American History X

With more than 25 museums and research centers and a collection of more than 142 million objects, the Smithsonian Institution is a necessary treasure trove for anyone working on a project about American history and culture, anthropology, art, or science. Countless filmmakers have turned to the Institution for background research, access to artifacts and documents, and to secure interviews with top experts in their respective fields.

In March, the Smithsonian announced it would partner with Showtime Networks to develop Smithsonian On Demand, a cable service that will feature original documentaries drawn from the assets of the Smithsonian. While documentary filmmakers could have been pleased that there would be another potential outlet for their work, the overall reaction was not positive. Within a month of the announcement, 215 documentary filmmakers, archivists, historians, professors, broadcasters, and professional associations that represent librarians, historians, and filmmakers composed a letter to the Smithsonian that asked for the terms of the deal to be made public and for any contract to be annulled until public hearings could be held. The signatories were a virtual who’s who of documentary film, including Ken Burns, Michael Moore, David Grubin, William Greaves, R.J. Cutler, St. Claire Bourne, and recent Academy Award nominees Alex Gibney, Kirby Dick, and Gerardine Wurzburg.

What disturbed most of the filmmakers was that the agreement mandated, according to reports in the New York Times and the Washington Post, right of first refusal to Smithsonian On Demand for any commercial documentary project that required “more than incidental” use of Smithsonian resources. The questions flew. What does “incidental” mean? Would any proposals that wanted more than “incidental use” be sent to Showtime for vetting? Did “commercial” include PBS or the internet? But none of these questions could be answered definitively as the agreement wasn’t
made public.

The Smithsonian claims that, because it is a private business contract that contains proprietary information, it is under no obligation to release the terms of the agreement. Watchdogs of the federal government disagree. Although it’s not a federal agency, the Smithsonian Institution receives 75 percent of its funding from federal monies.

Carl Malamud, an internet radio pioneer and fellow at the Center for American Progress, submitted a Freedom of Information Act (FOIA) request for the details of the agreement. He also organized the petition letter to the Smithsonian and an April 18 public forum where Ken Burns voiced his concerns about the Smithsonian On Demand deal. “This is not us against them,” said Burns. “The Smithsonian is not the enemy. We love the Smithsonian. We depend on them. We just feel those involved made a mistake.”

Most filmmakers who have experience working with the Smithsonian agree. Laurie Kahn-Leavitt relied greatly on the Smithsonian for her 2003 film Tupperware!. Paul Wagner’s 1984 Academy Award-winning film The Stone Carvers was co-produced and co-directed with Marjorie Hunt, a folklorist employed by the Smithsonian’s Center for Folklife and Cultural Heritage. Both filmmakers have had positive experiences with Smithsonian staff but worry that, had their films been made today, their use of Smithsonian resources would be considered “more than incidental.” Both films ultimately screened on PBS.

“I appreciate the fact that the Smithsonian is under difficult financial circumstances and needs to raise money,” said Paul Wagner. “I think it’s fine if they want to develop projects with a commercial entity, but they can’t cut off access to materials that were given to the Smithsonian and held in trust there for the American people, not
Showtime.”

“It’s not like filmmakers mooch off them,” says Kahn-Leavitt. In fact, filmmakers pay pretty significant daily filming fees, which cover the costs of electricity, security, and staff costs associated with escorting
the crew. In the case of Kahn-Leavitt, she not only paid the fees, but also helped strengthen the Smithsonian’s collections by encouraging many of the early Tupperware salespeople she interviewed to donate their collections to the Smithsonian. She worries that even the perception of an exclusive deal with Showtime sullies the Smithsonian’s reputation as the nation’s public attic. “It seems that for a public institution to be so secretive and not public-minded about the way they are doing this is missing the bigger picture of what their mission is.”

While the Smithsonian wouldn’t comment on Kahn-Leavitt or Wagner’s films, they maintain that a number of past series would not be affected by the venture, including Ken Burns’ 1999 series Jazz. The Institution insists that the Smithsonian On Demand agreement would not impact access to background research and suggests that non-
Smithsonian On Demand projects that rely on “more than incidental use” can still be approved on a case-by-case basis. Between March and May, the Smithsonian received more than 40 requests from documentary filmmakers and only two were turned down. Smithsonian spokeswoman Claire Brown maintains that most future rejections will occur for the same reasons they always have. “It could be inappropriate content. It could be artifacts or expertise we don’t feel we have. It could be focused on an audience that quite honestly is not a priority for us because someone else might be asking us to get involved with a project with a much larger audience,” she says.

“That represents a paradigm shift,” says documentary filmmaker Nina Gilden Seavey. “People give their papers to these public institutions so that scholars, students, and filmmakers can go to them as part of the American experience. Never before have the people who have managed these collections ever talked about controlling access to
them.” Seavey has produced and directed a number of independent historical documentaries as well as four commissioned works for the Smithsonian. She is also the director of The Documentary Center at George Washington University and often encourages her students to look to the Smithsonian as a resource for their films.

While Seavey never had to submit requests for her past projects, she has noticed that there is now a lengthy filming request form that must be completed. It asks not only for basic information about what, when, and how the filmmaker wants to shoot, but also whether the project is being produced for cable, broadcast, or the internet, who is funding the project, who will own the copyright, and what organizations or individuals will receive the program’s gross and net proceeds. Brown explains the requirements as necessary for an organization with the limitations of and as in-demand as the Smithsonian. “One person can only give so much time to a project. If there’s a choice between doing projects which reach four million people and help advance our mission or ones which reach 100,000 people, we’re going to take the one that’s four million.”

Malamud sees the issue as more than just a matter of available resources. It is about the lines between different kinds of media becoming increasingly murky. “What happens to the video blogger who lives in Washington DC and wants to pop in to the Smithsonian with a couple grand and make a little movie to distribute for free or distribute it using BitTorrent and Pay Pal?” asks Malamud. “This contract buys into the big media view of the world and that world is changing.”

At press time, there were indications that the concerns of stakeholders about the Smithsonian On Demand deal were having an impact. The two ranking members of the House Appropriations Subcommittee that oversees the Smithsonian’s federal funding openly criticized the access issues and secrecy surrounding the Smithsonian On Demand agreement, and the Subcommittee proceeded to cut $5.3 million from the Smithsonian’s proposed budget. The Smithsonian Board of Regents, which includes Supreme Court Chief Justice John Roberts, Vice President Dick Cheney, six congressional representatives, and business and arts leaders, met to discuss the deal and the concerns it raised, but concluded that the contract was acceptable and that it did not limit access to most legitimate filmmakers. The full Appropriations Committee proceeded to cut the Smithsonian’s requested funding by $15 million.

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