To start with, the focus will be on so-called institutional re-use, with EYE Film Institute Netherlands (hereafter: EYE) as a specific case study. EYE is the sector institute for Dutch cinema and the national museum for film. Founded in 2010, it is a merger of four other institutions, including the former Nederlands Filmmuseum.Footnote 1 EYE has had a long interest in found footage film making. Not only have film-makers, such as Gustav Deutsch or Bill Morrison, been invited to work with the collection; numerous found footage films by film-makers such as Matthias Müller, Yervant Gianikian and Angela Ricci Lucchi as well as Peter Tscherkassky to name but a few, have been acquired for the permanent collection. ‘Found Footage’ was also the theme of the inaugural exhibition and corresponding film programme of the new building of EYE in Amsterdam in April 2012.
Austrian film-maker Gustav Deutsch can be called a film-maker without a camera since many of his films start on the editing table where he creates a new story from extant film material, a practice he has pursued for more than 20 years. A film archive can be seen as a birthplace, or as a place of rebirth; a place where cinematic heritage can become a rough ingredient for new films. Deutsch works firmly within the ‘institutional context’ of public archives, as opposed to other film-makers who re-use film footage that originates from outside of that institutional context, such as personal film collections, flea markets, video stores or the internet.Footnote 2
After he had completed the first instalment of his Film Ist. film series in the late 1990s,Footnote 3 Gustav Deutsch was invited by the Nederlands Filmmuseum to work with their material, and he was provided with an editing table for several weeks and unlimited access to the museum's film collection and preservation staff. The latter might need some clarification. Deutsch considers cataloguing systems too limited and too restrictive, as they tend to focus on such search topics as genre, title, year, name of the director, or a certain keyword. What Deutsch wants to find in archival film material is often so specific that only when someone remembers seeing a particular occurrence of it in a larger film, for instance, can it result in being retrieved. Personal contact with archivists and other archive staff members and the visual knowledge and memory they have of their collections is Deutsch's starting point, and as such the archive becomes a place of co-production rather than merely a place of research.
Film scholar Eric Thouvenel has argued that ‘famous films … have already been authenticated, that is to say, they are signed. Thus it is very difficult for found footage film-makers to inject meaning into the text or to say something about themselves'.Footnote 4 In order to tell his own story and convey his specific vision, Deutsch uses mostly non-canonical titles and (unidentified) film fragments. EYE can be seen as an institute with predominantly non-canonical holdings and specifically the Bits & Pieces collection turned out to be a wide-ranging source for Deutsch in the research and the production of his films.
Initiated by then deputy director Eric de Kuyper in the late 1980s and early 1990s, the Bits & P ieces collection at the Nederlands Filmmuseum is a ‘series of (generally) short unidentified fragments of film, preserved primarily on account of the aesthetic value of the images’.Footnote 5 The Nederlands Filmmuseum is the only archive to put these, otherwise to be discarded, unidentified film fragments together in order to present them and arguably, to challenge other archives in their presentation strategies. By deciding to preserve and present the neglected and unidentified fragments, De Kuyper also challenged the prevailing historiographic stance:
The reason why they are neglected is that they do not have, and can't be given, a label. … We don't have criteria to select them. … The result is that films, which cannot be labelled with the help of the notions mentioned, cannot acquire a historical identity. That means, literally, they do not exist for film history.Footnote 6
Later deputy director and film-maker Peter Delpeut has expressed it similarly by arguing that the Bits & Pieces were images that were not ‘presented as a well-reasoned and categorised history, but rather according to the principles that the archive thrusts upon its curious visitor: astonishment, disbelief and, as with anything that time has coloured with patina; nostalgia’.Footnote 7
An aesthetic reasoning to preserve films in order to build up a film collection rather than a historical one based on firmly established categories of written film history was ‘revolutionary’ in the film archiving landscape in the early 1990s, as recently reiterated by Mark-Paul Meyer, senior curator of EYE and long-time compiler of the Bits & Pieces.Footnote 8 Within other archives of the time, most notably at the Cinémathèque française, films were preserved after being hand-picked from a list of titles on paper by an external committee.Footnote 9 They therefore often followed the historical canon, which in turn, as a consequence of that practice was then solidly maintained. Film preservation on terms of the materials themselves was a new approach to film preservation and seeing the films as a condition for preservation became a standard at the Nederlands Filmmuseum.Footnote 10 What was also new in the context of the unidentified fragments was that the main preservation selection motive of the compilation of the Bits & Pieces was their aesthetic power, and moreover, the visual power was based on the museum employees' viewing experiences, personal insights and aesthetic taste with a quite arbitrary collection composition as a result.
Orphan works
Bits & Pieces as a collection of film fragments that started as an aesthetic experiment in the 1990s can now be seen as central to a legal debate around orphan works—works without an identifiable or locatable rights owner, and which pose the most obvious and particular problems in digitization and access efforts since permission for use cannot be sought. Unidentified fragments are pieces of film that are unidentified because often there is no complete, identifiable copy of the work available (which usually would include opening or closing credits with identifiable information). In such a case, a rights holder cannot be sought; often it cannot even be determined whether the film is still in copyright at all. As they are works that might still be in copyright, unidentified fragments can be seen as the epitome of orphan works.
In the early 1990s, there were no such labels as orphan works or the orphan works problem; for practical purposes the archival works in question were initially seen as devoid of any legal status. Orphan works as a concept is not a very new phenomenon; there have been copyright owners who are not necessarily easy to identify or to locate for a long time. It is, however, the massive scale of digitizing cultural heritage collections and the associated permission culture that has brought the orphan works problem to the surface quickly.
Legal studies dealing specifically with providing access to orphan works reach the similar conclusion that if the works cannot be used legally, the use may be prevented.Footnote 11 This is a conclusion that is not sufficient for the film archival practice, as productive and potentially beneficial uses could be hindered and the collections would remain dormant.
Copyright is of little relevance until it comes into play when a work is reproduced and/or communicated to the public, which in the case of found footage films means accessing the source films in order to re-use them in another work. Many of the clips pertaining to the Bits & Pieces collection have been reworked into both Film Ist. 7-12 as well as Film Ist. A G irl & A Gun. These films can be examined in order to unravel the relationship between copyright ownership, the exclusive ownership of the archive of the (often unique) film material and the human agency of its staff members. Unravelling that relationship will also reveal the cascading hierarchy between extant, available, and publicly accessible material, which is arguably important for the material's potential for history making.
Access to fragments
As part of a particular artistic intervention in which archival film is re-used or re-worked, the Bits & Pieces go to the core of the problem at hand: firmly rooted in a current legal debate as orphan works, they display that which in a film archive is often fragmentary, and as an extension, they highlight the role of the archive in the archival access debate. When re-used in found footage films, by highlighting the (latent) potential of the archive, the Bits & Pieces also underline the partial picture of the archive that is visible only. On the one hand there are legal restrictions at the heart of that process but on the other hand a consistently neglected and under-researched component as well: the human agency of the institution's archivists in (taking the risk of) making the material available despite the apparent legal restrictions.
There can be a dichotomy between the intellectual ownership and the physical ownership of archival material. Public audiovisual archives, own (but usually, hold on deposit) many physical works of film, whereas the copyright owner to these might be someone quite different. When a film archive does not know who the rights holder to a film is, consequently, they cannot grant by law a film-maker the permission to use the orphan work. This might pose creative obstacles to the film-maker wishing to re-use the material. The archive can, however, still grant the film-maker the ‘material’ permission to use it nonetheless, based on their exclusive material ownership of the source material and their human agency.
Copyright does not seem to be a restrictive issue in the re-use of the orphaned collection of Bits & Pieces despite the particular challenges orphan works tend to pose in digitization and re-use practices more generally. The clips have played a central role in terms of collection visibility and sales output of both the Nederlands Filmmuseum as well as EYE and have been re-used in numerous ways and in various projects, ranging from academic conferences to more commercial uses, such as DJ Spooky using them in his 2000 show ‘Les Vestiges’ (Traces) at the Louvre in Paris.Footnote 12 These practices, as well as Deutsch's example of re-using the unidentified fragments and orphan works more generally, firmly underlines the human agency of the institution's archivists in (taking the risk of) making the material available despite the apparent legal restrictions. Making moving image material available involves human agency. Even making orphan works available, works that seem to be gridlocked only legally, involves human agency and the institutions that control the evidentiary holdings actively shape access to some of the holdings.
So far, Deutsch has not encountered any resistance to using material that was orphaned (nor in relation to using material that was not in copyright any more, for which he therefore solely needed the approval of the respective archive as holders of the physical material). The film-maker's practice reveals that behind an initial legal layer, some of the economic factors of archival access and moreover, the human agency of the film archive's staff in deciding to make material accessible, play an under-researched role.
Deutsch's creative obstacles were always in relation to rights owners or owners of the physical holdings either refusing their cooperation or slowing down the process of re-use significantly. There was an emeritus professor who was the rights owner of a particular medical film Deutsch wanted to re-use, but who did not want to see his work re-appropriated in a non-medical, and artistic context. There are also some of the stag films used in Film Ist. A Girl & A Gun, which form part of the film collection at the Kinsey Institute for Research in Sex, Gender and Reproduction at Indiana University. The Institute restricted access to some of their holdings and declared the films shot by Alfred Kinsey himself in the 1940s and 1950s on human sexual behaviour off-limits to the film-maker. (Remarkably, these films are not available for anyone to watch, even on the archive's premises.) Interesting detail is that during the film-maker's production process, the Institute discovered it did not own the rights to the films in their collection Deutsch intended to re-use, so, based on their exclusive ownership of the source material, they ultimately charged him a handling fee.
The digital access challenge
A further (commercial) release of the third instalment in Deutsch's series could be challenging. Film Ist. 1–6 and Film Ist. 7–12 have seen commercial DVD releases. For some of the footage the rights have been cleared, whereas the unidentified fragments that are part of these films have been submitted to a risk analysis. Film Ist. A Girl & A Gun, however, does not only feature longer clips than the previous two instalments, but also clips from famous and canonical films (and therefore, easier to recognize). The rights to this film were cleared for theatrical release only–as well as for specific geographical areas–and in case of a potential television broadcast or a DVD or Blu-ray release, the rights would have to be re-cleared for that specific use.
Another example in which archival/human agency played a significant role was the production of Peter Delpeut's film Lyrical Nitrate (NL 1990). Delpeut was interested in telling the story of three misconceptions about early film (despite popular belief, silent film was mostly shown in colour; silent film shows unexpected fluidity when projected at the correct speed and silent film does not solely consist of slapstick) and used the Nederlands Filmmuseum's Desmet film collection as a hook to tell the story. These circa 900 silent film titles are still part of the collection of EYE and in 2011 were inscribed on the UNESCO Memory of the World Register. All fragments of Lyrical Nitrate originate from the Desmet film collection, except for the decaying closing sequence, which, according to Delpeut would never have ended up in the film had he not worked in the film archive.Footnote 13 The films of the Desmet collection had fallen into the public domain at the time of producing Lyrical Nitrate; the Filmmuseum, however, exclusively owned the material. Delpeut was deputy director when he made the film and was firmly on the inside of the archive. He agreed with the then director only to use material that had already been preserved, therefore limiting his choices at the time of compilation, but, according to Delpeut, ‘[a]ccess is the secret to any documentary'Footnote 14 and arguably, the film would not have been made at all if he had not had exclusive access to the nitrate source material and the highest possible standard of duplication methods at the time.
Found footage can be seen as a practice that keeps ‘collections in the public eye and [that makes] them matter to modern audiences’.Footnote 15 In the case of Lyrical Nitrate, the institute that houses and exclusively owns the nitrate source material helped to facilitate access to historic footage (and a particular narrative of film history) through its policy of allowing film fragments that had been preserved to be incorporated into new (amalgamated) work.
Found footage in context
By writing film history ‘with the films themselves’,Footnote 16 found footage films continually pose questions: What is film? And, by extension, what are film history and film historiography? And even, what is the role and function of the film archive? By attempting to strip the films from the film history previously associated with them, they also accentuate such concepts as authorship and ownership.Footnote 17
The practice of film-makers working outside of an institutional archival context brings this into clear tension: according to De Klerk,Footnote 18 found footage films have been ‘a strong advocate for the vitality and liveness of [the Public Domain] by showcasing the potential of films that have fallen from the mainstream’, but because of new and innovative ways of accessing canonical films, current found footage practices are no longer practices of re-using leftovers, as the tradition was long seen to be.
Against the copyright grain
Several current film-makers ignore or actively position themselves ‘against’ copyright law and, instead of asking for permission to re-use material, have found alternative ways to obtain their source material, circumventing both archives and rights holders. New–non-institutional–possibilities to access films have arguably become the only manner in which such films and artworks as Chris Marclay's The Clock (UK 2010), Nicolas Provost's Gravity (B 2007), or Vicky Bennett's The Sound of the End of Music (UK 2010) have been able to be produced.
Marclay employed a group of six assistants, who watched a plethora of films and captured scenes from DVDs showing or mentioning time in order to provide the artist with a daily fresh load of clips.Footnote 19 Copyright was not taken into consideration when producing The Clock, as there had been no objection to any of Marclay's appropriation art before.Footnote 20 Nicolas Provost explained at the opening of his retrospective exhibition in Amsterdam in April 2008, that he never would have been able to produce his works if he had had to go to a film archive for his source material as opposed to the local video store. In her presentation at the Recycled Film Symposium during the 10th AV Festival in March 2010 in Newcastle, UK, Vicky Bennett explained that she initially worked on what she calls a ‘local level’, predominantly from the genres of educational films and documentaries, and mostly on VHS. Currently, DVDs and broadband internet have enabled her to move into major blockbusters as well.
As film scholar David Bordwell has recently argued, different ways of accessing material outside of the institutional context of the film archive have eradicated what he has termed the ‘economy of scarcity’:
Throughout the 1970s and early 1980s, an economy of scarcity still ruled. Most films, even recent commercial hits, could be found only in studio libraries and public or privately maintained film archives. … A procession of new technologies, starting in the 1970s, radically and forever changed access to films, [such as] cable television, … VHS, [and] DVD. … With so many films easily available on digital formats, people who relied upon archives have found other options. … Home video abolished the economy of scarcity.Footnote 21
While this affects such people as educators who have come to rely on teaching film history with DVD predominantly, it has also affected the practice of contemporary found footage film-making. In an analogue era, duplication involved a certain degradation of the source material. Examples here are for instance Matthias Müller's Home Stories as mentioned earlier or Thom Andersen's Los Angeles Plays Itself (US 2003), a video essay about the role of the city of Los Angeles in the history of film for which he used low-resolution video since he was not able to obtain the studios' formal permission for re-using the film material. Even in a digital era, in which duplication does not necessarily mean a degradation of the duplicated image, these non-institutional works can be seen as ‘legally resistant’ and in their ‘aesthetics of access’ also firmly underline the legal provenance of their source material.
The ways in which new possibilities to access films such as DVDs and the internet are used, challenge the very raison d’être of the film archive. One of those reasons might be to provide the legally uncertain works, the orphan works, with a birthplace, as outside of the institutional context without a commercial incentive for preservation these works would most probably languish. So in turn, films such as Delpeut's Lyrical Nitrate or Gustav Deutsch's Film Ist series can be seen to highlight the latent potential of the film archive.
The legal provenance of archival material can be traced in the ultimate film form of found footage films and as such, they challenge traditional conceptions of authorship, ownership and copyright. They are illustrative in demonstrating that institutional context, copyright and film form are interdependent. The practice of found footage film-making generally, and re-using (unidentified) film fragments specifically, can be seen as a historiographic intervention as the resulting films challenge canonical film history (with a focus on complete titles) and the way that history has been told (with a lack of focus on the archival lacunae). But as these fragments can be seen to ‘question the politics of the archival work’,Footnote 22 they can also be seen as a challenge to the institutional role of the film archive in the construction of that process.
