By Regina Austin

Confessions of a “Docuphile” Legal Academic

I suspect that my consumption of documentaries is fairly unusual for a law professor.  I have been integrating documentaries into my teaching for decades.  I use documentaries to supplement my first-year torts casebook.  For example, when I teach Linda Riss v. City of New York, a case involving the limited obligation of the police to protect victims of domestic violence, I show clips from “Crazy Love” which explores the plaintiff’s life both before and after the decision.  In my course on cultural conflict and the intentional torts, I make good use of social justice documentaries like “Who Killed Vincent Chin,” “La Operación,” and “Flag Wars.”  I also teach a law and documentary media course that covers the history of documentary film with an emphasis on law-related content (like “A Thin Blue Line” and “Señorita Extraviada, Missing Young Woman”) and legal issues impacting the production process (like consent and censorship).   Finally, we watch and discuss documentaries in my visual legal advocacy production seminar.    

Documentaries are a tremendous resource for augmenting the judicial opinions that are staples of the law school curriculum.  As depictions of reality, documentaries can transport the students back to the time and place where the dispute arose, the lawsuit was decided, and the parties had to live with the result whether they won or lost.  A documentary allows me to turn a case into the basis of a case study that contextualizes a legal issue in terms of institutions, social groups, and complex individuals struggling over scarce economic, cultural, and political capital.

In addition, documentaries are the subject of my scholarly writing and my students’ too, some of which has or will appear in this blog.  We use documentaries like research materials and sources of information.  We treat documentaries as the equivalent of reference books.  They are stored in the library or on my shelf for ready access.  It is really great to have the content immediately at hand.  A solid documentary collection allows a researcher like me to trace developments in the visual treatment of a social issue or controversy over time and territory.  Very rarely, if ever, are the social justice documentaries owned by the library and me shown in public or to the public.  They are typically screened in private (in an office, study room, or student’s home and on a laptop or television) or during a class session where they are the object of discussion.    

Though I personally buy many documentaries or request that the law library purchase them for its collection, I must admit that I cannot remember the last time I asked our media librarian to acquire a title from one of the major non-theatrical, non-home video distributors that serve the academic or educational market.  I am talking about the likes of Women Make Movies, California Newsreel, or Filmmakers Library.   Why?  Sticker shock!  The cost of a DVD from an academic distributor can run between $200 and $400. 

Yes, I have been tempted by the offerings of such distributors.  If one is looking for excellent documentaries with a feminist content, for instance, there is probably no better source than Women Make Movies.  Beyond that, it has a history of promoting women in the field.  Its catalogues leave me with the most regret.

Consistently of late, I look to documentaries available in the home video market to satisfy my requirements.  I do not need public performance rights or a special license to show them in class; the fair use exemption of 17 USC §110(1) allows me to do that.  I recognize that the topics addressed by documentaries that appeal to ordinary buyers may be limited and the quality of the content may be less challenging for pedagogical purposes.  Still, there is an enormous amount of law-related social issue or social justice content in distribution at home video prices or less if on the Internet. 

It is really disheartening and frustrating when you see a film at a festival, watch it on a broadcast platform, or read about it in a review and maybe even find it available for streaming from a commercial home video retailer, only to discover that a DVD version is exclusively available from an academic distributor at the usual price it charges for its films.  By the time the cost comes down or it is available outside of the educational context, you’ve forgotten why you wanted it or some other newer documentary has taken its place on your queue. 

While I realize that not every documentary purchase will turn out to be a wise one, the risk is greater if the purchaser has not seen the entire film or even a trailer before buying and has limited information in the way of critical independent evaluations.  I have found no source of reliable reviews aimed expressly at the law-related or social justice documentary consumer.  In such circumstances, it just seems more reasonable to take a chance on a documentary that sells for under $30 in the home video market than to make a blunder on one priced 10 times higher by an academic distributor. 

Furthermore, if you want to get lawyers interested in watching documentaries and producing advocacy videos on behalf of their clients, as I do, it makes sense to start dialogues around law-genre documentaries that are accessible to members of the profession. Similarly, students, who typically prefer narrative cinema, are more likely to be willing to give documentaries that are offered for sale by Amazon and Barnes & Noble or streamed on HBO or Netflix a look.  Of course, more references and greater exposure to work available in the academic market might expand lawyers’ and law students’ appreciation of less popular documentaries as sources of information and instruction about social justice issues.  Restricted access to such work by docuphiles like me, though, reduces the likelihood of that.

“I Get It”: Acknowledging the Explanation for Pricing in the Academic Market

I understand why documentaries marketed to universities and colleges are priced the way they are.   Grants and other forms of outside funding for production, post-production, and distribution, supplemented by revenue from festivals, independent screenings, theatrical release, and television and cable broadcast, typically leave filmmakers in the red or close to it.   If the demand or audience for a documentary is too small to generate the volume of sales that will produce royalties close to covering the remaining costs even if it is priced like a home video, the documentary will wind up in the academic market.   Also, filmmakers whose work garners theatrical or broadcast distribution generally hold on to the right to distribute in the academic market, a right they use to generate additional revenue. 

Academic distributors need to be able to market the films and have something left over for the filmmakers.  The distributors do provide documentaries that come with public performance rights (PPR), which, alas, I and other similar purchasers do not need, but cannot avoid paying for.   I am not really in the market for facilitator’s guides or additional digital material, either.  In any event, usage seems to play a role in justifying the pricing; because a documentary sold to a university or college is likely to have more viewers over a longer period of time than one purchased by a home viewer, a higher price is justified.  A distributor might even forthrightly say that pricing is based on the need to support and sustain independent documentary production suitable for the academic market.  In language close to a charitable appeal, one distributor put it thusly:

“Our goal is to make the film accessible to all types of organizations and, at the same time, generate enough revenue to keep our 501(c) (3) nonprofit organization alive and well. As independent filmmakers, we rely on your support to keep producing great documentaries and making them available to the public. All of the proceeds from our sales go directly into paying our staff, producing new content, and distributing it to you… . When you buy these programs, remember that a good portion of the price is returned to the producer in royalties, helping them to recoup production costs or invest in a new project.”

A media librarian at a major university told me that he indeed wanted to both support filmmakers and make their work available to library users, preferably at a price based on what library patrons and researchers actually used.  In lieu of that, media librarians, working in conjunction with distributors or their colleagues at other institutions, achieve cost savings by taking advantage of “creative” bulk packaging of related documentaries, consortium purchasing, and media purchasing events.  Unfortunately, such “discount” devices may not be accessible to individual schools, departments, and faculty that engage in decentralized documentary purchasing.  If the sources of funds for film purchases are decentralized, the purchasing will be too.  Using a centralized purchasing system involves time and effort that may conflict with the academic users’ teaching and research needs.

Academic streaming services (such as Alexander Street Press, Kanopy, or DocuSeek) provide an alternative distribution mechanism, but with some drawbacks.  The services tend to offer libraries the option of licensing digital content for a fixed term, after which it evaporates (unlike a purchased book or DVD which becomes part of a library’s permanent collections).  Perpetual streaming may be available but is quite expensive.  Finally, in cases where the user must be sure that the documentary will be available for screening or reference when needed, a DVD is preferable. 

The streaming services do have the advantage of collecting data on actual usage and allowing consumers (students and researchers) to access the material on their computers.  Furthermore, my informant reports that “some of the academic streaming services do offer discounts that may demonstrate cost savings,” such as discounts if the library already owns a DVD of the film.  He further asserts that he and his fellow media librarians “are most hopeful about the pay-as-you-go pricing models, which are commonly referred to as ‘patron-driven acquisition’ (PDA)” in that it tailors acquisition of digital content to the extent and nature of patron demand.  

It is not clear to me how PDA of streaming rights will adequately address the needs of those of us who consume documentaries in connection with scholarship and research which may involve extended and repeated viewing.    For such purposes having permanent rights to a film, in a guaranteed accessible form, seems much better.  Furthermore, it is generally wise for instructors to screen and evaluate a title before putting it on a syllabus.  I am not certain that patron-driven acquisition of documentaries does much to increase the possibility for, or reduce the cost of, one user or a small group of users previewing or streaming a film.   In any event, a library is unlikely to have an arrangement with every academic or educational streaming video platform whose content patrons might “demand.”

Clearly much thought, especially by media librarians, is being given to creative ways to make the documentary content available in the academic market more affordable and accessible for institutional purchasers and their students, faculty, and researchers.  I look forward to hearing about developments at this level.  Somehow I still doubt that my concerns will be fully assuaged.   

I Can Still Wish!

What do I want?  I want greater access to the social justice or law-related documentaries that are available in the academic market.  I want them sooner (after their release, broadcast or theatrical premier, or festival or special screening run) rather than later, and at purchase prices that are commensurate with my usage as a teacher and researcher.  I am not asking for home video prices which will not support independent documentary filmmakers producing quality work suitable for students and other academic users.  There must surely be room for something in between home video prices and the current academic rates.  

I want better information in the form of actual reviews about academic-market documentaries so I can make an informed decision about rentals and purchases.  With greater access, I in turn will be able to provide better information about such documentaries.  Better information will bring more law schools and other legal institutions to the market for quality law-related documentary work.   An expanded, better functioning market benefits me as the director of an academic center devoted to documentaries and the law. 

I can envision my law school or myself personally being a member of a cooperative or co-op of similar users who would be entitled to rent or lease streaming versions of documentaries that can be screened in class or for scholarly purposes (for reviews, discussion in articles and essays, citations, etc.), and previewed in advance of purchasing them, particularly in the form of DVDs, for use in teaching and research over the long term.

What I really want is more discussion about the availability and affordability of documentaries in the academic market and creative ways of getting the content into the hands of teachers and scholars in colleges and universities in a timelier manner.