The beginning of a calendar year is an active time for the serious movie-watcher. Besides providing the most accelerated moment of awards pre-season and a profusion of top 10 lists, the new year also portends surprises from the influx of films annually chosen for preservation by the NFPB and the new streaming contracts that motivate some heavy updates on your Netflix queue.
But the Duke School of Law has also annually contributed another litany of films to these annual aggregations: films (and other creative works) that, as of January 1st of each year, they argue should be, but aren’t, added to the public domain.
According to the Center for the Study of the Public Domain, if the Copyright Act of 1976 (which went into effect in 1978) had never been passed, as of last week many works from 1957 would go into public domain in the United States, including classic films like David Lean’s Bridge on the River Kwai, Federico Fellini’s Nights of Cabiria, Ingmar Bergman’s The Seventh Seal, the great Elvis flick Jailhouse Rock, the original 3:10 to Yuma, Sidney Lumet’s 12 Angry Men, and so on. Some of these works have gone into public domain in Canada and Western Europe as a result of more lax copyright laws abroad.
The politics and logistics of the public domain are, to put it mildly, confusing. Films pose a particular problem due to their regular incorporation of many copyright-able materials (such as the fact that many films are adaptations of copyrighted works, and incorporate original, copyright-able music) and the fact that there have long been means of extending copyright around existing laws. In fact, because of the timing of the 1978 law, there has never been a period that saw a regular roll out of movies entering the public domain, unlike literature, music, and academic research. So why aren’t we getting a regular stash of new films added to the public domain, and why does that matter?
Before the time that the Copyright Act of 1976 went into law, an individual work had 56 years before it was made available in the public domain, according to the most recent major copyright act in 1909. This means that the films ostensibly available via copyright around the time the 1976 law was signed were exclusively of the silent era, many of which were already available in the public domain as a result of failures to renew copyrights – it would be an understatement to say that the silent era of filmmaking did not place the preservation of individual works (legally or materially) as its highest priority.
But the Copyright Act of 1976 went into place specifically because of the new implications that 20th century media posed for the public domain. A quick word search in the bill for terms like “motion pictures,” “film,” and “sound recordings” exhibit the great concern Congress had for the copyright status of mass-disseminated media. It doesn’t take too much imagination to understand what the private interests were that helped motivate this law. This portending continuance of post-1909 public domain guidelines no longer meant that a regional theater company could stage a famous play, a musician could acquire sheet music for free, or an educator could make copies of an existing novel, all without fear of infringement. It also meant that materials featured on films, on television, on radio, and in mass-circulating newspapers – i.e., the driving means of America’s 20th century commercial economy – would no longer have the legal protection of potential monetary gain.
The 20th century’s commercial economy was largely defined by profit through reproduction (dictating which theaters could show what films, which music could play on what stations, when a television program aired, etc.); once the parameters of that reproduction threatened to burst wide open, albeit more than a half century into the future, lawmakers (and, one can assume, the deep-pocketed lobbies behind them) balked.
But in retrospect, the timing of the 1976 act proved even more fortuitous for studios than it initially seemed. Aside from witnessing movie studios become multinational conglomerates through compounding corporate mergers and the emerging new market for older films on cable TV and home video, the time between the act’s passing and its implementation saw the release of films like Rocky, Star Wars, and Spielberg’s second consecutive hit, Close Encounters of the Third Kind, thus bringing into full force the blockbuster mentality and franchising practices that have dominated Hollywood in the decades since.
In short, the 1976 act was passed at a time when, and in many ways allowed for, films that could potentially exist into perpetuity. This has bred a current situation that finds creative media properties regularly recycled well past a half-century until their lifespan. How many Secret Life of Walter Mitty remakes might there have been had the 1947 film (and its short story source) not benefited from continued protection by this Act? How might the Star Wars universe have manifested differently had George Lucas supposed that Darth Vader would go into public domain by New Year’s Day, 2033?
This is not necessarily to say that there are few films in the public domain. There exists a diverse (and disputed) class of films with that unique title, many of which have come into public domain as a result of failure to renew copyright, legal mistakes, moneyed disinterest, legal loopholes, or missing copyrights – not, in other words, the simple passing of decades. Public domain status has meant a variety of fates for films that sport the peculiar moniker. Recently, “Sherlock Holmes” had its status as mostly free to use reaffirmed by a judge, undergirding a recent slew of projects featuring the famous detective and his hetero life partner, and it’s not nearly the only creative work to have its relationship with the public altered specifically because of its public domain status.
- For the entry of It’s a Wonderful Life into the public domain in 1975, such a status meant frequent television rotation and, thus, a film whose reputation gradually shifted from a lesser Frank Capra entry to one of the greatest holiday movies ever made.
- For George Romero’s Night of the Living Dead, an unwitting public domain status meant that Romero lost creative control of (and the ability to profit from) one of the biggest game-changers in modern horror cinema, and saw the rise of sequels and remakes he had nothing to do with.
- For Stanley Donen’s Charade, public domain status meant that the Technicolor Cary Grant/Audrey Hepburn vehicle is now both an exquisite Criterion blu-ray and a DVD extra on The Truth About Charlie’s home video release.
Besides their endless reserve of potentially profitable franchises, sequels, and remakes, stricter public domain laws have meant studio vaults sealed with money. Many studios refuse to circulate their older prints; others, like Warner Archive, recognize an audience still hungry for classic cinema. But a paywall in front of half-century old movies perhaps illustrates better than anything the residual consequences from the 1976 law. As 9th Circuit Judge Alex Kozinski put it,
“Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
Kozinski insightfully locates human creativity and originality not in decontextualized epiphanies removed from other aspects of life and art, but in art’s interaction with existing art. Human creativity is, in many ways, essentially derivative, building from prior contributions, conventions, and works. A limited public domain, thus, privileges an absolutist idea of protecting work in commercial terms, not artistic or cultural terms. In the early 20th century, the “owners” of works could be located relatively easily, be they artists or publishers. The difficulty of entering reproduced media (i.e., films, popular music) into the public domain lies not only in the fact that these are largely collaborative art forms, but because an industry of licensing and book-length corporate contracts has made it nearly impossible to figure out who actually “owns” older works of art (hint: it’s rarely the filmmakers or musicians themselves).
But even such limitations have spawned new opportunities, if not an alternative to the public domain itself: the regular discovery and exhibition of “orphaned” films, or works “presumably under copyright” whose “owner cannot be identified or located.” An interesting byproduct of the impossibly complicated legal scenario of copyrighted reproduced media, orphaned films have proven a rich research for archivists and film historians. Since 2006, an entire symposium dedicated to orphan films has traveled the United States.
But orphan films also prove the need for a coherent, consistent, reasonable, loop-hole free copyright and public domain laws that exists for the eventual benefit of people who care about the movies, and not exclusively for the benefit of those who profit from them into perpetuity. A less delayed and tangled public domain route would ideally mean a shorter distance between audiences and works: repertory theaters could screen older titles without fear of a lawsuit, independent archivists could find ways to preserve and distribute vulnerable films, and older media can be the palette on which new works are created. After all, wouldn’t the world simply be a nicer place if everybody could see Elvis’s best movie for free?