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Speaking Up for Silent Films

Courts: If one man in entertainment industry gets his way, a copyright extension will be struck down, freeing old movies, books and songs.

October 09, 2002|DAVID STREITFELD | TIMES STAFF WRITER

As the Supreme Court hears arguments this morning about whether to strike down a law that extended copyrights by 20 years, Michael Agee will be one of the few people in the entertainment world rooting for the justices to kill the protection.

"A film is an expression of ideas, and copyright in effect builds a fence around those ideas," said Agee, who runs Hal Roach Studios, a fabled silent-movie operation, as a one-man enterprise on behalf of an investment group. "Do we want a society where every thought, every expression, every story is owned by someone?"

To most of Agee's colleagues in the film business, the answer is a resounding "yes."

If the court finds the Sonny Bono Copyright Term Extension Act unconstitutional, it will cut the term from 95 years to 75, which is what it was before the Bono Act became law in 1998. Material from the mid-1920s immediately will start entering the public domain--everything from music by Irving Berlin to stories by Ernest Hemingway to novels by Virginia Woolf.

The cache also includes 60 Laurel and Hardy shorts to which Roach Studios owns the rights. If the Bono Act disappears, any fan or film company could issue its own versions of the comedy classics. Over the last decade, Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's silent films. Roach also would lose any potential income from documentary makers who want to use Laurel and Hardy snippets.

But Agee, who lives in Yorba Linda, doesn't care about that.

The 54-year-old film buff, a cousin of critic and "African Queen" screenwriter James Agee, is more than a casual supporter of Stanford professor Larry Lessig's attempts to overturn the Bono Act. With the help of a Duke University law professor, Agee filed a 30-page supporting brief with the Supreme Court. It argues that Hollywood's attempt to uphold the law is encouraging a form of cultural murder--"the irrevocable physical decomposition of a large fraction of the golden years of American cinema."

It's a lonely position. Just about every artists' group in the country, it seems, has filed briefs arguing that the law should be left untouched: the Motion Picture Assn. of America, the Songwriters Guild of America, the Recording Artists Coalition, the Recording Industry Assn. of America, the Nashville Songwriters Assn. International, the Directors Guild of America, ASCAP and BMI.

What's at stake is not only money--the reissue of classics funds the production of new films, the MPAA notes--but the question of whether American culture should have a gatekeeper deciding which long-ago artistic works are allowed to be available.

A footnote in the MPAA brief, for instance, asserts that what happened with Frank Capra's "It's a Wonderful Life" shows "copyright protection promotes preservation and distribution." When the film was believed to be out of copyright in the 1970s, the motion picture association says, the copies shown were "horrid." It was only when Paramount gained control of the film by exploiting the copyright in the underlying short story that the picture quality was restored and the film returned to its full length, the industry group argues.

But this take on history, supporters of the public domain point out, skips over how the once-obscure movie became a beloved touchstone in the first place: television stations showed it repeatedly during the years when it was believed to be out of copyright.

"Other lost classics would find new life in the public domain because they can be made available by anyone," Agee said. "There are works out there that people haven't thought about for decades. But if there's a dime to be made, people will put them out. Dimes don't mean anything to billion-dollar corporations, but they will to smaller players."

Many Films Are Lost

Only 20% of the films made in the 1920s still exist, according to the Library of Congress. Sometimes, destruction came at the hands of the studios, who wanted to salvage the valuable silver from the nitrate reels. In other cases, the films wasted away from simple neglect.

An unknown but higher proportion of the era's blockbusters, the full-length feature films, survive. Some are readily available, and some are available only with difficulty in secondhand versions. Many languish unseen in studio vaults, in the holdings of amateur and professional archivists and at the Library of Congress.

Even Harold Lloyd's "Safety Last," which has the iconic scene of the hero dangling from a clock--probably the most famous image from the silent era--is generally unavailable.

So are Michael Curtiz's "Noah's Ark" and Clarence Brown's Klondike tale "The Trail of '98," both epics that were the "Titanic" of their day. Capra's "Power of the Press," starring Douglas Fairbanks Jr. as a cub newspaper reporter, also is highly regarded but extremely difficult, if not impossible, to see.

The motion picture association's brief takes direct aim at Agee's assertions, saying it instead will "offer the Court a real-world perspective."

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