As Americans commemorate Martin Luther King Jr. and his legacy today, no television channel will be broadcasting the documentary series Eyes on the Prize. Produced in the 1980s and widely considered the most important encapsulation of the American civil-rights movement on video, the documentary series can no longer be broadcast or sold anywhere.
Why?
The makers of the series no longer have permission for the archival footage they previously used of such key events as the historic protest marches or the confrontations with Southern police. Given E yes on the Prize's tight budget, typical of any documentary, its filmmakers could barely afford the minimum five-year rights for use of the clips. That permission has long since expired, and the $250,000 to $500,000 needed to clear the numerous copyrights involved is proving too expensive.
This is particularly dire now, because VHS copies of the series used in countless school curriculums are deteriorating beyond rehabilitation. With no new copies allowed to go on sale, "the whole thing, for all practical purposes, no longer exists," says Jon Else, a California-based filmmaker who helped produce and shoot the series and who also teaches at the Graduate School of Journalism of the University of California, Berkeley.
Securing copyright clearances isn't just a problem for the makers of Eyes on the Prize. It's a constant, often insurmountable hurdle for documentary filmmakers and even for writers wanting to reproduce, say, copyrighted pictures or song lyrics in their work.
But it's particularly difficult for any documentary-makers relying on old news footage, snippets of Hollywood movies or popular music -- the very essence of contemporary culture -- to tell their stories. Each minute of copyrighted film can cost thousands of dollars. Each still photo, which might appear in a documentary for mere seconds, can run into the hundreds of dollars. And costs have been rising steeply, as film archives, stock photo houses and music publishers realize they are sitting on a treasure trove, Else and other filmmakers say.
"The owners of the libraries, which are now increasingly under corporate consolidation, see this as a ready source of income," Else says. "It has turned our history into a commodity. They might as well be selling underwear or gasoline."
And there's another catch: tighter legal restrictions.
Copyright legislation has grown stricter in recent years to protect media owners from digital piracy.
Broadcasters and film distributors, in turn, have become more stringent in making sure they are legally covered, too. As illustrated in a recent study by the American University in Washington, which interviewed dozens of documentary-makers on the myriad problems of getting copyright clearances, broadcasters and film distributors insist that a documentary have what is known as errors and omissions insurance, to protect against copyright infringement. Of course to get it, all copyrights in the documentary have to be cleared anyway.
It's enough of a legal rigmarole to make underfunded filmmakers simply avoid using archival clips altogether or to remove footage that they shot themselves that might include someone singing a popular hit or even Happy Birthday to You (a copyrighted song).
It also means that films like Eyes on the Prize, made in a less restrictive era of copyright rules, can simply fade away if the task of renewing copyrights becomes too difficult or costly.
"What seems on the face of it a very arcane, bureaucratic piece of copyright law, and the arcane part of insurance practice, suddenly results in the disappearance of the only video history of the American civil-rights movement . . . slowly and without anyone noticing it," says Else.
Ironically, the growing popularity of documentary films these days is only making things worse.
The explosion of digital channels, the DVD market and even the use of documentary footage on the Internet have created a new level of success for documentaries, explains veteran National Film Board producer Gerry Flahive. But "suddenly for people who have companies that own stock-footage collections, the material is more valuable. So it has become more expensive."
