Archival footage of key Canadian public figures is becoming too expensive for documentary producers, threatening the classically constructed historical film due to private ownership of images many might assume would be in the public domain.

As a result, older titles such as Donald Brittain’s The Champions (1986), about Pierre Trudeau and René Lévesque, have been withdrawn from circulation because footage rights have lapsed.

‘It’s an attack on democracy,’ says Michael McMahon, CEO of Toronto-based Primitive Entertainment, producers of the TV series Things That Move and Alan Zweig’s recent feature doc Lovable.

‘Owners often won’t license material for more than a specific period of time. After that, you have to go back and negotiate to keep your film in circulation,’ explains McMahon. ‘You have no leg to stand on once the film has been in circulation for years.’

Producers are finding that they have to pay higher rates, re-edit old films, or watch their past works disappear from view.

For his brother Kevin’s 2002 film McLuhan’s Wake, the McMahons realized they could afford to clear the rights to only eight minutes of footage of their subject, media guru Marshall McLuhan.

‘The style of the film was driven by the limits on our ability to use archives,’ says Kevin. ‘I had to tell McLuhan’s life story through photographs kindly given to me by his widow, but the guy was an academic, not a mountain climber.’

And material from other countries can be prohibitively costly.

Elizabeth Klinck, head of the Visual Researchers Society of Canada, is keenly aware of the high prices of historical footage. She points out that stock shots from major private sources in the U.K. and France ‘can cost $50 to $80 a second, and for news material, it’s over $100 a second. Feature film material is over $4,000 a half-minute, and then you have to clear underlying creative rights for actors, writers and directors.’

The concept of ‘fair dealing’ has become a major issue for documentary producers, who have seen their budgets driven up by ‘E&O’ (errors and omissions) restrictions imposed by lawyers.

‘If I inserted a shot of Yonge Street into one of my films, most lawyers would advise me to seek permission of every merchant, billboard owner and advertiser on the street [in that shot],’ says Kevin. ‘And if I was not successful, they would insist that the shot be removed.’

Samantha Hodder, executive director of the Documentary Organisation of Canada, believes that, at least on paper, Canadian law is reasonable on fair dealing.

‘Somehow the trickle-down effect has not come to pass,’ she says, ‘leaving us with a situation where lawyers are editing our films to ‘reduce risks.’ Doc filmmakers want to reduce E&O costs and put that money back on the screen.’