This is what I do for a living... Keep people from doing what I'm about to do. Steal someone else's shit.
Friday, July 8, 2005 (SF Chronicle)
My colleague just to the right, Leah Garchik, mentioned a few days ago that, in the new movie "Bewitched," the Transamerica Pyramid had been airbrushed out of the San Francisco skyline because the building is a registered trademark, and the filmmakers either could not or did not secure the rights to display its image.
Well, that seems silly. I mean, there it is, big as sin and taller than Coit Tower. Do we have to pay Transamerica every time we glimpse it? Do I have to pay Transamerica every time I type "Transamerica Pyramid"?
Here's a more relevant question: What are the chances the Transamerica would use its high- priced lawyers to sue a major film studio over a skyline shot? Doesn't matter. Filmmakers are required to carry "errors and omissions" insurance, which guarantees that the distributors and/or theater owners, DVD makers, television networks or whatever will not be liable for infringements of rights. Insurers, who want to cover their butts and have no particular investment in the quality of the film, set high and rigid barriers before they will issue such insurance. Which means everything, everything, has to be cleared. Logo on a baseball cap? Needs clearance. Music playing on the radio? Clearance. Clips from TV shows? Clearance. Did you know that "Happy Birthday" is still under copyright, and the estate of the composers routinely charges $15,000 to $20,000 for one verse? (ed. note... I work for the company that "owns" "Happy Birthday," and I ain't gonna tell you the kinds of rates we charge, but I'll say he ain't too far off...) Ditto "God Bless America," which is owned by the Irving Berlin estate, described by one filmmaker as "notoriously hardbargainers."
This is the golden age of the documentary, with movies about basketball wannabes and spelling bees and misguided war policies and dance contests making a splash at the box office. But it is also the leaden age of the documentary -- documentary producers are saying that rights and permissions accounts for more than 50 percent of their budgets.
We all swim in a media soup. Advertising jingles, slogans, trademarks, popular songs, iconic images; they're part of our lives. From the Pillsbury Doughboy to "Go ahead, make my day" -- it's part of the air we breathe. Documentary filmmakers want to portray society accurately, which means acknowledging the great swirl of sounds and images that surrounds us. But because the world is now run by lawyers and insurance companies, they have to pay dearly to obtain the images that define our culture.
Two authors, Pat Aufderheide and Peter Jaszi, have prepared a report for the Center for Social Media, available online at www.centerforsocialmedia.org/rock/finalreport.htm. The problems it describes are brain-boggling. For one thing, rights holders are under no obligation to give permission. If one member of the chorus that sang the theme song from "The Jetsons" feels intransigent, too bad. That singer could also be dead, and the owner of her rights unclear, and then also too bad. If you want to use press-pool footage of a battle during the Iraq war, you have to find out who shot it and who broadcast it, and then you have to figure out who bought the company that owns the rights, and then who bought the company that bought the company, and the very large company that has survived the mergers and consolidations can charge whatever it feels like because why not? If it doesn't gets its fee, so what?
And if, say, you make a documentary for television and get the clearances, and then if you want to issue a DVD, that's a whole other set of clearances. And God forbid you should want to release it in a foreign country, because those countries have different laws and you need to cover yourself there too.
And so forth. I used to think grant writing was the worst arts job I knew, but we have a new winner: the rights and permissions obtainer. The irony is that, with the digital revolution, information has become more and more fungible even as the law has become more and more restrictive. The lawyers are fighting on every front -- music downloading, DVD downloading -- and they are winning their battles, but I very much suspect they are losing the war. Which means that, to use the hypothetical question asked way up there, Transamerica might very well take the makers of "Bewitched" to court over unauthorized trademark use because if it failed to vigorously protect its property, it might drift into public domain and then some, I dunno, documentary film company could use it as its logo.
By the way, I do not own this column. I could not read it out loud on a documentary film unless permission was obtained from the Hearst Corp. If you reprint this column without permission in your church bulletin or hogfarmers informational pamphlet (ed. note - or blog?), you might be subject to prosecution. And since I get a cut of any fees paid for reuse of my column, I have a dog in this fight. Wait, I have two dogs in this fight, and they're fighting each other. Rather than using historical photographs, you could just have schoolchildren re-enact the battle of Gettysburg, while an actor paraphrases the words of Shelby Foote.
(Thanks Esme, for sending me my potential lawsuit!)