ARCHIVAL SURVIVAL: The Fundamentals of Using Film Archives and Stock Footage Libraries By Rick Prelinger (Prelinger Archives, New York City) The last decade has been good to film archives and stock footage libraries. Increased interest in archive and library holdings has exposed many hidden treasures. At the same time, the artifacts have stimulated reexamination of this century's history and preconceptions. Some independent film- and videomakers make good use of these resources, but many others are intimidated by high prices, arcane policies and complex procedures. Here are a few navigational hints designed to demystify the process of locating and using archival footage. Many difficulties producers encounter in trying to locate and use archival footage can be avoided through careful planning and a willingness to be flexible. When starting any project that may employ archival footage, it is imperative to obey seven basic commandments: 1. If the success or failure of the production depends on the inclusion of specific scenes or images, determine at the outset whether the images actually exist, who holds them and whether you can afford to duplicate and license them. Some "famous" stock shots don't in fact exist, including Khrushchev's shoe-banging at the United Nations and the bespectacled 3-D movie audience (which are actually both still photographs). If feature film clips are necessary for your portrait of an activist actor, make sure that the actor's studio(s) will release the clips and get an idea of the costs involved. 2. Seriously consider hiring an archival researcher with expertise in the area of your production. Quite frequently researchers can find more alternatives more quickly for less money. Their experience can make them valuable collaborators and even reshapers of your original concept. 3. Negotiate your licensing deals as soon as you think you know the footage you want to use. Film libraries dislike extending discounts after a production is finished, and they have no incentive to do so. 4. Before your final cut, define your primary distribution media, markets and territory, and decide which rights you can afford to clear. As the number of distribution outlets have multiplied, rights have too. Contracts now cite such rights such "nonstandard television," "laserdisc," "pay-per-view", "audiovisual" and "multimedia." Territory is also a consideration in pricing rights. Distribution territory may be broadly defined to cover the United States or North America/Europe, or one may choose to narrowly target an audience, such as French-speaking Belgium. Many rights holders require full payment before releasing master material. A production with foreign sales or homevideo potential is useless if it must be shelved for want of license fees. 5. Get all the rights and clearances you need. In order to reuse certain footage, you may need to obtain special rights. This is especially important when reusing footage from feature films, television programs and musical and theatrical performances. Remember to clear music rights, get the consent of recognizable individuals appearing in the footage (or their estates), and possibly that of certain unions (Directors Guild of America and Writers Guild of America). Ultimately, you must decide between putting everything you want in your show and having it sit on the shelf, or clearing what you can afford and having a product to distribute legally. 6. Investigate the actual costs of research and duplication. Libraries charge for their research time and generally mark up duplication costs. Costs may be surprisingly high if the footage you need is dispersed in several repositories, if your editing ratio is high, or if master material is expensive to duplicate. 7. Filmmakers: choose your duplication format and, in cooperation with your lab, flowchart the handling procedure for different kinds of original material. The preproduction phase is the time to decide between negative and positive, 35mm and 16mm, B&W and color, and all other options. There are four principal issues involved in planning for archival productions: research, duplication, licensing and clearances. Research Film- and videomakers employing preexisting images will either need to do their own research or employ a researcher to find, clear and oversee the duplication of footage. Perhaps 250 individuals in North America make their living as film and video researchers. Many bring extensive experience and a bulging Rolodex to their assignments. Often these researchers can cut through red tape and find unseen gems. A researcher's assistance, if it can be afforded, is often decisive in making a show really work. The costs they save often exceed the price of hiring them. (See David Thaxton, "Some Thoughts About Film and Video Research", in FOOTAGE 89 (included with FOOTAGE 91) and Christine Whittaker's prefaces in the last two editions of RESEARCHER'S GUIDE TO BRITISH FILM AND TELEVISION COLLECTIONS, published by the British Universities Film and Video Council and available in the U.S. from Prelinger Associates, Inc., 430 West 14th St., Room 206, New York, N.Y. 10014; (212) 633-2020.) Budget considerations will force many independent film and videomakers to perform their own archival research, which is not a bad thing. There is no better way to refine your sense of a project than to peruse the holdings of an archive. On the way to finding the images you originally sought, you will see fascinating and possibly useful work. Though there is no substitute for experience, with practice most makers can learn how to find images. A good starting point for producers considering the use of archival or stock footage is to consult FOOTAGE 91: NORTH AMERICAN FILM AND VIDEO SOURCES (available from Prelinger Associates, Inc., 430 West 14th St., Room 4-3, New York, N.Y. 10014; (212/633-2020). We first undertook this project in 1986 because no comprehensive listing of footage sources existed anywhere. To date, this two- volume directory remains the only such list. It describes the holdings and policies of over 1,740 film and video sources and is intended to be a source of ideas as much as an index. FOOTAGE 91 comprises detailed descriptions of media collections ranging from the Library of Congress to the Minnesota Zoo. It also contains a directory of professional film and video researchers. FOOTAGE 91 has just been published as a CD-ROM disc for Macintosh computers, which contains the directory along with 35 other databases listing the contents of stock footage libraries, archives, distribution catalogs, and reference books. In addition, most commercial stock footage libraries and a number of institutions, such as the National Archives, make available free finding aids and fact sheets that detail their policies and procedures. Research also involves decisions relating to the cost and ownership of the images you may seek. For instance, should you attempt to license copyrighted footage or restrict your efforts to public domain (PD) materials? Under US copyright law, works may fall into the public domain for a variety of reasons, including but not limited to: expiration of a copyright's first (28-year) term; final expiration of the second (renewal) term; or publication (prior to 1978) without proper copyright notice. Many public domain materials may be physically controlled by libraries or collectors who charge access fees. There is no license to be granted, so when you pay someone for access to a copy of a PD work, you are simply entering into a contract with the owner of the physical materials. Public domain status does not relieve you from the obligation to fulfill the terms of the contract. You should review PD agreements with care and be satisfied that the images are indeed out of copyright. If your production will have high visibility, you may wish to research the relevant copyrights at the Library of Congress' Copyright Office or purchase a report from one of the companies specializing in copyright searches. Note that some public domain works may contain elements that must be cleared in and of themselves (such as proprietary characters, talent, music and underlying literary rights). Many PD films are not PD outside the United States. Excellent fact sheets are available at no charge from the Copyright Office at the Library of Congress (202) 479-0700. Especially recommended is Circular R22, "How to Investigate the Copyright Status of a Work." Although a great deal of highly desirable and rare footage is available only from commercial stock footage and newsreel libraries, there are still many opportunities for the adventurous researcher. There may be surprising holdings within government archives, local history collections, organizations and trade associations, attics and basements, and in the collections of other independent producers. Many of these collections may contain public domain material and make it available at reasonable cost. Although no list per se of low-cost sources exinse (whose media productions are in the public domain); organizations and trade associations whose mandate may include assistance to media producers; and certain archival collections. NARA's Motion Picture, Sound, and Video Branch el footage. Many items in this collection (especially those dating from 1950-67) can be dubbed by researchers themselves. Microfilm copies of the card catalog are available from NARA, and companies such as Film/Audio Services in New York City specialize in researching and supplying footage from this vast collection. Unlike almost all other archives NARA permits researchers to bring in their own equipment and dub videotape copies of public domain materials from the publicly accessible 3/4" and VHS decks. This policy has permitted broadcasters, footage researchers and resellers -- many employing Betacam decks and time base correctors -- to accumulate huge footage libraries. Unfortunately many of NARA's reference tapes are poor-quality screening copies. The experienced researcher knows free isn't always free. Although the vast holdings of NARA are available (with a few exceptions) to anyone for any purpose without license fees, research and duplication there can be expensive. It is generally impractical to view or procure footage from NARA without paying a personal visit to their research facility in Washington, D.C., or hiring a freelance researcher to do so. This may be out of reach for many independents, especially if they are far from Washington. NARA's duplication fees often tend to exceed those charged in other situations, only complete rolls are copied, and fewer technical alternatives may be available. For example, NARA's most recent price list quotes $475.00 for one hour of film-to-Betacam SP transfer, plus $34 handling charges for the first item selected and $7 for additional items. Duplication Plan duplication carefully and get an estimate before you authorize it, as it is very easy to overspend in this area. Some kinds of original material may be expensive to duplicate, and the cost of complicated orders may even exceed the cost of licensing the footage if different facilities (each with their own minimum orders) are used. In addition, archives may place certain restrictions on duplication due to rarity or condition of material. Most require that material be printed or transferred at laboratories of their choice. Almost all stock footage libraries require full payment of license fees before releasing master materials (clean videotape or unscratched film elements), releasing only time-coded tape or scratched film prior to payment. Some stock footage libraries offer film-to-tape transfers of less than broadcast quality. These can cost as little as $25 per hour, compared to $300-500 for airable transfers on a Rank Cintel or Bosch. This option should be considered in cases where image processing or manipulation is your goal and overall image quality is less important. "Reference-quality" video transfers have increased in popularity during the last few years, as they permit producers to transfer a great deal of material for editing only. If a time code reference (which doesn't necessarily have to be SMPTE time code) is burned into the image, tape can later be conformed either to film original or to videotape masters. Thus, many filmmakers, especially those working in the compilation genre, avoid the cost of workprint and unnecessary lab work by rough-cutting on videotape. Licensing A library or archive will generally require the user to execute a stock footage agreement and pay the appropriate license fee when master materials are ordered. Agreements should be reviewed with care, preferably by an attorney or other qualified individual familiar with licensing issues. (See Philip Miller, "Licensing Footage: Copyright and Other Legal Considerations" in FOOTAGE 89. Also see fact sheets provided by various stock footage libraries, available on request.) Independent producers often find navigating licensing procedures to be as difficult as coming up with the money for licensing fees. Adequate preparation can make weathering these procedures a good deal easier. Most libraries offer considerable discounts if a quantity of footage is used, and many will make concessions in return for an upfront payment. As soon as tentative footage selections are made, it is essential to talk money with the licensor. "It never hurts to try to make a deal at the head end," says Bob Summers of Film/Audio Services. "But don't try to make a deal at the tail end." Libraries have no incentive to offer a discount for quantity usage after a program is finished or aired, but they can be surprisingly flexible if approached early in a project. To an unschooled eye, all fee schedules appear to be excessive. Yet few producers realize how much time stock footage libraries spend preparing footage for jobs that either dwindle in size or fail to materialize. In this author's experience, perhaps one out of every four or five research requests results in a sale. This explains why commercial libraries charge between $25 and $60 per hour for research time, though many research costs are not recovered and research fees are often waived in the case of bulk usage. Summers, for one, believes there is room for compromise. Speaking of independents, he states that "People need to be able to sit down and maturely negotiate, and see where there's common ground." Many independents also see the minimum project fees charged by commercial libraries to be excessive. Jem Cohen, who has produced independent films, music videos and PSAs, feels that independents "who need only one shot are usually out of the range of a project minimum." Cohen proposes that such minimums, which can range from $250 to $1500 depending on intended media and markets, be waived in the case of independents who find themselves "needing something that you can't really fake." Stock libraries peg license fees to specific media and markets. A license for the educational, nontheatrical market generally costs less than network television. Cable (pay and basic), homevideo, world television rights (sometimes by specific territory) are all possible add-ons. Plan ahead as best you can; it is almost always cheaper to make one deal at the beginning than it is to renegotiate later. Bear in mind that methods of distribution are constantly evolving and being redefined. "All media" licenses are generally your best bet if you anticipate a long life for your production. A recent initiative launched by National Video Resources (NVR), a project of the Rockefeller Foundation, may help bring the cost of homevideo rights under control. Producers of public TV and educational programs who subsequently seek home video rights often have to return to libraries to relicense archival footage at a fairly high cost, according to Kenn Rabin, a Boston-based researcher who was archival film coordinator for EYES ON THE PRIZE and is now a consultant to NVR. For programs using a great deal of footage, such as the EYES series, relicensing sometimes necessitates a new round of fundraising. NVR's new program, called the Rights Project, seeks the commitment of major archives and stock libraries to offer homevideo rights to legitimate independent producers at a discount, if all rights are cleared at the same time. Gretchen Dykstra, NVR's Director, emphasizes that this initiative, which was officially announced in early 1992, is "mutually beneficial" to producer and licensor. Producers get a price break, and participating archives and libraries will increase their overall business. Most of the large commercial stock footage libraries are located in New York and Los Angeles. However, several large and many small collections are located between the coasts. These regional libraries are frequently involved in business other than stock footage licensing and may offer footage at dramatically reduced rates. Of the 260 companies identified in FOOTAGE 91 as "stock footage sales libraries," over 100 are regional libraries whose offerings include nature, wildlife, industrial, and local history material. What options can one consider when faced with a stock footage bill that's completely out of reach? First, don't give way to the temptation to use the footage without obtaining proper licenses. If you have entered into dealings with a commercial footage library, you can be sure they will follow your project and be aware of its impending release or airdate. Most libraries have experienced this situation before and will meet it squarely with the threat of a lawsuit. Most are willing to go to great lengths (including contacting distributors and broadcasters) to enforce their control over their materials. Second, be candid with your footage sources. Involve them in the progress of your production. Try to craft a payment schedule that relates to project income in some way. From their viewpoint, the "billable event" occurs either when they release master materials to a production or when the production is finished, regardless of whether or not the production is profitable. It's difficult to get an unsuccessful producer to pay an overdue invoice. Third, if all else fails, return master materials to their licensor and consider searching for appropriate footage elsewhere. If you end up using the same footage obtained from a different collection, prepare to prove this to the first source. Barter is another option for the producer with little or no budget. Labor, services or even outtakes can be offered in return for footage usage. Many stock footage libraries are very small businesses whose equipment and service needs may resemble your own. Some libraries, especially those specializing in public domain material, trade footage for outtakes, old films or other material suitable for relicensing. Clearances Many producers wish to use clips from feature films or well- known television programs because of their familiarity or iconic character. Unfortunately securing permission for such usage is neither simple nor cheap. Studio-produced product must be cleared through the studios' business affairs departments and hefty license fees are charged. Due to contractual or other restrictions, some clips may be temporarily or permanently unavailable for reuse. Studios also require prospective licensees to secure talent and guild clearances. The net effect may be to render feature (as well as music, dramatic or performance) clips unusable for most independents. When filmmaker Mary Lance cleared several feature clips for a film made to show only within the Henry Ford Museum, license fees ranged in the "low to mid- thousands" per brief clip. To clear feature clips for wider distribution, Lance says, is "astronomically expensive." An alternative in some cases may be to use public domain feature films or television programs. Again, producers should be aware that the determination of public domain status can be complicated, especially outside the US. The use of public domain footage doesn't relieve producers of the responsibility to clear talent, guilds, music and any underlying literary rights. It is prudent to seek the assistance of a good attorney in these matters. Recently many independents, especially experimentalists and activists, have elected to use copyrighted or proprietary footage without obtaining clearances. Due in part to the the impossibility of inhibiting home taping, this trend is dramatically on the increase. Some makers take refuge under the leaky umbrella of "fair use," citing historical, newsworthy or critical considerations, but such a defense cannot be recommended unless one has the services of a competent attorney. Most "footage outlaws" simply assume that no one will ever notice what they do. (For more details on fair use, see Sheldon Siporin, "When Fair is Foul: Fair Use and Copyright," October 1990, and Patricia Thomson, "Sleuth: The Search for Television News Footage," March 1988, in THE INDEPENDENT.) The flaw in this reasoning is that the presence of uncleared footage in a production quite simply renders it unairable and undistributable unless it is removed. If there is any possibility that the work will be distributed or broadcast, it is the maker's responsibility to obtain the required licenses for any preexisting copyrighted material used. Critically minded independents, historians and journalists may enjoy some insulation from the harsher provisions of federal copyright law -- but are you prepared to be a test case? Related issues further complicate the lives of makers. What are your responsibilities if you incorporate copyrighted images in modified form, whether reproportioned, reprocessed, or with "censor bars"? Strictly speaking, copyright law forbids unlicensed appropriation of a copyrighted work. However, many independents interpret this to mean that unrecognizable appropriation is permissible. As Jem Cohen asks, "If I zoom in on an incredibly grainy shot of one person's head in a crowd, is it morally okay, ethically okay? What is fair game?" Unfortunately, there is no clear answer to these questions. A parallel phenomenon exists in the pop music industry, where digital sampling of a voice or distinctive "sound" was tolerated until songs incorporating sampling rose high on the charts. Now sampling is raw material for litigation and public debate. At this point, there is little legal legal precedent to guide independents, but makers should simply be aware that unauthorized appropriation may not be acceptable for broadcast or distribution. In the past few years, hundreds of new libraries have opened their doors, existing sources have made it considerably easier to gain access to material, and standard licensing contracts have been torn up in favor of more flexible arrangements. Despite these trends, the stock footage industry still functions much as it has since the 1950s. Though new licensing perspectives and retrieval technologies promise, at least in theory, to streamline footage research and licensing, those currently seeking archival footage must still learn how to make the system work for them. Copyright (c) 1991 by Richard Prelinger. Reprinted with permission from THE INDEPENDENT, October 1991. For further information, email: footage@well.sf.ca.us .