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Special Reports

Copyright vs. Creativity

Many in the factual film community warn that the current rights clearance culture in the u.s. is not only making certain films obsolete, it's eroding the public domain and jeopardizing the right to comment, criticize, quote and create. It's also cutting into the bottom line, as license fees fail to keep pace with the cost of clearing rights. But it's not all doom and gloom. People are fighting back, and solutions are already in the works. Kimberley Brown reports.
by: Kimberley Brown Jun 1, 2005

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

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