Copyright, docs, Lessig, licenses

Recently in The National Republic, Lawrence Lessig addressed the issue of copyright in documentaries and how it is keeping classic films like Eyes on the Prize out of commercial circulation. The problem is that filmmakers must clear copyright for archival elements in their work such as television clips and music, and generally the licenses for these clips is for a limited time period like 10 or 20 years. After that time, the filmmaker would need to clear (i.e. re-license) all of the archivals again in order to sell the work.

For most docs, this can be extremely onerous since the opportunity for revenue is small whereas the cost of the licenses is often significant.

I’m on the committee for the Women’s Film Preservation Committee through NY Women in Film and we worry about preserving the negatives of films that are decaying, fading, or otherwise in danger of being lost. But Lessig’s point is well-taken that without adjusting the issues around copyright, many of these films are effectively vanishing regardless of the quality of available prints.

Digital distribution has changed the meaning of copyright, and in some ways it’s made the original copyright holders more avaricious. They feel like they need to get all they can from television clips and music placed in films, as it’s one of the few reliable revenue sources left for content.

But Lessig’s essay prompts an interesting solution. What if, for example, there were some kind of limitation placed on the initial license period, after which all usage reverted to a straight royalty system based on percentage of the work? For example, if you used a clip of the Kennedy assassination in your film, you would have to pay whatever the market rate was for a 20-year license.

But after that time, you would have to pay a royalty to the rightsholder based on how long the clip was versus how long your film was against whatever revenue you received from the film, unless you got a deferral or consideration from the rightsholder. This could be used for music rights for fiction films as well, in theory.

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