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Creative Free-for-all

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A historic experiment in film and media was all ready to take place before a battle erupted between producers and the union.

One of the observations Naomi Klein makes in her seminal anti-globalisation work No Logo is that the big corporations have got out of the 'making' business and into the 'selling' business. Instead of creating products to sell to you, they outsource increasing numbers of their production and concentrate on selling you the idea, the lifestyle (what branding managers call 'lifestyle').

Experience in consumer relations bears this observation out. Buy an Apple computer or fill your car with BP petrol and the amount of the production that had to do with the corporate headquarters of either company is probably minimal or nil. Manufacturing and assembly is done by a convoluted network of factories that offer the best price.

As such (so Klein asserts), the most valuable asset owned by the Nikes Microsofts and Coca Colas of the world is their brand. And the rise of hard-hitting international intellectual property law in the last decade (with the much-protested WTO's TRIPS agreement as the standard) reflects this.

So in today's world, copyright – legal protection of your idea or intellectual property – is just about the most important business asset you have whether you're producing shoes, cars or movies. Think that's an exaggeration? Call up one of the commercial TV networks and enquire about the process of licensing some of their broadcast content for use in your own production, and enjoy the protracted legal wrangling ahead of you.

Still, it's a good thing that intellectual property law is on the side of filmmakers. Whether you're Francis Ford Coppola or a kid with a handycam, the minute you start shooting, the law assures your ownership of the material. In fact, it's true across the spectrum of human creativity; even if you make character notes on a serviette (and you happen to feel like arguing over it in court), the law is clear – it's yours.

And in today's world where ideas, images, sound and moving pictures are transmitted across the world to anyone who cares to click on them, you'd think copyright law was more important than ever.

But an alternative is making itself known in the concept of the creative commons. When bass guitarist Steve McDonald of Red Cross re-recorded the entire White Stripes album White Blood Cells with a bass track and released it as Red Blood Cells, he'd done nothing wrong. Why? Bumping into Jack White at a function, he asked if White minded what he was doing. White didn't.

The creative commons is a means by which that process can happen anywhere, any time and with any material. Instead of the all-pervading All Rights Reserved of copyright law, creative commons works allow for Some Rights Reserved or even No Rights Reserved, which essentially means the material is in the public domain.

But how could you know where the fruits of your labour will end up? That was the question facing Michela Ledwidge, managing director of production company The Quality, which has an important stake in the UK based Mod Films, a company that experiments with producing remixable or re-usable films.

Ledwidge's project The Sanctuary, a motion picture graphic novel set in the near future, was all systems go (having received funding from the AFC), ready for shooting and subsequent release into the (mostly) copyright-free ether, where it's intended that anyone can then rework, remix, revoice or otherwise treat it for their own purposes.

It looked like a brave new world of content licensing before the Media and Entertainment Arts Alliance weighed in, barring its members from involvement with the project, essentially blocking the production from going ahead and threatening to send it offshore.

"The Creative commons is about an alternative to all the material that's out there and is essentially lost once it's released," Ledwidge says. "Where you have a film and then a game based on it, for example, most of those deals are made by lawyers; they say we want 'x' number of games or whatever. The Sanctuary is about keeping the story alive."

So can just anyone come along and use all the media assets, branding, characters and names from someone else's work and create their own entertainment product based on it, selling it with impunity? "Commercial interests are another thing entirely," Ledwidge says, "that's a different discussion. This is about a community of artists and producers building on the story."

But if other content producers are given free reign with the footage, voices etc of The Sanctuary, how does Ledwidge and the investors in the project know where those materials will end up? What if the cast ends up in a film promoting race hatred or doctored into a Paris Hilton porn clip online?

Just such a nasty scenario is part of the position taken by the MEAA in their action. MEAA national director Simon Whipp explained in the press recently how footage from a non-copyright work could be used in ads for or against abortion (or other positions the actor or technician wouldn't want to take). Whipp claimed that without fully knowing where the footage of themselves might end up, there is no 'safe way a performer can appear in this'.

It's a position understood by Ledwidge, but she's quick to assert that in the real world, the risk is worth the experiment to see what precedents The Sanctuary sets, if any. "It's a trade-off," she admits, "if your project is in the public domain, it could be misused. But the thing about most producers is that the simply don't have time to remix or reuse other people's footage. Most filmmakers are creative people who want to produce their own work."

But here's the strongest defence for the whole thing going ahead, and what appears to be the crux of the whole legal mess; all the MEAA actors signed on to The Sanctuary know fully well what they're getting into and have agreed nevertheless.

So isn't the MEAA presuming to know what's better for its members than they know themselves? When asked as much, the response from director Simon Whipp seems to say a little more about adherence to strictures than what many would consider common sense.

"The union is about setting minimum terms and conditions of engagement for all performers," he says. "What [The Sanctuary's producers] sought to do was in breach of that agreement.

"To accept your argument that individual performers should be able to determine their own conditions would be to totally negate the process [through which terms of employment for performers are designated]. There would be no minimum rates and terms of engagement for performers."

But to be fair to the MEAA, they oversee an industry increasingly fragmented by other fields, where constant convergence of media is the order of the day, and what might be accepted practice in one field (game development, for example, where Ledwidge draws a lot of the creative frameworks upon which The Sanctuary is based) might be strictly off limits in another.

In this case then, it would appear that the MEAA's area of jurisdiction simply overlaps other fields, but because card carrying union actors are involved, their influence naturally extends into those fields.

Not so, according to Ledwidge, who thinks they've done this sort of damage before. "I've learnt so much over the last month about all this, including how much local production the MEAA has killed because of this sort of attitude," she says.

But whoever's right, the multi-faceted aspects of the film have gone in Ledwidge's favour and all the original MEAA member actors are able to appear in The Sanctuary because of what she describes as 'a bit of a loophole'. The film started shooting in Sydney on the first day of May – ironically enough known to millions around the world as May Day, a celebration of the achievements of the labour movement.

It just remains to be seen how unprotected content makes it own way and performs in the world.

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