January 28, 2005

Commonsizing vs. Copyright II

Ah ha! I get to finally use the trackback feature. Thanks to The Madisonian for engaging. As Prof. Madison notes there:

...the argument really does turn out to be about copyright law, not just about fairness to Henry Hampton and his family. The argument for Eyes on the Screen (the campaign) starts from the premise that the copyright to the film may be owned by Blackside, but the real value of the film is the history, not the film. The history isn’t owned by anyone. Moreover, it isn’t just Blackside’s copyright that’s at issue; re-releasing Eyes on the Prize is complex, and the Eyes on the Screen campaign is arguably appropriate, because of copyright clearance issues that have to be resolved for material that the film borrowed from other sources. No one is necessarily a bad guy here. There are just an awful lot of people with irons in the copyright fire.

Here’s the tie to the basic copyright question: Is protecting these copyrights, including Blackside’s, the best way to ensure that the history is widely known? Or is commonsizing the film – long after it was first broadcast and distributed, and long after Henry Hampton’s place in film history was assurred – a better way to share that history?

I would respond as follows. Eyes on the Prize is not the history. The history is not the film. Rather, Eyes is one filmmaker's idea of a presentation of the history, in one medium. Its execution was the work of hundreds of talented people - I don't want to sound like I'm claiming Henry did it all by himself in a garret somewhere! The film came to be, however, because from the time he was a teenager, he worked towards building Blackside, building a team, and doing that movie with them.

As such, claiming that the importance of the history should grant rights to the people to appropriate Eyes on the Prize strikes me as a bit of an overreach. The history is there. It's available in all manner of places. However, my uncle and his colleagues did an awful lot of work to make it available and accessible in one place, and understandable and emotionally meaningful to viewers who did not live through it. That was their contribution. Claiming now that because the history they covered is so very important that their work should be available to all is somewhat akin to proposing a system of Eminent Domain for information and intellectual property. That's all well and good, but who decides? The mob? And using what criteria? If we take Downhill Battle's example, any group of activists with a website can suddenly then declare Eminent Domain on any piece of intellectual property that they wish, set up a website and a BitTorrent link, and have at it.

Let me approach this from another tack. Everyone keeps talking about how there are old clips whose ancient copyrights keep Eyes from being distributed to a new generation. Whether or not one agrees with this, let me point something out. Sonny Bono copyright extensions or not, Eyes itself was made only around eighteen years ago. Its rights rest not in the hands of Henry's descendants, but in the hands of his sisters - one of whom is older than Henry was. He passed away not due to old age but due to complications from treatment for lung cancer at an early age. So when you are advocating the distribution of Eyes, you're not just advocating the distribution of some fifty-year-old clip in contravention of the copyright laws - you're advocating the distribution of a piece of work which it took my uncle thirty years of his life to get made - and, were it not for lung cancer, he would likely be sitting here fuming at. This is not a dusty piece of should-be-public domain information.

If you truly think that Eyes on the Prize is so important that it should be freely available to anyone without recompense, then again, what is the motivation for the sponsors who originally supported Eyes on the Prize to do so again? What is the motivation for the filmmakers like my uncle, who work for pay and for art and duty, to do their jobs? Not out of fear for their legacy in years to come, but out of worry for their rights to their work if people can slap their work up on a website because someone has judged it 'too critical to let lapse' when they themselves are working to get it rereleased, without even asking if that's the case?

This isn't about money. This is about ownership, pride thereof, and control of one's creation. If Henry had had the money when making Eyes to clear the rights to those clips in perpetuity, you damn well better believe he would have. But he was operating on tight funding, and his choice allowed the movie to be made, aired and sold - if even for a limited time. His thinking was (from what he told me) that if the film was a success (and they didn't know if it would be) that later they could fundraise for additional rights clearances and re-issue the film. That's what is going on today, and that's what this protest movement is jeopardizing.

Posted by jbz at January 28, 2005 10:14 AM | TrackBack


I am glad you are commenting and reflecting on this so openly.

I understand your frustration much better after having read these last series of comments.

Although for me, the interest in this debate started what it was like to watch Eyes on the Prize. It was an earthshaking piece of film-making that changed how I saw the world. I think the world would be a better place (or America would) if as many people as possible saw the film. I want folks to acknowledge that fact.

I don't know whether it's "history" or not. But it was incredibly effective, in a way that nothing else was. Can you grant that? And that from that point of view, you can see why people might be excited to make it as available as possible for some of the reasons (I think) why it was made in teh first place?

And for some time, it has not been possible for people to see it.

I am just not sure that attempting to negotiate the current copyright system (which, as you well know, is not even the same system as 20 years ago!) is the best way forward.

I think it may be worth considering, at least, that the copyright system as it stands, does not serve antiracism or progressive movements particularly well.. it serves explicitly commercial purposes much better. I'm not sure what the alternative is, but now would be the time to think about it.

On a smaller point, I'm not sure that downloading a low-quality digital file would necessarily hurt your chances of a high-quality DVD with extras. First of all, they are downloading because there ISN'T a legitimate copy available, and many downloaders of this would likely buy it when it is available. ISn't all this interest possible proof that there is a real market for this?

Posted by: Larisa Mann at February 2, 2005 1:13 AM

I just want to say I support JB's views against how Eyes on the Prize is being used as an anti-copyright issue .

I can't even express how much that series meant to me, and I believe it should be seen in all schools and should run again on PBS. It's terrible that it's not available right now and this is indeed a problem. So I appreciate the sentiments of people wanting to make Eyes available but I question how much some of the anti copyright advocates care about Eyes on the Prize itself. Even for those who are very sincere about it and aren't just using it as a convenient test case, I don't think they are thinking through all the ramifications. It is really disturbing to hear that the folks advocating free downloading of Eyes did not bother to check with Blackside about what negotiations might be already going on to enable the complete legal relicensing and re-release of this wonderful series, which will enable it to be seen in future by the widest possible audience.

As JB says it is not just the big bad corporations that get ripped off by people advocating free copying of music or films. It is not cheap to make docs and it can take years and years of work. As he points out, if his uncle hadn't died prematurely, these copyright crusaders would be advocating ripping off the filmmaker himself.

In addition, the rights holders for the footage are a variety of entities of various sizes--not all huge conglomerates either-- and no matter who they are, they do provide services, such as storage in temp & humidity controlled vaults, film preservation and restoration of the original materials, cataloguing to make the footage findable, etc. None of these things are cheap either. Do the folks at downhill battle want to pay for these things themselves? Or are they counting on distributing free MPEGs as a means of preservation? Film, properly stored, has lasted in excellent condition for over a hundred years. Are they so sure about digital formats to say "let's throw out all the original film used in Eyes, since we don't want to pay anyone to take care of it?" (Which still doesn't address the cost of cataloguing. And what do they suggest doing about preservation and restoration of other important footage of the civil rights movement that was not used in Eyes? )

Cheri Pugh
Cataloguing Director
The HistoryMakers African American Oral History Video Archive

Posted by: cheryl pugh at February 1, 2005 12:48 PM

This reminds me of Bill Gates' open letter to hobbyists from 1976.(sorry, couldn't post as a link.)

Eloquently written J.B. I feel the same visceral pain for you and your family that I feel everytime I find the software I've written on a warez board and have to deal with it. For little guys like us, our rights to our creations really depend on general, widespread voluntary respect. In the case of warez boards, the disrespect is blatant. Here, it is a bit more convoluted, but is disrespect none the less. They didn't even bother to ask.

I am curious how you would feel about Eyes becoming the textbook example of copymob behavior, as in, when these do-gooders claim to respect copyright but not its excesses, Eyes will be the refutation of their claim of good intentions and these blog entries an annotated guide to how they work. I suppose you're not happy about that either, but that may be one of the responsibilities that comes with being a small rights holder, just as large right holders may just have to enforce their rights in court occasionally to keep foster respect for copyright.

Posted by: Brad Hutchings at January 28, 2005 12:20 PM
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