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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


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.

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