By David Eisenberg
Production Manager, ITVS
An ITVS Production Manager offers insight on rights clearances, which can turn out to be some of the most consistently underestimated items in project budgets.
Working with archival material has always been one of the most challenging aspects of planning a documentary project. Locating the correct third-party material, identifying the appropriate rights-holders, and negotiating clearances for broadcast and other rights is often a challenge. And for a number of reasons, rights clearances are some of the most consistently underestimated items in project budgets.
In recent years, the rights landscape has become even more complex, especially for independent producers. Demand for archival material for use in Hollywood TV and film, as well as advertising has grown. As a result, many materials that have been until recently held in smaller collections are now only accessible through large, for-profit rights holders, who can be tougher to deal with.
ITVS-funded filmmakers are lucky, since they’re able to take advantage of special rates that we’ve negotiated with some organizations, such as CNN and Getty. But there are certain steps that all producers can take in order to minimize the time and money they’ll have to spend on securing rights to the materials that they need to tell their stories.
Kenn Rabin, a producer and accomplished film researcher recently visited ITVS and shared some strategies to help independent producers adapt to changes in the rights marketplace.
According to Rabin, consulting with an experienced researcher during pre- production is one of the most important things that filmmakers can do to keep their rights budgets under control. Beyond simply helping filmmakers refine their estimates for lab fees and licenses, researchers can also draw on their own experience to give producers a picture of the kinds of collections they will need to access to obtain the material they want to use. Knowing whether they’ll be negotiating with small private collectors or larger commercial organizations, university collections or public domain archives can help producers get a better idea of the time, effort, and expense that will need to go into clearing the rights for the material. It can also help them tailor their budget and production schedule accordingly.
Another suggestion that Rabin made was for filmmakers to plan their distribution strategy early on. Ideally, all rights should be cleared for all licensed material at the end of production – but this is rarely possible for a low-budget film. By knowing which rights need to be cleared immediately, and which can be cleared later, a producer can spread out the financial burden of clearing all their licensed material at once – and hopefully use income generated by earlier releases of their film to clear the rights for later avenues of distribution.
Using material in the public domain is another way to save money on clearances. However, producers should be warned that the rules governing what material is in the public domain can be complex. In addition, while there may be no license necessary to use these materials, access to the physical masters may be difficult or expensive to obtain. Producers planning to use small amounts of public domain material in their films therefore should determine whether the extra legwork involved is worth the free license.
Being smart about when it’s appropriate to use third-party material under a fair use argument can also help producers save money on clearances. While exercising your fair use rights are important , Rabin cautions that it can be tricky to know when and how to employ fair use. For more, please check out the video clip below: