Fear factor: films and the copyright clearance jungle

Kimberlee Weatherall is the Associate Director and Lecturer at the Intellectual Property Research Institute of Australia and a former volunteer lawyer at Arts Law.

Taking Chevigny's advice, you would think that Jonathan Caouette was pretty safe from rights clearance issues with Tarnation, the documentary about his relationship with his mentally ill mother and growing up gay in Texas which recently screened in Australia. Tarnation is, after all, a bricolage of Super 8 footage from Caouette's childhood and other footage shot on a Sony Handycam, edited using Apple iMovie software. In hard cash terms, it cost US$218 to make. It was hailed at the Sundance Film Festival as the 'new face' of DIY film-making.

But wait. Anyone who has seen Tarnation will know that it is not just a film about Caouette and his mother. As Caouette himself has said, "[e]verything about this film, I would literally start with the music and then work my way out from that point on." When music is used, however, copyright owners must be paid. Tarnation may have cost US$218, but rights clearances pushed the real budget to US$400,000. Think of that figure as you tinker with iMovie, dreaming of Cannes glory.

Caouette was fortunate: he found a distributor after the film was made willing to deal with the rights issues. Even then, there was  'a lot of stuff' excised because the rights could not be obtained. In most cases more planning is needed. The producer/writer of Mad Hot Ballroom, a documentary following a ballroom dancing competition involving New York public school kids, cleared almost 50 songs before filming. She even ensured that only cleared songs would be used in the kids' classes in order to avoid the need for later editing. Negotiation of the rights was a painstaking, iterative process, with much wheedling, caressing, charming and bargaining. Sewell has stated that had she known what she would have to go through, she may not have pursued the project.

These are not isolated incidents. In a recent study involving interviews with documentary film-makers in the United States, Aufderheide and Jaszi heard many similar stories: of escalating costs and aesthetic and creative compromises. 

Is permission required too often? Is too much transformative or creative re-use prevented? It is worth noting that rights clearance can be expensive and difficult because creators have the right, subject to exceptions in copyright law, to decide how their material is re-used by others. Legitimate interests are at stake: protecting the integrity of work and securing remuneration. 

How, and where to strike the balance between first creators and transformative re-users is being debated as the Attorney-General reviews copyright exceptions under Australian law. Strongly divergent views exist regarding whether the current balance is right. But there are many who say that copyright law is too strict on the 're-mix' culture. As a result of this inquiry, we may see legal change. But legal change is not the only solution. Jaszi and Aufderheide have suggested that what the industry needs is to think about a set of  'best practice' guidelines, backed by representative organisations, to give creators more confidence as to what is allowed.

In the meantime, rights clearance is not for the 'newbie', and the best advice is to get individual legal advice. But there are a few simple things to watch out for.

The first is cost. In the US, figures like 10% of total budget are mentioned but with Mad Hot Ballroom it was more like 45%, and for the documentary Ella Fitzgerald – Something to Live For, rights clearances were 60% of the $1 million budget. Not to mention Tarnation.

Second: watch for prohibitively expensive, or unattainable materials.  'Happy Birthday' is notoriously costly. Some footage – like some Disney childrens' film footage – can be completely unattainable at any price.

Third: think about the scope of the rights: the geographic extent, duration, and kinds of rights. Try to get what you need the first time around. Going back to renegotiate is expensive in terms of time, effort and higher fees. The inability to renegotiate clearances has kept more than one famous documentary off broadcast television and off the store shelves: most recently, the historical civil rights film Eyes on the Prize was reportedly affected.

Fourth: watch tricky clauses like  'most favoured nation' clauses. If a rights holder has 'most favoured nation' status, you will be required to pay them the highest fee paid for a comparable song – regardless of what they agree to the first time around. If songwriter Joe licenses his clip for $10,000 with MFN, and Andrew later licenses for $12,000, Joe gets $12,000 too. This can suddenly blow an entire rights budget.

But finally – most importantly – learn from Mad Hot Ballroom and plan ahead. The last thing you want to be doing is cutting the soul out of your film because of copyright issues.

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