Fog of War (2003),

Whether it be video, photos or sound, when used creatively, a well-placed audio or visual clip from another era can be the perfect commentary on the theme or point of view in your film.

Take Errol Morris and his ironic placement of archive material throughout his academy award-winning Fog of War (2003), a film about American wars as seen through the eyes of former Secretary of Defense, Robert S. McNamara. In one old newsclip president, Lyndon Johnson promises, “We seek no wider war.”The next clip is file footage of the heaviest bombing campaign in Vietnam under Johnson. In “The Agony and the Ecstasy of Phil Spector”(2008) director Vikram Jayanti uses file footage from the legendary music producer’s murder trial and layers it with Spector’s own work. In one courtroom scene an ex-girlfriend testifies to Spector’s violence while the soundtrack plays the Chrystals’ controversial “He hit me (and It felt like a kiss)”penned by Carole King and produced by Spector.

How creative you get using archival visuals and sounds in your documentary is limited only by your imagination as a storyteller, but finding, accessing and getting the rights to use the material might not be nearly so enjoyable.

Typically, the detective work of finding the perfect archival footage, identifying who owns the rights to it and then having it cleared for use in a movie is done by a visual researcher. If your production doesn’t have the budget for a seasoned researcher and you plan to do the rights and clearance work yourself, be prepared to roll up your sleeves.

Research, Research, Research

Research is the backbone for an archival strategy that complements the themes and objectives of your film. Be meticulous and look everywhere, including print sources, which can lead you to new information about your subject and give clues as to where you might find related footage and images. Looking for file footage about a person, a company, an event, a brand, a place or group? Here are some places to start looking for archival clips that won’t break the bank.

BE METICULOUS AND LOOK EVERYWHERE, INCLUDING PRINT SOURCES, WHICH CAN LEAD YOU TO NEW INFORMATION ABOUT YOUR SUBJECT AND GIVE CLUES AS TO WHERE YOU MIGHT FIND RELATED FOOTAGE AND IMAGES.

Start with participants in your film. Ask if your subjects have any photos, videos or documents related to what your doc is about. If they have old photos or clippings, consider bringing a portable scanner to interviews to scan material that your subject doesn’t want to part with. Don’t forget to have them sign a release.

Setting up a Google News alert will produce responses that go straight to your inbox. Enter keyword search terms about your subject, and Google will email you a variety of material ranging from news items and books to blogs and videos.

Google News Archives is an extension of Google News and returns search results in the form of scanned newspaper archives, including material from papers no longer in existence.

One of the best sources for online newspapers is paperboy.com, which includes US papers listed by state and world papers listed by country.

Obituaries are a great source of historical information, as are court transcripts. And of course, the obvious, search for books about your subject, but remember that book covers are copyright protected and need to be cleared for use in a film.

Finding It

For your lo/no-budget doc project, start archival image searches by looking at free public domain sources such as libraries and museums. Private owners of personal film materials frequently donate to libraries and museums, often relinquishing copyright for public benefit. Anything published before 1923 can be assumed to be in the public domain. Most material produced by the US Government automatically enters the public domain, for instance security-cleared military video and photos, White House films and images, C-SPAN recordings taken on the floor of Congress, and video produced for federal departments.

The Internet Archive (archive.org) is a non-profit library of digital media which donors have attested to falling into the public domain or under Creative Commons licensing.  Creativecommons.org is worth a visit for getting the details about free sharing of media content and refining the rules of copyright.

The Library of Congress (loc.gov) has been collecting motion pictures since 1893. Reference staff in the Moving Image Section of the LOC will take your footage request and determine whether a copyright search is necessary before releasing it.

Library of Congress website
The Library of Congress is a great place to start your search, especially if you’re looking for footage from the earliest days of motion pictures.

The Library of Congress (loc.gov)

The National Archives (archives.gov) in Washington has a vast collection of historical still and moving images that can be accessed for an administrative fee if there are no copyright restrictions on the material. In 1976 Universal Studios donated to the National Archives a series of newsreels produced between 1929 and 1967. These time capsule gems are in the public domain without copyright restrictions.

For out of this world imagery, NASA’s home page (nasa.gov) has a link to royalty-free resources which you can use as long as you credit the National Aeronautics and Space Administration, and you don’t use their logo.

If you’re looking for military footage, the Defense Video Imagery Distribution System (dvidshub.net) operated by Third Army/U.S. Army Central has a substantial library of video and stills imagery produced by US military personnel. All you have to do to use the public domain material is to register with DVIDS and credit the image producer.

Footage.net is a stock footage search platform with instant access to the world’s top footage collections from TV news to historical footage.

footage.net website
Footage.net is a search platform that helps you find footage from a variety of sources.

Focal International (Federation of Commercial Audiovisual Libraries International; focalint.org) connects visual researchers to 140 stock footage libraries worldwide.

Terraserver.com is the gateway to billions of satellite images and aerial photos.

From esoteric news clips of yesteryear to historic music performances the WPA Film Library (wpafilmlibrary.com) is a one stop search and buy platform for stock footage that has been cleared for licensing and, according to users, is very fairly priced.

Clearing It

License fees for clearing copyrighted material from commercial footage banks are typically based on distribution, territory and term. Here’s what that means:

Distribution: how your film will be released – television, cable, theatre, film festival or online?

Territory: where the film will be seen –  North America, Europe, Asia or worldwide?

Term: how long you own the copyright of the material – ” ten years or in perpetuity or somewhere in between?

The broader and more inclusive the terms of the licensing agreement, the higher will be the fee.

Beware of underlying rights. This could mean, for example, that if you shoot a band’s performance of a tune but decide to use another recording of it, you might end up having to clear the rights with the publisher, composer and the record company who mastered the recording. If you’re planning on using a feature film clip or a snippet from a TV show, be prepared to pay a fee for underlying rights to the Writers and Directors Guild. Also, you will be expected to negotiate residuals for al Screen Actors Guild performers in your clips.

The Center for Media and Social Impact (CMSI) is one of many excellent online resources for advice about copyright clearances for documentarians. Google the websites of entertainment lawyers and visual researchers, and you will find rich repositories of guidelines for filmmakers who want to use archival material in their docs. Entertainment lawyer Joy Butler, who was interviewed for Docs in Progress, says, “Don’t wait until the last minute to start clearing rights. Rights clearance should begin during pre-production. Some rights holders take weeks to get back to you.”Butler says to start looking for rights and clearances quotes as soon as you know what archival footage you want to include in your doc.

And, don’t forget to register your own film with the US Copyright Office; registration will make it easier to protect your film.

SIDEBAR: Fair Use

Fair use of copyrighted material in documentary has often been misunderstood by emerging filmmakers. The Center for Media and Social Impact (CMSI) has a treasure trove of information about fair use. Here are some of the guidelines organized around four common situations when documentary makers may assert fair use of copyrighted material:

Media Critique: Showing clips or excerpts of a film or video or any other work for the purpose of analyzing it or commenting on it is allowed as long as the use of the work commented on does “not become a market substitute for the work.”An example of fair use in this category is John de Graaf’s “Escape from Affluenza”(1998), in which he includes clips from television ads to comment on consumerism.

Quoting Copyrighted Works: It’s ok to use a TV or film clip to comment on a theme or argument a documentary is trying to make. Here’s an example: In “Enron: The Smartest Guys in the Room”(2005), about the collapse of the Enron Corporation, director Alex Gibney wanted to use a clip from an episode of “The Simpsons.”The clip featured a roller coaster called “Enron’s Ride of Broken Dreams.”The program’s producers refused to license the use of the excerpt. When Gibney’s lawyers had the director add narration that gave context to the clip a copyright suit was avoided and fair use was firmly on the table. The short piece of narration Gibney wrote to be inserted simply read, “Enron hit the national psyche”which was followed by a poignant scene of a precipitous roller coaster ride to nowhere. One of the conditions for this category of fair use is that the clip is “no longer than necessary to achieve the intended effect.”

Incidentally Captured Material: Here’s the principle as outlined on CMSI’s Fair Use and Best Practices web page: “Where a sound or image has been captured incidentally and without prevision, as part of an unstaged scene, it should be permissible to use it, to a reasonable extent, as part of the final version of the film.”

Limitations for use of incidentally recorded material are that it can’t be directed or be integral to the action nor should it constitute the scene’s primary focus of interest; in the case of music, the content cannot function as a substitute for a sync track, and the music cannot be used after the filmmaker has cut away to another sequence.

An example of evoking fair use in incidentally captured material is “5 Girls,”a PBS doc in the broadcaster’s POV series. Producer Maria Finitzo shot a party scene for her film about female adolescence. A Lauryn Hill song was playing in the background. Fair use of the song was in play because the girls in the scene chose the music themselves and “their choices were part of their daily lives.”

Using copyrighted material in a historical sequence: CMSI’s principle for this category of fair use reads as follows: “Given the social and educational importance of the documentary medium, fair use should apply in some instances of this kind. To conclude otherwise would be to deny the potential of filmmaking to represent history to new generations of citizens.”In an episode of the PBS history series “American Experience”entitled “Citizen King,”director Orlando Bagwell used Martin Luther King Jr.’s “I had a dream’ speech. The King estate claimed copyright, but Bagwell evoked fair use “because the section was historically crucial”and no suitable substitute existed.

The limitations for using copyrighted material in a historical sequence stipulate that the film project not be specifically designed around the material in question; that the use is no more extensive than is necessary to make the point for which the material has been selected.

Several years ago we had the pleasure of attending a workshop on visual research given by Elizabeth Klinck, an award winning visual researcher. The wisdoms in this article were in part drawn from workshop notes. Elizabeth has worked as a visual researcher, and clearance specialist on numerous award-winning international documentaries. www.elizabethklinck.com

A seasoned script-to-screen television and video producer and trainer, Peter Biesterfeld is a non-fiction storyteller specializing in documentary, current affairs, reality television and educational production.

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