Untold Stories: Collaborative Research on Documentary Filmmakers' Free Speech and Fair Use

The Untold Stories project, which began in 2003 and continues into 2007, evolved from a simple question about the effects of current copyright practices on creativity into a model for addressing free speech concerns about copyright. It combined the expertise and efforts of a law professor and a film studies professor, whose joint research (along with work by professional service organizations that adopted and built upon it) resulted in changes in industry practice.

Legal academics have been researching, from diverse perspectives, the social implications of increasingly owner-protective or "tight" copyright law and practices for some time.¹ Academic concern has increased with several factors: default copyright; industry consolidation making some media producers also archives holders; digitalization increasing concern over piracy; extension of copyright term length; and hardware and software approaches to conditioning access to digital materials.² Legal scholars have noted that tight copyright in a highly commercial culture amounts to censorship, since it bans quoting from most existing work without the permission of the copyright holder.³ Such concern has become a feature of cultural studies as well.⁴

The social implications of copyright law have been dramatized by magazines such as Wired, which typically poses the issue as a tension between white-hat geeks (the new knowledge elite the magazine dubs the "digerati"), who want to liberate information for free experiment, and black-hatted and behind-the-times copyright holders, who through hoarding and allegiance to decaying profit models stifle creativity. Understandably, consumer journalism has seized on two features of the debate: industry's claim of "copyright piracy" endangering the future of the American economy and way of life; and the decision by some artists and activists to violate the law in order to bring attention to the issue.

In this increasingly heated environment for discourse, concern over copyrighted culture has also grown among creative professionals, including filmmakers. However, most creative professionals are also zealous guardians of their own copyright and prize control of their work. Until recently they have seen copyright protection as a Faustian bargain that requires surrendering the ability to quote from anyone else's work without permission in order to protect one's own work against similar misappropriation. Public policy organizations concerned with the issue have for this reason often found creators a frustrating constituency. There has been a striking paucity of field data from creator communities in the evolving academic discussion of copyright and creativity. Creators who wish to participate in and contribute to the cultural marketplace, while exercising freedom of speech, have been presented few options.

The Untold Stories project was originally established in 2003 to discover how tight copyright affects documentary filmmakers. Researchers regarded documentary filmmakers as a particularly appropriate creator group because there is a large body of professional practice among creators who need both to quote others' work and to safeguard their own finished products. The project was a collaboration between two centers at American University—the Washington College of Law's Project on Intellectual Property and the Public Interest, headed by Professor Peter Jaszi, and the School of Communication's Center for Social Media, headed by Professor Pat Aufderheide. It was funded separately by both the Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation, between 2003 and 2007. The Ford Foundation and Grantmakers in Film and Electronic Media both provided further support.

The coprincipal investigators, Jaszi and Aufderheide, hypothesized that filmmakers' projects would be shaped around copyright concerns, most profoundly at the level of conceptualization. This hypothesis was eventually demonstrated and led to a second phase of the project, in which one remedy was created.

Over the course of a year, under the supervision of the principal investigators, graduate students both in law and in film production interviewed working documentary filmmakers whose work had been distributed on a national platform at least twice. National and regional filmmaker organizations helped to publicize the research and helped with the search for appropriate interviewees. Qualitative interviews, mostly by phone, were guided by a questionnaire and typically lasted about an hour or more...