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November 22, 2004

The Problem of the Anti-Commons in Filmmaking

The ridiculous reach of copyright laws impairs film making.

Economists like to say that property rights are needed to foster innovation. But the evidence is piling up in one field after another that property rights have gotten so extensive that they are choking new creativity. The latest example comes from the world of filmmaking.

A new report by Patricia Aufderheide and Peter Jaszi of American University documents how the rights clearance process is crippling the creativity of documentary filmmakers. The report — “ Untold Stories: Creative Consequences of Rights Clearance Culture for Documentary Filmmakers” — draws upon interviews with 45 directors, editors and producers. The report finds that filmmakers must often make significant changes in their work because of the costs or complications of rights clearances. (A short film, available online, also explains the problems described in the report.)

For example, it’s common for film studios, photo archives, record labels and music publishers to deny a requested use of a work or to charge exorbitant fees. What makes this galling is that sometimes the “right” is stupidly trivial — a trademarked logo on someone’s clothing in the film, or radio music or television images playing in the background of a scene. Here are some examples of clearance problems encountered by filmmakers:

  • NBC refused to license a video clip of President Bush making a public address; filmmaker Robert Greenwald speculates that permission was denied to him because NBC did not want to appear to be associated with a political film.
  • Filmmaker David Van Taylor wanted to use a clip of a campaign rally for Oliver North, who once ran for the Senate. But because the clip included someone singing “God Bless America,” a song owned by the estate of Irving Berlin, Taylor had to pay a substantial fee.
  • In a pivotal scene of Hoop Dreams, Peter Gilbert’s celebrated film about inner-city basketball players, there is a scene with the singing of “Happy Birthday.” It cost Taylor $15,000 to $20,000 to use just one verse of “Happy Birthday.”
    These kinds of expenses and hassles represent a huge drag on the creative process. The situation brings to mind the “tragedy of the anti-commons” described a few years ago by Michael Heller and Rebecca Eisenberg in a seminal Science magazine article. An “anti-commons” describes a situation in which a resource is seriously under-used because “multiple owners each have a right to exclude others — and no one has an effective privilege of use.” Scientists seeking to develop a malaria vaccine simply can’t pursue certain research avenues, for example, because they don’t have the money or time to clear patent rights on dozens of research tools. So it is that the “freedom” of the free market can be transformed into the un-freedom of the “permissions culture.”