An article in The New Republic by Lawrence Lessig...

In early 2002, the filmmaker Grace Guggenheim--the daughter of the late Charles Guggenheim, one of America’s greatest documentarians, and the sister of the filmmaker Davis Guggenheim, who made An Inconvenient Truth-decided to do something that might strike most of us as common sense. Her father had directed or produced more than a hundred documentaries. Some of these were quite famous (Nine from Little Rock). Some were well-known even if not known to be by him (Monument to a Dream, the film that plays at the St. Louis arch). Some were forgotten but incredibly important for understanding American history in the twentieth century (A Time for Justice). And some were just remarkably beautiful (D-Day Remembered). So, as curator of his work, Grace Guggenheim decided to remaster the collection and make it all available on DVD, which was then the emerging platform for film.

Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.

Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements--music, plot, characters, images, and so on. Once the film is made, any effort at remaking it--moving it to DVD, for example--could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations--clips from news stations--from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film--typically, news footage from CBS or NBC.

Whenever a documentarian wanted to include these clips in his film, he would ask CBS or NBC for permission. Most of the time, at least for a healthy fee, CBS and NBC and everyone else was happy to give permission so as to be included. Sometimes they wanted to see first just how the clip would be used. Sometimes they would veto a particular use in a particular context. But in the main there was a healthy market for securing permission to quote. The lawyers flocked to this market for permission. (That’s their nature.) They drafted agreements to define the rights that the quoter would get.

I suspect that most filmmakers never thought for a second about how odd this “permission to quote” was. After all, does an author need to get permission from The New York Times when she quotes an article in a book about the Depression? Indeed, does anyone need permission from anyone when quoting public statements, at least in a work talking about those statements? Ordinarily, one would think that this sort of “use” is “fair,” under the rules of copyright at least. But most documentarians--indeed, most filmmakers--did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.” Instead they agreed to licenses that govern--exclusively, as they typically asserted--the rights to use the quotes that were in the film. So, for example, the license would insist that the only right to use the film came from the license itself (not fair use). And it would then specify the scope and term of the right--five years, North American distribution, for educational use.

What that agreement means is that if the filmmaker wanted to continue to distribute the film after five years, he would have to go back to the original rights holder and ask for permission again. That task may not sound so difficult if you think about one clip in one documentary. But what about twenty, thirty, or more? And even assuming that you can find the original holders of the rights, they now have you over a barrel--as the owners of the famous series Eyes on the Prize discovered. Jon Else, the producer and cinematographer for the series, described the problem in 2004 (extraordinary efforts have now resolved it):

[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.

As American University’s Center for Social Media concluded, “rights clearance costs are high, and have escalated dramatically in the last two decades,” and “limit the public’s access” to documentary film. The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which--like lead in gasoline--were introduced without any public recognition of their inevitable toxicity.

Except of course for those with a devoted heir, such as Grace Guggenheim. She was not willing to accept defeat. Instead she set herself the extraordinary task of clearing all of the rights necessary to permit her father’s films to be shown. Eight years later, she is largely done. About ten major works remain. Just last year, her father’s most famous documentary--Robert Kennedy Remembered, made in 1968 in the two months between Kennedy’s assassination and the Democratic National Convention, and broadcast only once--was cleared for DVD release through the Robert F. Kennedy Memorial Center.

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