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The First Amendment Project: Fox vs. Franken Courtesy of Sundance Channel.

Most nonpractitioners of documentary film know little about the increasing obstacles to obtaining rights and clearances that independent filmmakers face. A new study from American University’s Center for Social Media (www.centerforsocialmedia.org), titled "Untold Stories: Creative Consequences of the Rights and Clearance Culture for Documentary Filmmakers," outlines how serious these commercial and legal restrictions are becoming. For example, to license the song “Happy Birthday” in a vérité scene or home-movie footage can cost upwards of $15,000. Many documentaries cannot be released on video, DVD, or in theaters because the additional money required to license is prohibitive (the Eyes on the Prize series would cost half a million dollars in footage fees to release again). Also, utilizing the Fair Use doctrine in order to gain access to material otherwise unavailable can stop a film’s distribution because insurers are unwilling to grant errors and omissions insurance—a requirement for broadcast—or because distributors are simply unwilling to take the risk.

Generally, the fees charged by news archives can be forbidding, especially for historical documentaries, where recorded history is crucial. And these owners of visual history are becoming increasingly arbitrary as gatekeepers of material. An employee at one major news archive told me that post–Fahrenheit 9/11, all footage screeners must be reviewed by management and that any material that might be “embarrassing” to politicians is blacked out and rendered unavailable. The implication is that the White House has let it be known that if such material gets out again, that network’s news division will be punished through restricted access.

Film still from Born Into Brothels.

In general, lawyers advise such strict clearance requirements that, if followed fully, might render documentarians unable to make a film. Having to get clearances and releases for every advertisement, logo, or printed graphic that shows up in a shot, or from any passersby on the street, poses risks and hurdles that would pretty much stop filmmakers from even trying. Still, although the report states that the clearance culture has “significant implications for the work of documentary filmmakers,” even dictating the choice of subject matter, there are indications that more and more filmmakers are flexing their Fair Use muscles and in a coordinated and conscientious way. There is a risk that owners of recorded history may become increasingly paranoid and prosecutorial in Bush’s second term. In such an atmosphere, these Fair Use challenges become not only important in the domain of filmmaking but also for anyone who believes in free speech.

The First Amendment Project

(Court TV and the Sundance Channel, December 7 and 14 at 9 p.m.)

This fortunate coproduction of two cable channels includes four short films: Fox v. Franken, by Chris Hedges and Nick Doob, which is about Bill O’Reilly’s misguided attempt to sue Franken over the title of his book, consequently making it a best seller; Poetic License by Mario Van Peebles, about New Jersey’s third and last poet laureate, Amiri Baraka; No Joking, by Bob Balaban, on the First Amendment hero Lenny Bruce; and Some Assembly Required, by John Walter, which follows a number of people as they protest during the more hopeful activist times of the Republican National Convention. We need these films now more than ever.

Born Into Brothels

(Opens December 8 at Film Forum)

This Sundance award-winning film takes place in Calcutta’s red-light district and was born from photography workshops that Zana Briski held with the children of prostitutes, who are shunned by Indian society even more than the prostitutes themselves. By placing a number of point-and-shoot cameras into the hands of the children, the film tracks their transformation as they learn photography while simultaneously showing the filmmakers’ attempts to navigate Indian bureaucracy to get them out of the slum.

In the Realms of the Unreal

(Opens December 22 at Film Forum)

Continuing to expand the ever-expansive medium of documentary, Jessica Yu’s film, about the 15,000 single-spaced typed pages and hundreds of artworks discovered in Henry Darger’s small apartment after he died, brings to life the fantasy epic that this sweet misanthrope created. Just as The Kid Stays in the Picture animates stills, this film animates the wildly fantastical drawings and collages that Darger obsessively collected, mixing in industrial films and thrift-store ephemera to depict a place in history. Like some kind of modern-day Bosch, Darger’s life shows that trauma and isolation can often yield profound works of art.