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The Fight for the Right to Copy

If the Supreme Court reverses a copyright extension act, there could be significant implications for movies


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."

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