November 1962: Abraham Zapruder purchases a Model 414 PD Bell & Howell Zoomatic Director Series Camera. One year later, on Nov. 22, he loads it with Kodachrome II Safety Film and rushes to Dealey Plaza where he captures the assassination of John F. Kennedy – perhaps the most controversial 5.6 seconds of film in recorded history. Zapruder, a dressmaker by trade, dies in 1978, and rights to the film pass to his family.

Flash forward to April 1997: A lawsuit is filed by the Assassination Archives and Research Center and Baltimore’s Passport Productions which ties up the Zapruder film in litigation for two years. In the court documents, the producers claim they had wanted to use the film in a documentary about Kennedy’s death, but said the fee attached could cost them as much as $15,000 for every broadcast.

The government of the u.s., under the auspices of The Assassination Records Review Board, declares the Zapruder film property of the people of the United States, and effectively confiscates the film.

The goal of the suit was to have the ownership of the film transferred to the public, so that the fee attached would allow for more reasonable access.

It didn’t work out that way.

Currently, the u.s. government is the proud owner of one can of Kodachrome II Safety Film, but none of the intellectual rights attached to it. They’ve effectively become the custodians of the film, without being able to license it to filmmakers.

Producers cringe at the fees commercial stock footage houses attach to clips, and see public institutions as the solution. But, as was witnessed in the Zapruder case, sometimes public archives don’t provide the fix.

Stalking niche

Increasingly, public and institutional archives are trying to carve out their own niche in the stock footage market. Part of this revolution can be attributed to the Internet and well-marketed, comprehensive reference guides, which are bringing non-commercial footage sources to the attention of international users. But mostly it’s a function of economics. Public depositories have to be profitable to self-perpetuate, because money for film archives is usually the first thing to go when budgets get slashed.

A needle in a haystack

Unfortunately, it appears few non-commercial archives have the infrastructure in place to deal with demand.

‘The university archives are not set up for sales,’ explains New Jersey-based rights-clearance/research agent Jessica Berman-Bogdan. ‘They don’t really have a sales staff, and so trying to do things from afar is very difficult because you are relying on people who might not normally service stock footage sales.’

On top of that, she explains, the systems in place do not lend themselves to film research. ‘A lot of good data-basing systems are not very efficient for reuse situations.’

Berman-Bogdan and others attempted to address this problem at last December’s AMIA Conference (Association of Moving Image Archivists) in Miami by explaining to the public archives what end users are looking for.

‘Their method of cataloguing is very different from the needs of the stock footage users. So, we’re basically trying to inform them about what we need, how we use it, and why we use it.’

One of the keys is creating an understanding about the need for accurate cataloguing. For example, many archives don’t distinguish between the date a reel was accepted into the archive and the date it was shot. Some don’t record information about personalities. Some fail to note whether a film is a documentary or a newsreel, or a recreation or an actual event, all of which are important for filmmakers to know.

An increasing number of public stock footage houses are deciding that the solution is to forge alliances with commercial houses, as Washington’s public television station, weta, did last year with the WPA Film Library.

Matthew White, president of the wpa, believes that ‘ultimately, the archives are becoming valuable to the point that any substantial archive that is in demand will be commercialized to some extent.’

For White, the extra time and money required to pull usable footage from the public archives is worth it. ‘I think that the real history of the country and the world resides, in many ways, in some of these hard-to-access institutional archives right now. There’s ultimately a lot of reasons to go into them, although it’s harder to do that than go into one which is already all catalogued and transferred and ready to go.’

Other than cost, the main reason to explore public archives is selection. The fast turnaround time offered by commercial archives often comes at the cost of variety, as the archives generally give preferential treatment to what’s in demand and will provide the greatest return on investment. What sells gets the attention.

Larry Aubrey, vp of East Coast sales at L.A.-based Energy Film Library, sees the role of the commercial houses as ‘to try to get the most frequently requested, best-selling material as organized and accessible to their client base as they possibly can.’

Fast turnaround is the key, so if producers want unique footage, it might mean turning to public and institutional sources.

White agrees. ‘The core difference between a private and public archive is that a commercial archive is a for-profit organization, so their first priority is the customer. A non-profit archive’s mission is generally to preserve history and make that material available for all time.’

A question of time

Whether due to selection or finance, more filmmakers are turning to alternative sources for footage. Ron Mann of Toronto-based Sphinx Productions has been working on his latest film, Grass, for almost three years, and has combed between 300 and 400 libraries for shots.

‘At a certain point with documentary films,’ he confesses, ‘you run out of energy or you run out of time, and three years into this film, I’ve run out of both. That’s how it stops. A film never really ends.’

Mann has delved deeply into public archives for this film and other compilations, such as Twist and Comic Book Confidential.

‘If there is any advice I’d give to filmmakers, it’s that you cannot get things right away from a public archive.’

Requests from public and institutional archives can take up to two months. According to Berman-Bogdan, it’s a simple question of bureaucracy.

‘You have to first send in for an estimate, and then they send you back the costs. Then you have to prepay. Then you have to wait for them to pull the reels and do the whole laboratory process. It also takes time for some of these smaller archives because they need to find a lab, and figure out how to set everything up.’

Mann suggests there might be some ways around this problem.

‘What you discover is that there are shortcuts… [like] paying them off. They take bribes. I’m not going to name names, but you can get things through a lot quicker if you really know the system.’

Berman-Bogdan, however, suggests that public archives also respond faster to requests from people with whom they’re familiar, and therefore local filmmakers and agents sometimes go to the front of the line.

It costs how much?!?

Producers turning to public archives quickly discover they’re playing under a whole new set of rules, and it can play havoc with their bottom line. The basic problem is that non-commercial archives have the odd notion that they should attempt to preserve the footage in their care. This causes difficulties for filmmakers.

Explains Berman-Bogdan: ‘Oftentimes, they can’t make smaller clips out of a larger reel. It’s really against true archival practice to do that.’

In other words, even if you only want a three-second clip from a film, you usually have to pay for and take the whole reel.

Almost all institutions will also require filmmakers to pay for a duplicate copy of the film they are working with, regardless of the length of the original reel, or the length of the clip they need. That can easily run to extra hundreds or thousands of dollars, depending on the length of the original roll. In the National Archives, for example, most of the footage is stored on 1,000-foot 35mm. Every clip will require a duplication of that full roll, unless you’re lucky enough to have asked for something someone else has already used.

A historical archive’s requirement for a duplicate copy is a reflection of their mandate. ‘If their mission is to preserve,’ says Berman-Bogdan, ‘and if the material is starting in some way to hypo or decay, or have nitrate deterioration, it is incumbent upon them, before they make copies, to preserve it. You’re paying to preserve it if the negative has some problems. You might have to make a dup neg, or a fine-grain print at your cost, and then on top of that pay for your copy as well.’

Mann made several unpleasant discoveries while working on Grass, which deals with the stereotypes and social mania surrounding marijuana. Mann and his crew have spent a great deal of time exploring obscure sources. In one archive, they found a film called (strangely enough) High, which contained clips which would work perfectly in their production.

When the film was deposited in the ’70s, it was the institution’s policy only to make safeties of the first reel. They would also not do paper selections, so Mann had to pay to have a dup neg of all the reels made, and then a protection master, and then had to edit the entire film for the few shots he wanted.

‘In the end,’ says Mann, ‘your five-second shot, which would normally be a few hundred dollars to pull, may be about $10,000.’

Mann ran into this difficulty several times. On one occasion, a 20-second shot from a public domain movie was going to cost him $10,000. ‘Physical property becomes an issue,’ Mann has decided, ‘not [just] intellectual property.’

The filmmaker has also seen the cost of footage rise since his last compilation film. Footage for which he paid $2,000 in his 1992 film Twist would now cost $6,000, and rights to use the footage in electronic media such as cd-roms would tack on another few thousand. Unfortunately, considering Mann’s main focus is features, he has also noticed a huge rise in prices when the archives hear the words ‘theatrical documentary.’

Now that you’ve

got it…

Once you’ve found and paid for it, the condition of the film can also be a problem. ‘If it’s been sitting there deteriorating,’ explains Berman-Bogdan, ‘parts of it might not be usable. If it’s been improperly stored for several years prior to the accession into a university archive, the heads of the reels might have deterioration, but the middle might not. There are all sorts of things that come into play, and it really depends on climate control and what they’re doing.’

The only way a filmmaker can be certain they will be able to use the footage is to go and look at it.

Even if you’ve used the film before, it doesn’t mean it’s still functional. ‘Something you accessed several years ago might not be in good enough shape any longer,’ says Berman-Bogdan. ‘That’s why producers should welcome the cost [of duplicates] to a certain degree, because what they’re doing is preserving it for the future. But that’s a hard pill to swallow. It’s a hard sell.’

But do you really have it?

As was demonstrated by the Zapruder case, rights to some of the films in the public archives aren’t accessible to producers. In the case of the Kennedy assassination film, the Zapruder family holds the copyrights to the original film, and they share the rights to the new digitally upgraded version with the wpa archive.

White only sees the rights issues becoming more clouded in the public arenas. ‘As the archives and the material become more valuable – which it is becoming – you’re going to have a lot more people claiming ownership of specific rights that are involved with the footage. It’s going to get that much more complicated for the producers, and I don’t know how this is going to shake out in the end.

‘It’s a labyrinth, and it’s always been a problem. Always,’ says White. ‘You’ve got a ton of different rights that have been argued for and won over a long period of time. You have rights of publicity, rights of privacy, music publishing rights, literary rights. The intellectual property rights can be split up into different territories, and into different terms.

‘And then, in addition to that, you have case law, which says that certain markets are able to do certain things within certain countries, and that’s going to affect whether things are public domain. It’s going to affect whether you can use the image of a celebrity in a television show as opposed to an advertisement.

‘All of these things are all over the map. It’s a difficult system. What the researcher or the producer needs to do is identify the different rights that are inherent in the different pieces.’

One example of a possible pitfall is the Paramount Newsreels, which are stored in the National Archives. Deposited there for public use by New York’s Grinberg Film Libraries, the footage is not available for commercial use, nor can it be released without permission of the archive.

According to White, ‘when you go to the National Archives, they’re going to give you some sense of their gut feeling of what rights are held to that material. They need to do this in certain ways before they transfer the material off for you, but the transfer of the material to you does not warrant that they have the intellectual property rights. You have to sign a Quit Claim with them to get that material. You have to say that you will not hold them responsible for any problems. So going there often gives you access to a master, but then it’s still all over the map as to what may or may not be available.’

Berman-Bogdan recommends putting sufficient funds into escrow to cover any later claims against the use of the material and the film, because sometimes even due diligence doesn’t cover all the bases.

For Grass, Mann discovered the perfect shot of a blimp over the Washington Capitol Building in a film called World on Parade. The National Archives and Records Administration, where the film was stored, revealed that the rights holder was 20th Century Fox, so Mann wrote them for permission to release the clip. Fox wrote back, explaining that they did not, in fact, own the film, and he was free to use it.

In the spirit of due diligence, and wary of getting into anything which might raise eyebrows at his insurance company, Mann wrote Fox again.

Their reply surprised him. ‘They wrote me back,’ recalls Mann, ‘saying, `We’ve lost all the paperwork. We may own it, but now we have to deny you the right to use it because we can’t find the paperwork.’ In other words, nobody will ever be allowed to use World on Parade. To have this material preserved so that nobody can see it is quite insane.’

Mann, however, says due diligence can sometimes work in your favor. For his film Twist, Mann was denied the use of any Chubby Checker music by the now owner of the material, Avco Records. Eventually, however, persistence paid off, and Mann won a partial victory.

‘The only reason I got to use one Chubby Checker song was that the woman at Avco kept saying `No’ to me, so I sent her a dozen roses every week until, after nine dozen roses, she said: `Enough. I’ll give you one of your songs.’ You can’t explain this to filmmakers. It’s really just a matter of perseverance.’

In most cases, however, money in escrow should be enough of an insurance policy.

Clinton-mania: the

privates go public

In most cases, rights issues are not as complicated when dealing with public and institutional archives. Producers should be most wary of personalities and public figures. The vast majority of material in the public and institutional archives, however, is public domain – material which has fallen out of copyright and has not been renewed. These resources are available to anyone in the world, and many commercial archives have moved in to exploit this market.

‘There are a number of private archives,’ explains Berman-Bogdan, ‘who, as part of their business, have now gone out and mined the National Archives and made good Beta copies, or Digibeta, or whatever it might be. All the networks have done that. So, if you go [to the commercial archives], and you’re doing a big deal for other footage, you might as well access [the public domain footage], because you can have it tomorrow. You pay the same rate as their normal usage fee, which can add up to be relatively costly, but it’s fast. It’s done. It’s quick.’

The quality of public domain material that has been taken into the collections of private libraries will vary from archive to archive, however, so producers should not take it for granted.

So, do I eventually get to make my movie?

The difficulties and cost of pulling unique footage from non-commercial archives, observes Mann, is forcing some producers away from that footage, and by default, those moments of history.

‘Who suffers from this? Who owns our history? If I can’t afford to get material out of the Library of Congress, or nara, or if I can’t afford to go to abc or nbc… It’s getting harder and harder to tell the truth. That’s really the problem. Our history is vanishing as we speak. If we don’t have testimonials of what happened, then that history simply doesn’t exist,’ says Mann.

‘Eventually I will get up the mountain, because I’ve been there, and there’s a great view when you get there. But you can’t imagine the nightmare involved in this kind of movie-making.’

Some stories have a happy ending though. Mann wanted to use Bob Dylan’s Rainy Day Woman for Grass – the song where Dylan declares ‘Everybody must get stoned’ – but Dylan’s management refused the use. Mann appealed to Jeff Rosen, who runs Dylan’s affairs, and made him watch the scene with the song still in it. ‘Within a week,’ recalls Mann, ‘we got a contract that went from something like $50,000 [for the use] down to $1,000, because he believed in what we were doing.’

It’s not all doom and gloom, but the grass is always greener…

A version of this story appeared in RealScreen magazine.