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Eyes on the Rights: The Rising Cost of Putting History on Screen

By Sheila Curran Bernard

In the summer of 1955, Emmett Till, a black teenager from Chicago, traveled south to Mississippi to visit relatives. Perhaps on a dare, the 14-year-old made a comment to a young white woman. For this, he was kidnapped from his uncle's home by two white men, tortured and killed. Images of Till's battered corpse, and the acquittal of his killers by an all-white jury, shocked the nation. Three months later, a bus boycott in Montgomery, Alabama signaled the start of the modern civil rights movement.

Thirty-two years later, in 1987, these images again reached the nation, this time through the PBS broadcast of Eyes on the Prize: America's Civil Rights Years, created by the late Henry Hampton and his Boston-based production company, Blackside. The six-hour series followed the Southern-based movement through to passage of the Voting Rights Act of 1965; its eight-hour sequel, Eyes on the Prize: America at the Racial Crossroads, expanded beyond the South and encompassed the Black Arts and Black Power movements before concluding with the 1983 election of Chicago's first black mayor, Harold Washington.

Eyes on the Prize told stories from within the movement through interviews with participants, and brought their words to life through extensive and authoritative use of archival stills, motion picture and music. Widely acclaimed, the series reached an audience of more than 20 million people and won numerous awards, including six Emmys and an Academy Award nomination. It was bought for classroom use by more than 40 percent of the four-year colleges in the US, in addition to thousands of high schools and middle schools.

Yet today, as has been widely reported, Eyes on the Prize is out of distribution. Old VHS copies can be found on library shelves, and educators with access may still use them. But the series can't be re-broadcast and new copies can't be made until the rights to much of the underlying footage and music are renewed. This situation is far from unique; documentary programs routinely go out of circulation as underlying rights expire. But the groundswell of support for the series' return has created an opportunity for those involved in the production (I was a producer on the second season) to highlight constraints faced by filmmakers today, whose use of archival material is increasingly limited by cost, terms of use and access.


Making Eyes on the Prize Today

How would a producer fare trying to make Eyes on the Prize today? The market for historical programming has expanded with the rise of commercial cable—venues including The History Channel were launched in the 1990s—and the development of newer technologies for home and now Web-based distribution. At the same time, commercial competition and changes in the funding landscape have forced production budgets downward, making it increasingly difficult for producers to afford archival materials or use them as effectively as they might like. Rather than drive stories, archival images often merely illustrate them, and producers hard-pressed for time may let generic or substitute visuals stand in for the real thing.

The fees to use these images, in the meantime, have risen steeply. Smaller collections and archives are being bought out by larger commercial outfits, such as Corbis and Getty Images, which "cater to commercial end users such as advertising agencies, and skew their rate cards accordingly," says Kenn Rabin, stock footage coordinator for Eyes I and archive consultant for Eyes II. Concentration of ownership, particularly when fewer sources control the bulk of coverage of a particular event or era, limit a filmmaker's ability to find alternatives or negotiate prices, which may vary according to subject matter, the fame of those depicted and the ways in which the footage will be used.

"If things get any worse in terms of cost, it will force many of us to never want to produce historical documentaries again," says Sam Pollard, a producer on Eyes II whose recent credits include 4 Little Girls (produced with Spike Lee) and The Rise and Fall of Jim Crow (produced with Richard Wormser and Bill Jersey). He describes a 45-minute program that he just completed for The History Channel. A look at black preachers, the film includes archival images of newsmakers including Father Divine and the Reverend Jesse Jackson.

The total budget for the program, Pollard says, was $190,000. Nearly 21 percent of that budget was spent on rights (broadcast, educational and home video) to use 17 minutes of archival motion picture ($27,000), three songs ($6,500) and stills ($6,000). Rights to use some of this material—including a 22-second film clip from King Vidor's 1929 feature film, Hallelujah!, for which Pollard paid $8,000—will expire in just four years. For the film to stay in circulation, he would have to renegotiate and re-purchase the rights—something few independents can do, especially when there's no guarantee that the investment will pay off during a second release.

Beyond cost, a filmmaker trying to make Eyes today would find it harder to access some of the material, says Rabin. ABC is now owned by Disney, and "many of us, including me, have been turned down for access to ABC footage that had previously been completely accessible," he says. "CBS is now administered by the BBC, which needs to vet all requests. NBC is probably the most accessible of the three networks, but because of cutbacks in personnel, requests take longer to process." Only some of the newsreels that contributed to Eyes remain readily accessible, he says. March of Time is now owned by Getty, although outtakes are available through the National Archives. And rather than transfer the Fox Movietone newsreel collection to tape, Rabin says, "Rupert Murdoch took the collection out of public accessibility and only now is some of it, in a limited way, returning to public access."

Filmmakers and researchers can no longer go into the archives and screen footage, as they did during the production of Eyes. "All you can do now is call the archives, give them the list, and try to be as specific as you can," says Pollard. At some archives, employees know the material well. But often, assistants at computers punch in key words and whatever comes up is what the filmmaker has to work with. "If you're looking for broad strokes to create sequences where you're not sure what you want until you see it, you're really out of luck," Rabin notes.

What this might mean to somebody trying to create Eyes today is difficult to pinpoint. But as an example, critics often applaud the series' interweaving of present-day interviews with footage that shows those same individuals participating in the history they're remembering. Some of these finds happened because Blackside researchers--who had read through the history and studied photographs beforehand--recognized in the footage the faces of local activists (including then schoolchildren). At other times, they discovered footage of an event that had been broadly labeled or even mislabeled. Key words won't reveal these kinds of surprises.


The Soundtrack of History

Perhaps the biggest change to occur between the production of Eyes and the present is the increasing difficulty and expense of using pre-recorded music. Music plays a number of roles in historical documentaries, from being part of the story and a reflection of contemporary culture to advancing a program's themes and mood.

"For Eyes, the music was part of the story," says series senior producer Judith Vecchione. Series associate producer Judy Richardson, a former activist with the Student Nonviolent Coordinating Committee (SNCC), elaborates: "I don't know that you could have had a movement in the way that we had the movement without the music. Music took you outside of yourself. It made you feel that you were absolutely invincible. It made you feel that you were with this crowd of people—and it could only be maybe five people—but you were so united in singing."

Eyes on the Prize is filled with music, from songs captured in archival footage to an overlay of contemporary hits by artists including James Brown and Aretha Franklin. Some of the music is traditional and in the public domain. But there are as many as 130 pieces of copyrighted music in the 14-hour series for which rights must be secured. There are no standard fees, and costs have risen significantly over the years. An excerpt of a song that was initially licensed for $1,500, says Alison Bassett, coordinating producer on Eyes II, might today cost as much as $8,000. Clearing the rights can take up to six months or a year, if not longer, and few licensors will grant rights for more than a limited period.

Because of the time and cost involved, many filmmakers either restrict the amount of pre-recorded music they use or, as former Eyes producer Orlando Bagwell did on his recent Citizen King (produced with W. Noland Walker), avoid it completely and instead commission original scores. Some filmmakers take advantage of PBS licensing agreements with major publishers and use pre-recorded music for the broadcast, only to replace it with composed or production library soundtracks (or stock music) prior to distributing the film for school or home use.

"You have to evaluate the importance of the project," says Rena Kosersky, a music supervisor on Eyes and many other historical documentaries. "If this is the way we have to get it out there, okay, we comply—but it's pathetic." When she can, she tries to help publishers understand the use of their music in historical films. "Their song relates to history, comes out of a certain period, and my effort is to always exploit the music in its true environment so people will really understand the song," she says. "It's part of our cultural heritage, and it's not being used for commercial purposes, it's being used to document history." Some publishers are sympathetic, while others look at the bottom line: Music rights are big business.


Toward the Future

About a year ago, the Ford Foundation (which helped fund production of Eyes on the Prize) made a grant of $65,000 to enable Blackside to evaluate the rights situation and estimate what it would cost to bring the series back into public view. "There was concern, or recognition, that there were generations growing up who hadn't had a chance to experience the series," says Bagwell, now a program officer at the foundation. He adds that for young audiences in particular, stories of the children in Birmingham or the SNCC students offer "a sense of their own potential and their own power to be actively involved in change." Beyond that, he says, it was hoped that the situation facing Eyes might prove useful in advancing a larger conversation about the value of certain projects to the public—not only as they document history, but as they themselves are a record of the moment in which they were made—and the need to find ways to make these films possible.

As difficult as the rights situation has become for established professionals, Bagwell says, it's nearly impossible for newcomers. "The new generation of filmmakers either will try to use materials without getting the license or will just avoid making films like that at all," he says. "And that's a real problem—when we stop allowing each generation to be actively involved in interpreting and reinterpreting history."

Archival experts for Blackside, including Kosersky, have begun contacting rights holders to gauge availability and cost, and the results so far are encouraging. "Some have given us quotes that we're not thrilled about," says Sandra Forman, a lawyer for Blackside and project director for the renewal. "But no one so far has said, 'No, we won't license the materials.'" Ultimately, it's hoped that music publishers will agree on a "favored nations basis," in which no single rights holder is paid any more for the same terms than each of the others is paid. Given the high level of support for Eyes, Forman and others involved say there is reason to hope that negotiations will permit the entire 14-hour series to be re-released for PBS broadcast and educational, non-theatrical markets in the US and Canada, in perpetuity, with most images and music intact. (A home video release would be funded separately.)

In the meantime, groups including American University's Center for Social Media have begun bringing filmmakers, archivists, rights holders and others together to explore ways in which the rights of property owners (a label that also includes filmmakers who own their creative work) can be respected while also recognizing that the images and sounds of America's history are a part of the nation's heritage, and that a greater good is served when these materials can be accessed, for reasonable fees, by those whose work plays a role in advancing the public's understanding of that history.

"It's all about property," says Bagwell. "And therefore everyone has to negotiate their perceived share of that property, and how they can feel. They might not get rich from it, but they feel that their stake has been dignified and acknowledged, and can be a part of the larger equation. That's not going to be a simple conversation, but I think it's essential."

In addition to Eyes on the Prize, Sheila Curran Bernard's credits for Blackside include America's War on Poverty, I'll Make Me A World and This Far By Faith. An Emmy and Peabody Award-winning filmmaker, she has been appointed the Anschutz Distinguished Fellow in American Studies at Princeton (fall semester 2005) and is the author of Documentary Storytelling for Video and Filmmakers (Focal Press).


Sidebar: Archival 'Eyes': The Henry Hampton Collection

While Eyes On the Prize may not be back on the air until 2006 or later, the series and all of the elements that went into its production (as well as those that led to the creation of Blackside's other programs, including America's War on Poverty, The Great Depression, Malcolm X: Make It Plain, I'll Make Me a World and This Far By Faith) are available through the Henry Hampton Collection at Washington University in St. Louis, Missouri, Hampton's alma mater.

The collection is unique in the range and complexity of its holdings, says David Rowntree, Special Media Collections Archivist. "A lot of media archives tend to have just the finished programs or maybe a couple of rough cuts or some of the smaller elements," he says. In contrast, the Hampton Collection includes "everything that was created or gathered in the production process, including the outtakes, photographs, music, producers' notes, scripts, rough cuts, stock footage, internal and external correspondence, you name it. We really have Blackside, the history of Blackside—its internal library, book library, video library and so forth."

Archivists, historians, and filmmakers have already begun exploring the collection, Rowntree says. Recent film clients include former Blacksiders Bennett Singer (Brother Outsider) and Orlando Bagwell (Citizen King), as well as Bobby Houston and Robert Hudson (Mighty Times: The Children's March).

Broadcast films, outtakes and research materials may be searched. To use any images in their own programs, however, filmmakers must first clear rights. Footage that was shot by Blackside, and the use of sequences (of any length) as edited for broadcast by Blackside, are subject to Blackside's copyright. For all other material, the Hampton Collection offers records to help identify rights holders.

Perhaps surprisingly, some rights holders may no longer have master copies for duplication. "Increasingly, we're finding that the copies we have [in St. Louis] are either the best quality or the only surviving copies," Rowntree says. In that case, once a filmmaker has been granted permission to use an image, he or she would go back to the Hampton Collection to get a physical copy. Rowntree notes that when they are able to provide footage, they can often do it for less than others might charge.

More info on the Hampton Collection.