The Problem of the Anti-Commons in Filmmaking

Economists like to say that property rights are needed to foster innovation. But the evidence is piling up in one field after another that property rights have gotten so extensive that they are choking new creativity. The latest example comes from the world of filmmaking.

A new report by Patricia Aufderheide and Peter Jaszi of American University documents how the rights clearance process is crippling the creativity of documentary filmmakers. The report – “ Untold Stories: Creative Consequences of Rights Clearance Culture for Documentary Filmmakers” – draws upon interviews with 45 directors, editors and producers. The report finds that filmmakers must often make significant changes in their work because of the costs or complications of rights clearances. (A short film, available online, also explains the problems described in the report.)

For example, it’s common for film studios, photo archives, record labels and music publishers to deny a requested use of a work or to charge exorbitant fees. What makes this galling is that sometimes the “right” is stupidly trivial – a trademarked logo on someone’s clothing in the film, or radio music or television images playing in the background of a scene. Here are some examples of clearance problems encountered by filmmakers: