the unfettered rights, the confrontation continues to bother him. "Theoretically, if they owned both foreign and U.S. rights, they could make this moment disappear. This is the nature of copyright," he says.

The incident illustrates the multiple frustrations filmmakers are dealing with more and more frequently when trying to access third-party content. Call any doc-maker and chances are they'll have a litany of tales about receiving exorbitant cost quotes, trying to track down elusive copyright holders, or being denied the right to quote works altogether. The impact on the documentary genre is both creative and financial, and the general consensus is that while the situation around copyright clearance (especially in the lawsuit-happy U.S.) has degraded over the past two decades, things are only going to get worse.

Not everyone is willing to accept such a fate. Considering the alternative, efforts are already underway to find solutions to the most pressing problems - the key one being the rising cost of clearing rights. In a study by American University titled "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers," researchers came to the same conclusions as those above: clearance costs are high and

the process is arduous. In response, it recommends developing a statement of best practices so that filmmakers can take better advantage of 'fair use.'

Fair use is a limitation on copyright protection in the U.S. (a similar defense called 'fair dealing' exists in the U.K.) that allows people to use copyrighted material for the purposes of comment, criticism, news reporting, teaching,

or scholarship and research without securing permission or paying a fee. But the line between what qualifies and what doesn't isn't well defined. Consequently, producers and gatekeepers generally hesitate to invoke fair use as a defense.

"We never say fair use to an underwriter. Ever," says Debra Kozee, president of C&S International Insurance Brokers in New York. "Fair use is a defense and underwriters don't want to get to the point where they're defending a claim."

Kozee adds that even if a producer hires a lawyer who successfully convinces an insurer's attorneys that a use qualifies as fair and there's no risk of a lawsuit, there will likely be a specific exclusion in the final Errors & Omissions policy for the item in question. "The underwriters are not looking at it from the position of is it right or wrong legally - is it really fair use," says Kozee. "They're looking at, 'What are the possibilities of someone claiming against us?' whether or not it's legitimate."

Peter Jaszi and Patricia Aufderheide, the principle investigators behind "Untold Stories," contend that a statement of best practices generated by the factual film community would substantially minimize the possibility of

a claim. "When a court considers fair use, their inquiry often devolves into whether or not the practice in question was undertaken in good faith and was reasonable," explains Jaszi. "Well, what defines good faith? What defines reasonable?

"We believe that if there's a clear, relatively detailed statement of best practices from filmmakers, content owners will be even less likely than today - and that's pretty unlikely - to bring lawsuits. The last thing any content owner wants to do to bring a case against a user and lose. That makes a precedent." The existence of such a statement, then, would hopefully have a ripple effect, encouraging filmmakers to utilize fair use, and convincing broadcasters and insurers to accept it.

As filmmakers are both content users and content creators, Jaszi says, reaching a consensus won't be easy. However, the duo is hoping to help doc-makers generate best practice guidelines by November. Several major organizations have agreed to help them meet that target and publicize the results, including the International Documentary Association (IDA) in l.a. and the National Alliance for Media Arts and Culture (NAMAC) in San Francisco. "It makes sense to start with a code," adds Aufderheide. "Until then, you don't have anything that changes the environment, you're just putting out fires."