INDIANAPOLIS, Ind. — Alan Berry is a filmmaker who spent more than three years working for the Indiana Department of Education and assembling a documentary about the education of migrant children.
“The Indiana Department of Education was doing a great job for these kids,” said Berry.
The film, shot in 2015, profiled the Migrant Education Program, paid for with federal funds, that aimed to boost the education of migrant children whose Indiana classroom journeys followed their families’ sojourns from Hoosier fields to the southern United States in the winter and back to the Midwest once the weather warmed.
“The biggest thing was being able to find these kids in a timely manner and give the resources they need because these kids some of them are only here for six or seven weeks,” said Berry.
As a filmmaker in the employ of the state, Berry said his bosses at IDOE were on board with the project, which was about 90% completed when the 2016 election season heated up and incumbent State Superintendent Glenda Ritz, a Democrat, was ousted in favor of Jennifer McCormick, a Republican.
Berry’s film was shelved and in 2017 he left IDOE.
“So at the end of last year of 2018 I heard through the grapevine through some of the people that I knew in the migrant education world that it was their understanding that this film was never gonna be released as is,” said Berry. “It was never gonna come out as the way that we finished it.”
After devoting nearly two years of his professional life to the film, Berry took it upon himself last Christmas to finish editing the documentary and release it on his YouTube channel under the title Where Education Grows: Stories from Indiana Fields.
“It’s very glowing of the Department of Education,” said Berry. “It’s not negative. I don’t think it’s political in any way. It’s a very pro-IDOE story, so in my mind I don’t think it’s going to be a big deal because they’ve had a year-and-a-half, two years to release it and they haven’t done anything with it.”
It wasn’t just his own time invested that rubbed Berry wrong about wondering why IDOE didn’t want the film released.
“This is just a huge taxpayer waste,” he said. “At least $60,000 of taxpayer dollars went to make this film.”
Once Berry posted the film to his own sites last month, it didn’t take long for an IDOE lawyer to respond with a “Notice of Copyright Infringement CEASE AND DESIST” letter dated Feb. 4. (You can read the cease and desist letter here)
“Such documentary is the exclusive property of IDOE,” wrote the state attorney. “If you fail to comply with the aforementioned demand(s) within 15 days we will have no choice but pursue all legal causes of action.”
The letter claims Berry could be found liable for up to $150,000 in statutory damages.
“So when I got the cease and desist from the Department of Education, it says on there that I must comply by the 19th, so this has kind of opened up a little bit of a window for me to promote this film,” said Berry. “I want to get this film out to as many people as possible before they make me take it down.”
Berry cites Section 105 of the Copyright Act that indicates such works created at the behest of or paid for by the federal government are not entitled to domestic copyright protection and are in the public domain. The Migrant Education Program is a federally mandated program administered at the state level and paid for with federal funds.
“I don’t believe this is copyright infringement because there cannot be a copyright infringement on a taxpayer-paid video,” said Berry. “In some ways it is a First Amendment fight because it’s a government entity saying that this voice cannot be heard.”
The cease and desist letter contends Berry violated the rights of minors interviewed in his story by not receiving parental consent for their inclusion the film or that such rights were secured by IDOE and not the filmmaker.
“The release of the video violates the Family Educational Rights and Privacy Act,” reads the letter.
One of those students who was interviewed, Cayetano Sanchez, attended high school in Indiana and earned his diploma before entering college in Georgia. He said he was gratified to see his story told in the video.
“(Berry) spoke to my parents a few times and filmed them,” Sanchez told CBS4. “During the film watching it I got choked up a bit seeing it, remembering how it was for us because now we no longer work in the fields as much. We’ve been able to grow past that and get better jobs for me and my family so it’s been a real motivational film for me.
“This provides more of a motive for other kids to keep going,” the college sophomore continued. ”They can see how I’ve been able to succeed with the Migrant Education Program and they can see with them how I was able to go and receive my high school diploma and go to college and they can see just how much they can succeed with the Migrant Education Program.”
Berry said during the filming he was surprised to learn the program was a huge success and an example of a state government program that worked.
“My David vs. Goliath fight is nothing compared to that of the migrant workers who come to the state of Indiana,” said Berry. “I would genuinely like to know why the Indiana Department of Education doesn’t want this film out there.
“I would be thrilled for the Department of Education to take my finished video and put it on their YouTube channel.”
Since Berry said he doesn’t have the funds to fight the state, he’s counting on viewers who find their way to his various websites to download and share it.
“The main subject is Cayetano who wants the film to be out there,” said Berry. “So what’s the Department of Education gonna do if Cayetano puts it up on his YouTube page? Are they gonna go sue a migrant worker because they put the film up?
“I want people to see this film before it could possibly go off and you’d never see it again.”