Archival Storytelling, by Sheila Curran Bernard and Kenn Rabin

Archival Storytelling

I read Archival Storytelling more for “professional” reasons than just out of general interest. The book is about the legal and economic aspects of obtaining and using third party visuals and music in films. Since I am now making my films semi-professionally, this is of obvious relevance to me.

I still remember an article I read on this topic quite a while ago before I got this seriously into filmmaking. The gist of it was that copyright law has gotten totally out of hand to the point that documentary filmmakers who don’t have very deep pockets are shying away from a lot of topics and approaching others in a way different from their own judgment of what is artistically the best, because almost all visual or auditory records of the past are owned by someone (usually a major corporation) who will charge them exorbitantly to use the material.

Good luck, for instance, making a documentary about the ’60s, since you won’t be able to use the news footage, music, basically any recognizable sights and sounds of that historical period, if you aren’t rich enough to purchase the rights to use them from the media conglomerates who own them all, or more likely, from those employed by or affiliated with those media conglomerates.

The question becomes “Who owns the past?” Is there some point at which things are so much a part of the culture that they are fair game to be used by anyone, or do they eternally or nearly eternally belong to whoever copyrighted them?

I would say this book is generally in agreement with that article’s description of the current state of affairs, and sympathetic to its lamenting of it. It doesn’t allow itself quite the degree of advocacy as the article–it’s a bit more careful and restrained–but I’d say they’re roughly on the same side of these issues.

The book also treads very carefully in not wanting to come across as recommending violating copyright law. There are some mentions here and there of the growing frequency of such violations, but especially when it comes to how to get away with that, or whether the consequences are mild enough that it can be worth it even if you do get caught, the book leaves such matters understated or implied.

But that’s something I found myself thinking about maybe more than the book itself really goes into: Can and should copyright laws be ignored?

Philosophically, copyright laws are an attempt to balance two competing interests. If every bit of art or literature or intellectual property is fair game the moment it’s created, then one of the main incentives to create it in the first place–financial gain–is all but eliminated. On the other hand, the more total and long-lasting such rights as held by the creator are, the more it hampers future creativity, since virtually everything builds on what came before. So you want the material out there available for people to use, but not so soon and so unrestricted that no one bothers to create it in the first place.

What has happened though is the pendulum has swung way, way in one direction, and not because it’s somehow warranted, but because the forces that benefit from extending copyright happen to have the most money and lobbying resources to bring to bear to skew the law in their favor. Now everything is copyrighted whether you formally register it or not, and the copyright lasts practically forever.

What has happened–and again you get a little of this in the book but also have to read between the lines–is that the more one-sided it has become, the more people have felt justified in violating copyright. The civil disobedience is so massive on certain levels–e.g., videos posted on the Internet–that countermeasures have not been able to keep up. For instance, a large percentage of YouTube videos violate some copyright or other, but only a relative handful get caught. And when they do, generally no action is taken against the perpetrator except that the video is removed from the site.

So I read the book with two basic things in mind as it pertains to my films: 1. At what level of distribution do I have to worry about copyright? That is, though copyright applies even at the very, very low level I’m operating, does anyone really care what I’m doing? And 2. Where can I get material for free that is not under copyright, so that as often as possible this won’t even be an issue?

Though the book is fairly well written and well organized, is at least somewhat interesting for those at all curious about copyright law and filmmaking, and appears to be well-researched and accurate, on just those two narrow points most relevant to my work I can’t say it was more than a little helpful.

To take the second first, the website associated with the book has extensive lists of sources of archival material, including those that are free of copyright. But the book itself has next to nothing of that kind. So really I could have skipped the book entirely and just consulted the website and I’d have been fine.

The first I’ve already addressed a bit. The book kind of talks around it, or gets at it in an indirect or implied way, so as not to be seen as advocating violating the law. So you can glean some information from it, but it’s limited.

But what I gather is, it’s not accepted to violate copyright–no matter how unjustified the laws seem to some–on a significant enough film project that will be shown in theaters or TV, or probably even that will be distributed only for classroom use or will get a decent amount of corporate distribution–like a training film that will be shown to employees at numerous locations of a franchise operation. These things have to be insured, and it’ll be impossible to get such insurance if you haven’t cleared up all potential copyright matters. You just can’t operate under the radar at this level. (The one exception may be, ironically, if it’s an especially big project. That is, a major studio or TV network might be able to use some material in a legal gray area, because if the much smaller entity they got it from claims copyright infringement, they have the resources to make it time-consuming and expensive enough to win by attrition.)

At the opposite end, as mentioned you can put just about anything on YouTube and the chances of getting into trouble are tiny, and the magnitude of that trouble would also be tiny anyway.

The book is geared much more to the makers of “real” films that will be shown in theaters, at film festivals, on television, etc. And really it paints a pretty pessimistic picture for those filmmakers. Archival material under copyright is very expensive, and involves a lot of legal complexity and paperwork that is totally the filmmaker’s responsibility to stay on top of. The book does conclude by urging filmmakers to not succumb to these difficulties and to insist on using archival materials whatever the drawbacks, but to me the substance of the information they present points instead to the conclusion that it’s best to do everything you can to avoid using copyrighted material and the expensive hassle it takes to get it.

But I think my films are more like the YouTube case. Actually, the distribution is even smaller. I do private films for people, mostly personal history type films. So if I use a photograph from the Internet and I don’t check to see if it’s under copyright, or I use a popular song from fifty years ago, the film’s only going to be seen by probably five to fifty people anyway. Maybe sample clips from it I put on my website will be seen by a few more, but unless I become really big and am doing a lot of marketing and such, it certainly won’t be very many more.

It would have been nice for my purposes if the book had said more about this so that my conclusions would be less speculative, but my feeling for now is as long as I’m working on my present very small scale, even if the copyright laws technically apply to me, no one really cares. No one’s going to know, and if they do find out, the consequences for me will be nonexistent or very light.

So probably copyright is something for me to be aware of for the future if I try to “go big” with my filmmaking, but isn’t very relevant to what I’m doing now. I think.

But as far as the book itself, I’d rate it fairly high for being useful and informative for its target audience. I’m only on the fringe of that audience, so for me it was only mildly interesting and a little helpful, but not really all that valuable.

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