On the phone from his office in New York, Alex Gibney, the Oscar-nominated director of Enron: The Smartest Guys in the Room, says, "I wish the reality was as pure as that image." He states the paradox neatly: "With the new technology you're able to get out and make a documentary on a contemporary subject with very little money, but the minute you get into a project with history at the center, all these restrictions get put on it. Private estates are asserting more control and archives are charging often unreasonable prices for historical materials."
Even if you're making a film about recent history, a filmmaker can hit similar snags and roadblocks. When Gibney approached one network for footage of Ken Lay, he was told the network wouldn't give it to him "unless I received Mr. Lay's permission. What does that do to public debate? If you can control your own likeness in a public sphere, you can control what people say about you."
Gibney says independent filmmakers suffer from, and corporate filmmakers benefit from, an informal double standard when it comes to access. "What kills me is that corporate news networks `steal' from each other all the time. I don't think any of the networks paid to use the footage of Janet Jackson at halftime for the Super Bowl, but if I wanted to put it into a documentary about censorship I'd have to prepare an argument that it constitutes `fair use' or just pay a lot of money."
Gibney, Burns and other filmmakers, as well as librarians, historians, academics and media producers, have signed a letter to Lawrence M. Small, secretary of the Smithsonian Institution, calling for the Smithsonian to take three immediate actions: 1. reveal the terms of its contract with Showtime (and any other contracts that restrict use of the Smithsonian's collection); 2. annul this contract because it was brokered without an open and competitive process; and 3. conduct hearings on the issue of limiting access to the institution and its staff.
These filmmakers think airing their disagreements with the Smithsonian and Showtime could catalyze creative solutions. Says Gibney: "There should be a way of making a documentary on a historical subject for a low budget - and then, if it makes a gazillion dollars, giving part of that back to the archives."
St. Thomas says there's been no decision on making the nonfinancial aspects of the deal public but that she has been willing to discuss openly all the issues pertaining to filmmaking and access. With its mixture of public and private status and funding and its function as a repository of our heritage, she says, "The Smithsonian is a unique institution - you can't compare it to the National Archives or Stanford University or any place else." So it's unreasonable, she says, to assume it would automatically reveal the details of its contracts and expose its partners to the scrutiny of their competitors.
Although she states the point less harshly, she agrees with what Jeanny Kim, vice president of media services for Smithsonian Business Ventures and the manager "of content and production assistance for the venture," told The New York Times: "It's not our obligation to help independent filmmakers sell their wares to commercial broadcast and cable networks." But Burns hopes he and his fellow concerned filmmakers can keep their relationship with the Smithsonian from becoming antagonistic. "Let Showtime and the Smithsonian develop their programming; let's just not make it exclusionary," says Burns. "That's not American, and for a public institution, I don't even think it's legal."