ARCHIVAL SURVIVAL

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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: [email protected]