The Fight for the Right to Copy

In 1998, Congress passed the Sony Bono Act (sponsored by the late congressman), extending the copyright on everything from movies to literary and musical works from 75 to 95 years. The sweeping measure guaranteed, for another generation, that the creators and owners of 20th century works and their heirs would have exclusive control over their presentation and use.

The Supreme Court, however, recently decided to review the extension, questioning how long the original artists and their estates should artistically control and financially benefit from a work. The court review, the result of a challenge filed by an Internet archivist, raises several questions about the fate of all kinds of creative properties, motion pictures in particular.

If the court strikes down the extension, F. Scott Fitzgerald’s novel “The Great Gatsby” and Walt Disney’s original Mickey Mouse renderings would soon enter the public domain and copies could be freely disseminated in book and video stores, and over the Internet. Almost all American-made films from the silent and early sound era and musical works from the same period would be accessible to anyone for any use.

In the case of movies, the original negatives--which usually provide the highest quality source for reproduction--would still reside with studios and independent companies that previously held the copyright. Ostensibly, this would provide enough incentive for studios to preserve the movies, but the opposite has more often been the case, if you believe those who side with Jack Valenti, president of the Motion Picture Assn. of America, who has lobbied for the extension vigorously on behalf of the major studios. Even if multiple copies of a movie are available in the public domain, studio executives such as Amir Malin, chief executive of Artisan Entertainment, contend that “whoever owns the best materials will still be able to best exploit works that then fall into the public domain.”

An example cited on both sides of the argument involves Frank Capra’s “It’s a Wonderful Life.” Opponents of copyright extension claim the movie would have continued to gather dust in a vault if the copyright hadn’t expired. Because it fell into the public domain, numerous television stations began to broadcast the film. What was a commercial disappointment at the time of its release was transformed into a Christmas favorite.

Those who favor copyright extension contend that because the film was free for anyone to copy, numerous video companies were able to exploit the Capra classic, and the market was flooded with versions of varying quality, often extracted from old 35-millimeter and 16-millimeter prints. When Republic Pictures discovered a way to regain control of the property and renew the copyright (by tying up the rights to a piece of music used in the film), the company also gained a financial incentive to restore Capra’s movie and distribute high-quality videocassette, DVD and television versions. “It’s a Wonderful Life” was rediscovered by a new generation of critics and filmgoers and, according to Malin, sells in excess of 750,000 videos every year. Video sales were nowhere near that level when numerous poorer-quality versions were available in public domain.

“People who don’t want extension to occur make a number of perfectly valid arguments concerning access to important intellectual works,” says Roger Mayer, president of Turner Entertainment, which purchased the MGM library in the mid-1980s and is now part of AOL Time Warner. For example, despite the fact that MGM popularized “The Wizard of Oz” for several generations through its 1939 musical, if L. Frank Baum’s original series of “Oz” books was not in the public domain, the costs of obtaining permission to produce more recent stage, film or TV versions might have been prohibitive.

However, says Mayer, “the perception is that if a movie falls into public domain, it’s more likely to be preserved. Exactly the opposite is true.”

Older film titles, most of which are in black-and-white, can cost anywhere from $25,000 to $250,000 to restore and remaster. Then there are problems of maintaining, storing and marketing the film. Without deep pockets, the return on such an investment--particularly for less conspicuous titles--is just not there.

“As it is, archives and preservation foundations have limited funding,” says Richard P. May, vice president of preservation at Warner Bros. “Imagine how much would be needed if all the films of the 1930s [Hollywood’s so-called golden age] were to fall into public domain.”

Due to oversights in copyright renewal, many films from that period, such as the original 1937 version of “A Star is Born,” are already out of copyright and lack the backing to be properly restored. The burgeoning DVD market has given some of these films a new lease on life. Recently, specialty video company Navarre Corp. introduced the first group of about 40 planned titles on DVD, including “A Star Is Born,” “Metropolis,” “Nosferatu,” “A Farewell to Arms” and “Little Shop of Horrors.”

None of these titles is derived from negatives, says Joyce Fleck, vice president of marketing at Navarre, but the company has tried to access the best available existing prints of these films. Sold in groups of three for $9.99, Fleck says any compromises in quality are more than offset by the bargain prices. Whether you agree depends on how much of a stickler you are for video and audio quality.

Over the years, other companies have released video versions of movies--foreign titles, for example--that were either temporarily in the public domain (the 1949 British film “The Third Man,” Fellini’s 1957 “Nights of Cabiria,” the early Alfred Hitchcock films) or owned by companies that were lax in enforcing their copyright (some Ingmar Bergman movies). “Many of the people in the public domain business are pirates and take the chance that the copyright owner is looking the other way,” says Steven Riforgiato, vice president of sales and marketing at Home Vision Entertainment/Criterion.

For a time, it was mistakenly thought that Universal’s 1962 romance “Charade,” starring Cary Grant and Audrey Hepburn, was in the public domain, resulting in substandard video versions of the movie. “Universal had to go after them,” Riforgiato says. Through an agreement with the studio, his company restored and remastered “Charade” as well as other specialized titles from the studio’s library, including “The Last Temptation of Christ,” “The Scarlet Empress” (this one from the pre-1948 Paramount library, which Universal owns), “Brazil” and “Spartacus.”

HMV/Criterion prefers not to work with public domain titles because they wouldn’t have access to the original negative. The company’s quality restoration from original materials, however, comes at a price. Its video and DVD titles are usually more expensive than comparable studio releases, although they often include special materials. Riforgiato says his main audience is the film buff who places a premium on quality.

The mass market may not be as discriminating, Warner Bros.’ May contends. A flood of older movie titles into the public domain could result in lucrative product, not only for discount video distributors, but independent television stations looking to fill programming schedules with cheap programming. Exposure to bad movie transfers could diminish, rather than enhance, the overall value of the work, he argues.

Opponents of the copyright extension counter that the studios have created a smoke screen, and that, particularly in the digital age, the tools are available for less expensive ways to restore and preserve movies. Continuing to extend the copyright hampers the rediscovery and exploitation of less commercial films and the works on which many are based. Some companies, such as Turner Entertainment, have refurbished all the materials in their libraries, according to Mayer. Others pay close attention only to their top commercial titles.

Malin says that of the 6,700 titles in the Artisan library--a collection of works from various companies mostly made in the last half of the 20th century--only about 600 or 700 are commercially viable.

Mayer says that even movies that don’t appear to have much commercial potential are worth preserving. For instance, a few years ago, Disney purchased the rights to remake MGM’s 1950 film “Father of the Bride.” The redo, which starred Steve Martin, was so successful that it enhanced the value of the original on home video and television.

“There are valid arguments on both sides,” says Lou Petrich, partner in the law firm of Leopold, Petrich & Smith who specializes in copyright issues. “The court doesn’t like monopolies but has [in the past] agreed to limited monopolies as an incentive for authors to create new works.”

The fear is that by upholding the 20-year extension to 95 years, the court would continue the monopoly on creative works and open the door to further lobbying at the end of that period for yet another congressional extension.

The argument goes beyond the Davids and Goliaths. Besides protecting the interests of studios and major film companies, the copyright law also ensures that underlying rights holders--authors, playwrights, composers and their heirs--benefit.

Studios don’t always own underlying rights on intellectual properties for indefinite periods. This applies to literary adaptations and even musical compositions. “We may have a limited right with an author lasting maybe 10 years,” explains May. After that, the studio has to negotiate to extend the agreement, as MGM did with the Irving Berlin estate on the 1950 film version of “Annie Get Your Gun.” Depending on the contracts, if rights are not extended, the movies may have to be taken out of circulation.

“The whole purpose of the copyright was to encourage people to create artistic works by giving them significant exclusivity,” May says. “And there are a lot of authors who, over the years, have not wanted their work to be translated into another medium. I’m not sure that’s wrong.”

Capping the copyright at 75 years (and 50 years after an author’s death), would open the door to a slew of novels, plays and musical compositions created in the ‘20s and ‘30s, denying the creators’ heirs financial remuneration or artistic control over how the work is distributed or adapted.

The entertainment Goliaths would also be at odds with one another. If vintage studio films were in the public domain--as well as the source materials (original screenplays, adaptations, novels, musical works)--competing companies would be able to refashion them into new works for stage, screen and television.

But how many generations of heirs should enjoy the fruits of an author’s labors before everyone is allowed free access? If Charles Dickens’ novels were still under copyright and his estate proscribed any film or theatrical versions of his work, wouldn’t the public be poorer as a result?

As some argue was the case with “It’s a Wonderful Life,” the expiration of exclusivity could lead to their rediscovery. For now, the current 95-year copyright (and, in the case of some authors, even longer) is in keeping with intellectual property rights recently established in many parts of Europe, copyright attorney Petrich points out, and rescinding the 20-year extension could place American works at a disadvantage. The Supreme Court’s decision to look into the 1998 law, Petrich notes, indicates there is at least some support for overturning it.

The matter will be argued this fall, with the final decision expected by the end of this year or early next year.

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Richard Natale is a regular contributor to Calendar.