October 16, 2005
by NANCY RAMSEY
THE moment seemed innocuous enough.
Michael Vaccaro, a fourth grader, had just left P.S. 112 in Brooklyn and was headed home with his mother. Two filmmakers were in front of him, their camera capturing his every movement on video, when his mother's cellphone rang.
"It was such an indicator of today's culture," said Amy Sewell, a producer of "Mad Hot Ballroom," the documentary that follows New York City children as they learn ballroom dancing and prepare for a citywide contest. "Michael's mom had just asked him how school was, her cellphone rings, she answers it, and the look on his face says, 'I don't get to tell my mom about my day.' "
In addition, the ringtone was "Gonna Fly Now," the theme from "Rocky," and the neighborhood was Bensonhurst. "How perfect was that?" Ms. Sewell said.
Perfect, but a problem. Had the ringtone been a common telephone ring, the scene could have dropped into the final edit without a hitch, the moment providing a quick bit of emotional texture to the film. But EMI Music Publishing, which owns the rights to "Gonna Fly Now," was asking the first-time producer for $10,000 to use those six seconds.
Ms. Sewell considered relying on fair use, the aspect of copyright law that allows the unlicensed use of material when the public benefit significantly outweighs the costs or losses to the copyright owner. But her lawyer advised against it. "I'm a real Norma Rae-type personality," Ms. Sewell said, "but the lawyer said, 'Honestly, for your first film, you don't have enough money to fight the music industry.' " After four months of negotiating - "I begged and begged," Ms. Sewell said - she ended up paying EMI $2,500. (Total music clearance costs for "Mad Hot Ballroom," which featured songs of Frank Sinatra and Peggy Lee, came to $170,000; total costs over all were about $500,000.)
Today, anyone armed with a video camera and movie-editing software can make a documentary. But can everyone afford to make it legally?
Clearance costs - licensing fees paid to copyright holders for permission to use material like music, archival photographs and film and news clips - can send expenses for filmmakers soaring into the hundreds of thousands of dollars. Jonathan Caouette's "Tarnation," for instance - a portrait of a young man's relationship with his mentally ill mother that Mr. Caouette edited at home, on a laptop computer - was widely reported to have cost $218. In fact, after a distributor picked up "Tarnation," improved the quality with post-production editing and cleared music rights, the real cost came to more than $460,000. Clearance expenses were about half the total.
Securing rights to music has long been a serious challenge. Ten years ago, for instance, the filmmaker Steve James paid $5,000 to include the song "Happy Birthday" in "Hoop Dreams," the 1994 documentary that followed two Chicago basketball players through high school. One memorable scene portrayed a young man's 18th birthday, as the family sang "and his mom baked him a cake," Mr. James said. "It was an important scene, there was some amazement that Arthur had made it to 18. Of course, we wanted that in."
Scrutiny by rights holders has increased, Mr. James said, as the profit potential in documentaries has risen. "When I was starting out, documentaries were under the umbrella of journalism," he said. "Now, the more commercially successful documentaries have become and the more they're in the public eye, the more they're perceived as entertainment."
In another change, said Peter Jaszi, a law professor at American University, "rights holders are slicing their bundle of rights in finer and finer ways and selling them off in smaller and smaller pieces." He asked: "Would music copyright owners 10 years ago have predicted they'd be making a substantial part of their money over ringtones on cellphones?" (It's now a reported $3 billion industry.) As a result, he said, there's been "a tremendous upsurge in intellectual property consciousness and anxiety on the part of all kinds of users."
Mr. Jaszi is an author, with Patricia Aufderheide, the director of American University's Center for Social Media, of a report titled "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers," for which 45 filmmakers were interviewed. Among the more striking examples he cites is "Eyes on the Prize," the series on the civil rights movement. Henry Louis Gates Jr., chairman of the department of African and African-American studies at Harvard, has called "Eyes" "the most sophisticated and most poignant documentary of African-American history ever made." But it was last broadcast in 1993, and while schools or libraries may have a copy, it is not legally available for sale or rent on DVD or video.
"There's a whole generation out there who have not seen the program," said Sandy Forman, an entertainment lawyer heading a project to reclear the rights so that "Eyes" can be rebroadcast and distributed to the educational market. "When the rights were originally cleared, they were acquired for different terms. Some were in perpetuity, some were for 3 years, some for 7, some for 10." Once just one group of rights expired - and there are 272 still photographs and 492 minutes of scenes from more than 80 archives, plus the music - "we had to pull the film from distribution."
In August, the project received $600,000 from the Ford Foundation and $250,000 from the New York philanthropist Richard Gilder. PBS's "American Experience" is considering a 2006 broadcast of "Eyes."
"It's not clear that anyone could even make 'Eyes on the Prize' today because of rights clearances," Mr. Jaszi said. "What's really important here is that documentary commitment to telling the truth is being compromised by the need to accommodate perceived intellectual and copyright constraints."
On occasion, storytelling takes a back seat to legal and financial considerations. When Jon Else was completing his film "Sing Faster: The Stagehands' Ring Cycle," a backstage look at an opera company that won a Filmmakers Trophy at the Sundance Film Festival in 1999, he wanted to use a scene in which the stagehands watched "The Simpsons" as Wagner roared overhead.
"I felt it was a wonderful cultural moment to see two stagehands playing checkers while the gods are singing about destiny and free will and Marge and Homer are arguing on the television set," Mr. Else said. "We got permission from Matt Groening's company," which produces "The Simpsons," and then went to Fox.
"The first response was $10,000 for four seconds," Mr. Else said. "When I explained this was for public television, they replied that was their public television minimum. We eventually worked our way down to $7,000, but it was at the end of production, we were exhausted and out of money." It became more complicated. "Fox said, Wait a minute, any chance you're going to sell this? It wasn't the case of Fox being intractable jerks; it's just this odd gray area.
"At the last second, I replaced it with a shot of a film that I own," he said, adding, "I'll burn in journalistic hell for that."