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I am pleased to be here, speaking from the vantage of the makers and distributors of independent film and video. My organization, National Video Resources, was established by the Rockefeller Foundation five years ago to help these makers and distributors reach larger audiences with their work.
These film and video artists, and those that distribute their work, are an important constituency in their own right. I think you'll be interested in how the themes of this conference---the new technologies and intellectual property rights---have a direct bearing on how these artists might (or in some cases, might not) be able to access the new technologies to reach new and larger audiences. But also consider their story as emblematic of all other artists who work outside the commercial establishment, where internal resources are scarce and subsidy is common, where the earned income from an artistic endeavor almost never exceeds its cost, and where not for profit is as much a professional lifestyle as it is an IRS classification. Compared to those so called "information providers" with commercial aspirations and with corporate resources behind them, access to the new digital distribution systems by independent filmmakers and other artists like them is going to be much more problematic.
Independent filmmakers and videomakers---artists, activists, educators, historians---work on their own, editorially independent of the Hollywood and network television of big production and marketing budgets. In style, their films and videos are generally more personal, and reflect in content more complex realities; they also tend to give a voice to communities not widely heard from in the commercial media: ethnic minorities, women, gays and lesbians, activists, persons with firmly held points of view. Independent work is important precisely because it presents diverse views of reality and artistic experimentation not available in the mainstream media.
Independent film and video, as you know, is a misnomer---for makers of independent media are often totally dependent on a variety of sources to complete their projects: friends, relatives, foundations, sympathetic professionals for whom the words "scale" and "deferred payment" are common terms of employment, and occasionally the limits of the filmmaker's own credit card. In order to maintain the financial, creative, and artistic freedom that is so important to these filmmakers, what they are independent of are the commercial media and corporations, and the many resources these institutions command. This lack of corporate affiliation is one of the independents' problems related to the new technologies and intellectual property rights, as we will see in a moment.
But, first, the good news. The new technology---the hardware and the delivery mechanisms---promises in theory to give independent filmmakers a much needed opportunity to reach much larger and more diverse audiences. Video on demand, in particular, will provide an individual---in their home, school or business---with immediate, convenient access to a virtually limitless library of video titles. Interactive, packaged software formats like CD ROM offer exciting, new ways for filmmakers to use their story telling skills. Yet it is by no means certain that independent filmmakers will be able to take advantage of these technologies as soon or as fully as they might. Intellectual property rights are part of the problem; these issues, which pertain to every element of the filmmaking process, are more difficult in the environment of the new technologies. I'll mention a few: rights clearances, ownership, integrity of the completed work, and protection from piracy.
The first is rights clearances: Creating a film or video almost always requires the acquisition of elements from other sources, the terms of which are agreed upon by contract. Let me illustrate by showing you a brief three minute clip from a documentary that illustrates the issues surrounding rights clearances. It's from Color Adjustment, a film by Marlon Riggs and Vivian Kleinman which explores the behind the scenes story of how prime-time television was integrated with black actors and performers. You may have seen it on public television last year on the series Point of View.
As you watch this, imagine that you're an entertainment lawyer---I suspect not a big conceptual leap for many of you in the audience---and think about how many separate permissions (and perhaps payments) you have to secure in this brief clip.
[The segment shown to the audience contained footage from a Nat King Cole television show, interspersed with a number of interviews.]
My quick count is that 16 permissions were required, including the use of the clip of the television show (the source of the permission probably resides with either the original production company, the network, or with an archive which has bought the rights); for each of the two songs, you would need permission from the music publisher, with license fees to the composers and lyricists; from all those who were interviewed on camera (Tim Reid, Steve Bochco, Bruce Paltrow, Diahann Carroll, Herman Gray and Diane Reid) and most likely you would need permission to use the likenesses of the recognizable stars who appeared in the clip (Mel Torme, Frankie Laine and Nat King Cole himself).
For every new technology and market, independents have had to clear not only rights to the elements they use but also for the markets they intend to exploit, such as theaters, broadcast television, schools and other institutions, and home video. Now another market use is surfacing: "interactive, electronic media." What's an independent to do about this new market? I can imagine the following interior dialogue as he or she ponders the following questions:
Q: Will this new technology enable me to reach a considerably larger audience?
A: Probably in the long run, but the immediate future looks pretty dicey.
Q: What's the market? Will the financial return exceed my investment?
A: Who can tell for sure?
Q: My program has been cleared for all prior known formats, including broadcast and home video. Do I have the rights to enter these new markets?
A: If it's for video on demand or level one videodisc where the entire program is meant to be viewed intact, in the order it was originally created, the answer is a big maybe. Of the four attorneys I asked recently, two said yes, two said no. If it's for interactive multimedia formats, the answer is at least clear; but the answer is no.
Q: Does this mean I have to go back to all my original sources and renegotiate all these elements? All over again?
A: Very likely.
Q: I've got enough problems. Is it not time to stop asking all these questions and go and produce a film for the markets I understand and can afford to reach?
Here's where the difference between being a little guy (the independent) and the big guy (the Hollywood studio, the broadcast or cable network) is telling. When it comes to clearing intellectual property rights, the only similarity between them is the time and effort it takes to clear these rights. The bar is the same height for both. But that's the end of the similarity. For the independent, the financial reward is inevitably going to be less. His or her financial and professional resources are many fewer---no market analysts, in house attorneys, accountants and auditors. And because the product of an independent is often a personal and not a corporate project, the risk is arguably greater because of the inability to cross collateralize the risk over many programs or even between different corporate entities. Besides rights clearances, another issue is the integrity of artistic works---entire films or videos and of the individual elements contained therein. Many of the new technologies we have been discussing today allow the consumer to manipulate the film or other artwork in ways never approved, or even imagined, by the original creator. This issue reminds me of a rather cheesy horror movie I once saw called The Reanimator. It was a Dr. Frankenstein, mad scientist run amok in his lab movie, but with a twist. You know the original Frankenstein myth is much like the making of a traditional documentary. The filmmaker and his or her loyal assistant venture out of the lab to collect photographs here, some stock footage there, an interview here, some period music there, stitch it together with some narrative and put a few bolts on the forehead with an underwriting credit plainly visible. "Behold, Igor. It lives. The film lives!"
While the traditional documentary is akin to Frankenstein, the interactive, multimedia business is more like the lesser-known movie, The Reanimator. This mad scientist doesn't assemble new persons, he---how shall we say it?---disassembles human bodies and gives the components independent life. My favorite line from the movie (actually, the only one I remember) was spoken by the scientist as he watched the various limbs and organs scurrying out the door to do mischief on the neighboring hamlet. "Parts," he said, "I've never done parts before."
Multimedia and online, interactive systems are compelling precisely because they're in the parts business. However, it's one thing to license a complete film to be shown as the producer made it. It's another where elements can be excised from the original by the user and re ordered, altered, sampled, morphed, replicated, and re animated. This seems to me a serious legal and artistic issue.
A third issue is ownership. Filmmaking is a highly collaborative art form. Instead of a single artist (a writer, sculptor or painter, say), producing a film involves a small army of creative collaborators and highly skilled professionals and technicians, not to mention funders and financial backers. Ownership and control of the intellectual property can be an issue, compounded when a film or video is transformed into a CD ROM or other new multimedia product with a whole new set of professionals (interface developers, programmers, graphic professionals, etc.) whose own unique creative contributions to a project may well equal that of the original filmmaker.
The final issue I'll touch on today is one of protection against piracy. Here I'm less concerned for the independents. It's not that they're oblivious to the issue of piracy, by any means; they expect a fair return on the sale of their work and every scarce dollar they make is earmarked for their next production. Yet I think most are less worried about limiting audiences in order to protect profits than they are about expressing their own vision to as large an audience as possible. I'm also fairly confident that effective anti piracy systems (digital encryption and others) will be developed by those commercial concerns who are compelled to protect large profits. The big guys' incentive will be the little guys' protection, with one important public policy caveat: These anti piracy systems cannot be proprietary and must be available to all.
Given these issues and the considerable intellectual property barriers in the way of independents using the new technologies, we at National Video Resources are exploring the following activities:
As I close, I'd like to reflect on how we have chosen to describe the new digital technologies that are the focus of this conference. Over the last year---and many times today---we have used the term "information superhighway." I don't know about you, but I admit to not liking that metaphor very much. One I do like I heard at a gathering I attended several months ago. More than does the image of a road building project, it speaks to me of the dramatic and pervasive societal shifts that will affect all of us as we become a digital society.
That metaphor is immigration. It connotes to me both the exhilaration and the anxiety we are encountering as individuals and as a society as we enter the digital age. It's as if all of us have set out on a virtual journey to a new country---call it Digital Land---where we must all learn new customs and a new language. The young among us will adapt most quickly, of course, and puzzle why the transformation has been as difficult for us elders. We will need to be trained and educated, perhaps taking digital as a second language courses at our local community college. But if we all really apply ourselves, with luck we can be the last generation to speak digital with an accent.
Thank you.