Copywrighting Our Way to Erasing the Past



February is Black History Month, but it seems history is becoming increasingly difficult to retell with any sort of consistency. Over time, artifacts from the past decay, and information is continuously fabricated in order to meet modern social demands. Our relationship with the past becomes more and more distant.But technology was supposed to make history more accessible, right? The advent of recording devices has made documenting history so much easier; now we can pop in a video and see for ourselves what truly happened. It would seem that the era of the American Civil Rights movement, in which African Americans circa 1950 to 1970 struggled to end racial discrimination and segregation, would be, given its temporal proximity, an easy history to remember. But unfortunately, technology cannot help us there … or can it? Eyes on the Prize: America’s Civil Rights Years (1954-1965) is an extremely comprehensive documentary series capturing footage from the American Civil Rights Movement. It originally aired on PBS in 1987 with six parts (“Awakenings,” “Fighting Back,” “Ain’t Scared of Your Jails,” “No Easy Walk,” “Mississippi: Is This America?” and “Bridge To Freedom”). Eight more parts were broadcast in 1990 as Eyes on the Prize II: America at the Racial Crossroads (1965-1985). This important historical document was produced over twelve years by Henry Hampton and his Boston-based company, Blackside, Inc. The film received over 23 awards, including two Emmys, the duPont Columbia Award, the Edward R. Murrow Brotherhood Award for Best National Documentary and the CINE Golden Eagle, to name a few. Clearly, film critics and professionals warmly received this work, but more importantly, its use as an educational tool was applauded by historians and educators alike. While the series documents landmark events such as the Montgomery, Alabama Bus Boycott and the assassination of Dr. Martin Luther King Jr., it also brings to light the efforts of individuals in a movement largely propelled on a grassroots level – a phenomenon that often goes overlooked in historical textbooks. Unfortunately, this documentary is no longer commercially available because it has faced a tangle of copyright issues on the photographs, television news footage, and music used in the documentary. Filmmakers must pay licensing fees for each copyrighted work – including songs, photographs and video clips – within the film. One scene in Eyes II shows Martin Luther King on his 39th – and, sadly, last – birthday, with his colleagues singing “Happy Birthday” to him. The 1935 copyright on “Happy Birthday” will not expire until 2030, and Time Warner, which bought the rights in 1988, owns the song until then. The writers of the song, Patty and Mildred Hill, are no longer alive, yet Time Warner profits off their creation – even though, in theory, copyright exists to prevent that from happening.The wide range of music in the documentary includes another 130 copyrighted songs, including Ray Charles’ “What’d I say” and Bob Dylan’s “Blowin’ in the Wind.” Rena Kosersky, the series’ music rights supervisor, has stated that this “music was a part of the movement in a way that you cannot separate.” Due to the costs of licensing fees, some of the archival footage only had five-year clearance, and executive producer Henry Hampton died in 1998 before renewing the rights. The licenses therefore expired, and the film has not been available on video or television since then. No one would argue against the historical importance of this series, and yet it is being kept from classrooms due to its increasing inaccessibility. Once the film’s licenses expired, commercial use was terminated – it could not be aired on television or released on DVD. While local libraries may still own the film, the copies are limited and the VHS tapes are slowly wearing out. Those teachers and librarians who wish to purchase new copies cannot – unless they are able to pay upwards of $500 for the rare set occasionally sold on or eBay. According to Patricia Aufderheide of the Center for Social Media (CSM), “we are crippling the story-telling of our own culture by the rigidity of our copyright interpretation.” Good news, however: efforts are underway to renew the licenses. Last year, the Ford Foundation granted Blackside $65,000 to assess those needs. Sandy Forman, an attorney for Blackside, claims that the majority of licensors have been cooperative, but apparently one isn’t so willing to negotiate. “One major music licensor has been a holdout. We’re optimistic that they will see the light.” According to one estimate, though, it will cost $500,000 to clear all rights. Forman may be optimistic, but others are skeptical about major music labels, many of whom have been known to sue their own fans. Regardless of one’s views on copyright law or filesharing, it seems clear that the restrictions on distribution of Eyes on the Prize hinder the artist’s intended effect – for people to see and be educated by this film. Lawrence Guyot, former leader of the Mississippi Freedom Democratic Party, calls upon “everyone who has access to Eyes on the Prize to openly violate any and all laws regarding its showing.” Some argue that it should be easier for a documentarian to create and release his or her work without the hindrance of exorbitant licensing costs. And this further creates a divide between low-budget filmmakers and those who have Hollywood’s resources. Pat Aufderheide and Peter Jaszi of CSM report on the many hurdles documentarians face, noting that “when a trademark appears on a baseball cap, or a subject happens to be watching television, or a radio in the background plays a popular song, or a subject sings ‘Happy Birthday,’ rights clearance becomes a professional and creative challenge.” The full report, titled “Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers,” can be found at A music activism organization, Downhill Battle, has seen the negative effects of what rigid copyright law can do to the music industry, and mourns its effects on the current state of Eyes on the Prize. Downhill Battle has therefore launched a project titled “Eyes on the Screen” ( in which they urge as many people as possible to hold screenings of the film on February 8 in order to make the documentary accessible to a nationwide audience. Initially, they provided torrent links to download the film online – which seems to make the case for the importance of filesharing, in that it gives large numbers of people access to historical information. However, Blackside lawyer Sandy Forman states that the torrent files were “completely unacceptable and illegal.”Lawrence Guyot, on the other hand, disagrees. “If people had stuck to the law,” he observes, “black people wouldn’t have the right to use restaurants and hotels. If people had stuck to the law, women wouldn’t have the right to vote. If people had stuck to the law, women wouldn’t have the right to own property. Our country has a history of laws that we are very proud we have moved away from.”But in an effort to avoid legal battles with Blackside, Downhill Battle took down the links. As a result, they are instead directing people to check out the movie from libraries. Case Library has two sets of the series available, and I attempted to organize a screening in Love Auditorium for February 8. Unfortunately, Media Services prohibited a public screening on the basis of copyright law – despite the exceptions indicated in the Fair Use Doctrine. According to, Fair Use “refers to an aspect of U.S. copyright law that provides for the licit, non-licensed citation or incorporation of copyrighted material in another author’s work under certain, specifiable conditions.” The doctrine attempts to “balance the interests of individual copyright holders with the social or cultural benefits that follow from the creation and distribution of derivative works.” As Holmes Wilson of Downhill Battle says, “if there is any fair use, free speech right at all, it applies to screenings of a historical documentary in a school.” In the meantime, you can check out the video on your own and watch it with a couple of friends (or however many people you can fit in your room).