Students: Matthews-Lynch, Carly
Class Code: CS 1
Subject: CM102 Perspectives on Culture
Lecturer: Jim Rogers and Sheamus Sweeney
Title: Copyright? Enabling or constraining the creative process
Date: 11th May 2009
“Copyright is concerned with original works and any forms in which they may be published or released or performed for others” (Wall, 1993: 6). It gives the owner of work rights to distribue, publish and amend their creation until it eventually enters the public domain. The first copyright act was implemented in Britain in 1709. The Statue of Anne stated that the author of work maintained the rights to copy said work for a 14 year period, at which time the copyright expired (Tallmo, 2009). In 1790, US copyright law was finally instigated. Article One of the United States Constitution permits Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. (Goad, 2005) These acts were introduced in order to encourage the creation of new ideas, as it was felt that without such safeguards in place, people would be unwilling to share their innovations.
This essay is a crticial attempt to conclusively estalish whether copyright is a help or a hindrance to the creative process by focusing on examples from a specific area; documentary film-making.
Does copyright inhibit documentary film-making?
In the simplist of terms, documentaries act as visual records of our culture, and as a result of this, certain copyrighted aspects of our civilization have a tendency to seep into pictures. Therefore, filmakers are often obligated to clear the rights to these in order to avoid legal action being taken against them. This process merely involves contacting the rights holder and seeking permission to use their work as “only works published before 1923 or produced by the federal goverment are clearly in the public domain” (Boyle & Jenkin, 2008: 9). Fair Use generally acts as a kind of loophole to avoiding persecution, as it enables usage for commentary and criticisms. However, regarding this particular argument, some have their qualms about the sustainable legality of fair use. “Fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before.” (Fair Use of Copyrighted Materials, 2005) This can lead to a number of problems, particularly regarding independent features.
An instance of this is evident in John Else’s film ‘Sing Faster: The Stagehands’ Ring Cycle’ a documentary about those working backstage on Wager’s Ring Cycle opera. 4.5 seconds of ‘The Simpsons’ were caught in the background of one of the scenes, and although the cartoon’s creator Matt Groening did not object to its use, its distributor’s Fox Television, demanded $10,000 for the clip, resulting in the scene being cut (Lewis, 2000) & (Boyle & Jenkin, 2008: 13).
These kinds of demands can often lead to the essence of a film being drastically altered, thus disrupting the intended creative output. In 2001, Davis Guggenheim, director of ‘An Inconvenient Truth’ had produced a documentary for PBS entitled, ‘The First Year’; a film about 5 teachers working within the LA public school system. Whilst filming a field trip, Led Zeppelin’s ‘Stairway to Heaven’ came on the radio. One of the teachers teacher turned up the volume and requested the teens listen to “the greatest song ever written” (Boyle & Jenkin, 2008: 1), but they remained disinterested. Since Guggenheim was unable to clear the rights, this “live generation gap” which was said to have been a pivotal moment in the overall piece, ultimately had to be cut out (Boyle & Jenkin, 2008: 15). A way in which Guggenheim could have retained the scene, would have been if he was willing to dub over the music with something already within the public domain. However, the point of documentaries are to capture the truth and this compromise could have been interpreted as a distortion of reality. Guggenheim has written that the reason he was unable to secure the rights was never financial nor commercial, but because he could never find the actual rights holders to the song, once again portraying the convoluted nature of the present copyright system (Boyle & Jenkin, 2008: 1).
As a result of the current “clearance culture” combined with complex and expensive copyright procedures, “Documentarians are avoiding a wide range of subjects including political and social commentary, musical subjects and popular culture generally. They routinely alter the reality of the localities where they captured images, and they also change both sound and picture after the fact.” (Aufderheide, 2007: 28) These disruptions have ultimately served to impede creativity and alter the meaning of the artistic production that was originally intended.
Does copyright enable documentary film-making?
Copyright was always intended to act as a creative stimulant, encouraging people to generate new innovations, secure in the knowledge that their work would be protected. It bestows rights upon the owner that allows them control and be paid for their creations. US copyright law protects “8 types of work once they are “fixed in any tangible medium of expression.” These include; literary works, musical works, dramatic works, pantomimes and choreography, pictorial, graphic and sculptural works, motion pictures, sound recordings and architectural works” (Boyle & Jenkin, 2008: 29).
An important development in copyright laws came with the introduction of Creative Commons, which was founded by Lawrence Lessig as a part of the ‘copyleft’ movement. This is a new meausre undertaken to try and remove restrictions on copyrighted material rather then inflict them. “Creative Commons provides simple licenses, which specify conditions on how the work can be used. The overall goal is to clarify and expand the intellectual property commons, while lowering transaction costs. CC hopes to capitalize on the accretive nature of expression – when artists benefit from the greater amounts of material in the commons, they will be more inclined to share their works as well” (Lewis, 2005: 5). In other words, it allows artists to choose which rights they reserve and which they relinquish in order to produce a broader public domain for the benefit of future creativity. Creative Commons is mostly used to licence online works for non-commercial use and only if one attributes the work to its original owner. (Boyle & Jenkin, 2008: 31).
With regards to documentaries, much of what is captured on film is copyrighted under law. It is in instances such as these that ‘fair use’ is generally employed. This enables people to use copyrighted materials for a number of purposes, such as to “report on news, to quote for scholarly purposes, to criticize, etc” (Boyle & Jenkin, 2008: 29). “Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, such as documentary filmmaking, lawyers and judges consider professional expectations and practice in assessing what is “fair” within the field.” (Documentary Filmakers’ Statement of Best Practices in Fair Use, 2005: 2) However, despite these claims, fair use can be confusing. Therefore in 2005, a Fair Use Handbook was written to relieve worries documentary film-makers often encounter when they find themselves contrained by misrepresentations of the law. It divides uses into 4 categories:
- 1. Employing copyrighted material as the object of social, political or cultural critique.
- 2. Quoting copyrighted works of popular culture to illustrate an argument or a point.
- 3. Capturing copyrighted media in the process of filming something else.
- 4. Using copyrighted material in an historical sequence. (Documentary Filmakers’ Statement of Best Practices in Fair Use, 2005: 4)
Examples of uses that were deemed to be fair include “The documentary ‘Aliens Invade Hollywood’, [which] could use 3 clips totaling 48 seconds from ‘Invasion of the Saucermen’ to show early film portrayals of alien visitations and government cover-ups” (Boyle & Jenkin, 2008: 29).
Fair Use and CC are prime examples of how modern copyright has advanced in recent years, enabling fresh young film-makers to take full advantage of the public domain and arouse their creative instincts.
Having studied both sides of the argument, it is obvious that there are a variety of advantages and disadvantages present in each case. Although the need to safeguard one’s work is understandable, sourcing raw materials can become more complicated if they are over-protected. In a recent copyright ruling, Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit was quoted as saying that “Overprotecting intellectual property is as harmful as underprotecting it…Culture is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” (Morgan, 2003)
It is reasonable for people to expect payment for their work, but the task of documentarians is to portray an honest representation of our world. A world which happens to be satiated with copyrighted culture. “Demanding payment for every use can hinder the very creativity that copyright is supposed to encourage” (Boyle & Jenkin, 2008: 58). Therefore the most obvious way in which film-makers can secure their rights without drastically altering copyright law, is to “preserve fair use” (Boyle & Jenkin, 2008: 59). It is this aspect of copyright law which proves that in spite of previous complications, so long as there are set standards in place, such as the Film-Makers Handbook, copyright genuinely has the ability to inspire creativity and protect its creators in the safest way possible.
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© Carly Matthews Lynch 2010