Could Policy Be the Answer?

Documentary film industry discussions of the current marketplace bust in the U.S. center market-oriented solutions such as new streaming platforms, data transparency for makers, and including documentary filmmakers in residuals. In our fractured political environment, individual and foundation philanthropy is also being asked to fill the gaps. These are all steps toward a healthier media landscape, which was weak even before the recent political threats to public funding and public media. While these solutions serve some filmmakers, they may be only propping up infrastructure that continues to fundamentally erode the real problem: sharply decreasing public access to creative and public interest documentaries. 

Documentary films on streaming platforms are increasingly focused on “docutainment.” This has created publics with decreased access to films that are meant to inform, challenge, and activate political consciousness. Filmmakers and communities whose perspectives are unpopular are seeing their pathways toward distribution narrowed. This includes BIPOC, LGBTQ+, disabled, working-class, and non–college-educated filmmakers and communities. 

Since the ’90s, the rollback of cable franchise fees, which fund public, education, and government access TV in most municipalities across the U.S., has resulted in a media nonprofit ecosystem that is tethered to philanthropic and corporate sponsorship support. Weakened local media production and exhibition spaces affect regions without a tourism economy the most, because hospitality taxes are often levied to support local arts council funding. All of this has resulted in the narrowing of perspectives in mainstream media.

An additional economic justice angle also strikes me as unfair. With the rise of true crime profitability and award-winning prestige documentaries, streamers and other multinational corporations are profiting from stories without having to reinvest these financial gains into the communities these stories come from. Contractual provisions for profit-sharing and educational screenings when Amazon bought Garrett Bradley’s Time (2020) and Netflix acquired North American rights for Yintah (2024) are some of the notable exceptions. 

In a documentary film context, where we’ve spent so long advocating for authentically told stories, this unequal risk-reward exchange elevates the stories themselves. It does not build infrastructural capacity for documentary makers and marginalized communities to benefit from their work and their values.

Haunted by this conundrum, I spent six months throughout fall 2024 reading, interviewing, and researching public policy as a Documentary Film Fellow at Harvard’s Shorenstein Center on Media, Politics, and Public Policy. My research examined policy solutions around the world, from countries outside the U.S., existing interventions at the state and local levels, to policies that existed in the past in broadcast or print media formats. 

We are witnessing the dismantling of government funding for arts and culture around the world, not only in countries that have long struggled with public support of the arts, but also in cultural strongholds like Switzerland and Germany. In my research, I considered whether the policy buckets could be viable in the U.S. Facing an American federal administration that is increasingly hostile to supporting a diverse arts and culture ecosystem, could policy be the answer?

Triple Threats

Over the past several years, when discussing the audience exodus to large platform streamers, I’ve encountered exhaustion from filmmakers, arts workers, funders, broadcasters, distributors, and exhibitors. Everyone wants to help fix the problem, but no one knows where to start. That’s because there are real issues that stack the deck against documentary filmmakers and our audiences. They can be classified into three main categories: funding, discoverability, and unequal market power. 

1. The lack of funding for the field—far from affecting only documentary filmmakers trying to get projects off the ground—is the first challenge. VOD platforms, commercial broadcast, public media, boutique and independent cinemas, film festivals, philanthropies, nonprofit regrantors, and artist support programs are all contending with consolidation and shaky long-term funding that limit their ability to create new pathways for documentary films outside of the market apparatus. As a result, proposed solutions come from a defensive position to protect what limited resources entities, filmmakers, and institutions already have—encouraging further competition, instead of mutually beneficial cooperation and collaboration.
2. Discoverability is a new challenge, and a direct result of our streaming era. It may seem like the world has opened to documentary viewers, but geoblocking; the proliferation of streamers and studios siloing their productions on their own SVOD platform; the cost of multiple subscriptions for average consumers; and the lack of a centralized listing service for documentaries (many have tried, many have failed) across all the SVOD, AVOD, TVOD, and FAST channels all contribute to a morass for audience engagement. Which films and shows appear on the home pages of the major platforms now drives engagement. In addition, video games, live streaming, YouTube, and short-form social video like TikTok are competing—and winning—ever increasing or greater shares of audiences. In 2017, Netflix CEO Reed Hastings memorably said he doesn’t consider other media companies competition for Netflix: “We actually compete with sleep!” Just being carried or programmed by a service is no longer enough.
3. Unequal market power between big fish and small fish is an age-old entertainment industry story (see also Vikram Murthi’s Making a Production profile on Concord Originals). Right now, however, we face historic inequities in contract negotiations because of a lack of audience data. This data asymmetry, where streaming platforms hoard program performance and audience numbers—and don’t even release them to licensees, makes it difficult for makers to advocate for budget, timelines, and ownership over profits. This is a challenge for film producers as well as distributors, who increasingly rely on VOD output deals. Those VOD streaming output deals also reveal serious inequities in market power. TVOD platforms have unilateral decisions to deplatform independent films. And those who remain platformed are subject to onerous fees for preferred placement on platform home pages. Distributors and financiers pass on these pressures to film producers. The lack of options in our highly consolidated media landscape pressures producers into accepting all-rights-in-perpetuity deals without profit participation. In the end, it is our audiences who lose out.

Documentary films that are creative, investigative, question power, and represent unpopular views—and therefore are made independently and scrappily—cannot possibly compete in the market in the face of this anticompetitive media landscape.

Competition Is King, Actually

In documentary, we pride ourselves on our community. But in business, a lack of competition in our capitalist market spells trouble, because it means competition is being suppressed. In the U.S., the federal government has historically recognized that our media diets need to be as varied as the food we ingest. The Sherman Antitrust Act of 1890 codified many elements of monopolies. Every form of mass media has faced antitrust challenges, from newspapers through cable TV, until deregulation started four decades ago. And except for one single high-profile case, United States v. Microsoft in 2001, online platforms have received remarkable regulatory leeway. 

As Martha Minow’s Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (2021) describes, the 1996 U.S. Communications Decency Act actually treats internet platform companies differently from all other media companies. Section 230 immunizes platforms when they violate contract terms and from having to put the revenues they gain from advertisement or subscribers back into local, indie production or local news (which is still required of radio and cable in many municipalities). Minow’s book specifically refers to platforms like Meta’s Facebook and Apple News, where user content is local news, but its analyses also apply to video streaming platforms, which are not currently regulated at all by the FCC.

In 2018, in publicly published reports, the FCC acknowledged that streaming advertising revenues surpassed all TV advertising revenue. The 2018 sunset of the Paramount Decrees was thus justified on the basis that the studios needed to be freed of these restrictions in order to compete with streamers. The Paramount Decrees were part of a landmark 1948 case against vertical integration that forbade the then-Hollywood studios from also owning and operating theater chains. Thus the 2020 end of the Paramount Decrees not only cleared the way for studios and streamers to purchase theaters (which Netflix, Amazon, and Sony have already done), but also encouraged the increase of anticompetitive practices across the film sector. Specific practices like block booking and clean runs in theaters have trickle down effects for indie theaters by limiting the number of films they can book in any given week. Coupled with the unequal market power challenges for producers, the consolidation of our media landscape allows anticompetitive practices to proliferate.

What can we do about this? To help level the playing field for our films, nonprofit and artist service organizations can file amicus briefs for proposed mergers, advocate for public comment periods, and then gather and submit public comments to the FTC and FCC. But simply having more buyers, platforms, and exhibitors won’t solve the editorial problem of overcommissioning docutainment, which remains more profitable than most creative and social impact documentaries. This is where regulation comes in.

Ensuring Public Interest

Anticompetitive practices won’t be solved merely by breaking up the power of large corporations. Right now, commercial entities overinvest in only a few genres that appeal to the broadest possible audience: celebrity biographies, music docs, unscripted reality, true crime, and other docs packaged as IP. But documentaries don’t need to serve the broadest possible audience in order to turn a profit, have social impact, or be artistically inspiring. Audiences have noticed the glut of “content.” Will Tavlin’s essay in the winter 2025 issue of n+1 examines why Netflix looks like a “sprawling mosaic of content, destined to be autoplayed on laptops whose owners have fallen asleep.” Twenty countries around the world have already decided that their constituents deserve better by instituting regulations.

There are several categories of regulations. There are content regulations of streaming platforms, such as quotas to support local content production. Many of those also have diversity mandates, such as content quotas for films directed by women. There are provisions to enhance discoverability, such as in the EU’s Audiovisual Media Services Directive streaming regulation bills in EU countries, which all include a provision for not only mandating a certain quota of local content, but also placing that mandated content on the front pages of the platforms. In the U.S., we already have content regulations for broadcast and cable, which are still in effect. They currently mandate the max amount of advertising allowed per hour, and provide equal opportunities for political candidates of different parties in editorial content. 

These content regulations could also be applied to support documentary films—if we define what public interest documentaries are. Media scholar Victor Pickard argues that the U.S. streamers’ general editorial mandates will not change even if regulation requires more independent content suppliers. That is, studios and streamers will continue to populate the media ecosystem with docutainment if there isn’t a specific policy that prioritizes the public interest. We’re not alone here. For an example of a policy-based definition and how that can be strategically used in tandem to support documentary content regulations, see Sarah Spring’s policy brief cutdown on page 36.

Another type of regulation evens the bargaining playing field between filmmakers and buyers. Here, too, we have a long history of these trade regulations in the U.S. In 1970, the FCC imposed the Financial Interest and Syndication Rules—known as fin-syn—to prevent the Big Three TV networks from monopolizing broadcast by preventing them from owning primetime programming and airing syndicated programming they had a financial stake in. This meant that all-rights-in-perpetuity deals would not be allowed under regulation, and secondary rights reverted back to producers. Although it was credited with the creating the Golden Age of Television, fin-syn was revoked in 1993. What we lost in the U.S. was the ability of producers to negotiate effectively with networks. 

This same dynamic has played out around the world. When producers are able to retain rights and effectively negotiate with networks (and streamers), the quality of content improves, and it sustains the sector. The 2003 UK Communications Act limited the territories, time (seven years), and remake rights that broadcasters could legally negotiate with producers in the UK, and this is the reason why we’re inundated with British TV and British remakes—and they’re mostly from the UK independent sector. Impact studies of the economic and creative impacts of these UK terms of trade since their 2004 implementation have shown that the independent sector became more efficient and more sustainable, more creative, and more diverse. The terms of trade don’t apply to streamers, however, and in my conversations with UK filmmakers, they recognize the need to revisit this policy.

One last form of regulation brings us to revenue levies, which address the severe lack of funding.

How Will We Pay for It?

In the U.S., the documentary film sector is dependent for production funding and distribution support on (1) public broadcasting and (2) private entities, from investors to philanthropic foundations. Those entities are currently overwhelmed by the needs of independent film, even though in many cases they remain staunch allies. Public funding could more than fill this gap.

What do I mean by public funding? We often think of public funding in the U.S. as supportive public broadcasting and streaming, such as local PBS stations and public access TV, as well the NEA and state and local arts councils, which in turn offer government grants for arts organizations and film exhibitors. Public funding of film could also mean creating a national film agency, which has already been proposed by and worked on by Macarthur Genius doc filmmaker Alex Rivera. We can and should proactively advocate for the creation and expansion of these entities. 

During my fellowship, I also discovered many other ways we can expand funding of public interest documentaries. As previously hinted at, the allocation for public access TV and local arts funding in the U.S. is already often from hospitality taxes or broadcast franchise fees, which both act as levies. A levy is the same mechanism that funds France’s vaunted CNC, which takes a portion of the revenue generated by theatrical box office, and now streaming subscriptions, to fund the French film and TV sector. We also have many existing hospitality tax levies in the U.S. at the state and municipal levels. Historically, U.S. voters chose to levy taxes to support arts and culture because we understand that public investment in arts and culture serves our civic society. These levies already exist not only in large cities like L.A., N.Y., and Austin but in almost every red state in our country, from Minnesota to Utah.

One of the best examples is Minnesota’s Legacy Amendment. Residents voted in 2009 to increase, for the second time, the state sales tax by three-eighths of one percent continuing until 2034, so that 20% of this sales tax increase can be allocated specifically for the state arts and cultural heritage fund, which supports entities such as Twin Cities Public Television. These funding mechanisms could be expanded locality-by-locality and advocated for at a national level. Through policies similar to ones that already exist in the EU, East Asia, and South America, we can expand them beyond nonprofits and film production, to support the work of indie exhibitors, distributors, and other entities that support audience development.

Public funding won’t solve all of our problems. Public funding is vulnerable in political power plays. But public funding creates public accountability. It’s something that we can advocate for and then defend.

Documentaries Are Unique

But wait! Documentaries aren’t like fiction films, we may argue. They have special, noncommercial value. They’re made differently. They should circulate differently. We can account, and others have accounted, for these unique characteristics by creating carveouts. A carveout is any exception within a larger policy. Carveouts can be used to either exclude or include. Carveouts for independent films in general, for example, recognize that independently made and lower-budget films can’t meet the same requirements as studio projects, and they shouldn’t have to. A robust indie carveout in a state production tax incentive not only lowers the minimum spending floor so that more indie productions can qualify, but sets aside either an allocation just for indie productions or an additional uplift for indie productions. 

Documentary carveouts can and should be written to reflect the values of good documentary practice for authentic storytelling. Elsewhere in this issue, SeoYoung Ha, who was an incredible research assistant during my Shorenstein fellowship, writes convincingly about some carveouts for geographic and minority production diversity, and how they can be instituted. As in other countries, in the U.S., documentaries have a lower barrier to entry for working filmmakers. According to CMSI’s 2020 “State of the Documentary Field” survey, 63% of U.S. documentary filmmakers are women, 16% identify as LGBTQ+, 29% as BIPOC, and 5% as disabled. Supporting independent documentaries will contribute greatly to the entire indie film sector’s ability to support more forms and types of vital storytelling.

Building the Case for Support

Now that I’m back at IDA, I’ve volunteered my time at the newly formed nonprofit Future Film Coalition to continue the work of advocating for independent documentary films. The Future Film Coalition isn’t just for documentary filmmakers but all parts of the indie film system in the U.S. What happens next? We need two things to be able to articulate the critical impact of independent film, including documentaries, for policy makers and potential allies. 

First, we need to continue this work of identifying specific policy, regulatory, and public funding interventions that target challenges facing indie films. Second, and just as important, we need to build the case to support indie film and documentaries. We need economic and cultural impact data of our work as filmmakers, filmmaker support, sales, legal, exhibitors, distributors, audiences, and more. We need filmmakers to learn to articulate our role serving the public interest.

These two things must happen in tandem. We must have policy goals in mind when conducting economic and cultural impact research in order to leverage such research. Only then can policy be the solution.

This piece was updated after it was first published in the Spring 2025 print issue of Documentary, with the following subheading: How public policy can address funding, discoverability, and unequal market power for documentary makers.

Abby Sun is IDA’s director of programs and the editor of Documentary. She just completed a fall 2024 Shorenstein Documentary Film Fellowship.