Lawyers, Film, and Money: Copyrighting the First Movies

Mises Daily: Wednesday, November 13, 2013 by Brian LaSorsa (http://mises.org/daily/author/1539/Brian-LaSorsa)

Copyright originated hundreds of years ago as a legal and economic tool meant to protect and incentiv ize artistic creations. Indeed, the concept is explicitly listed in the United States Constitution as a means of securing for authors the exclusive right to their w ritings. However, copyrights applicability wasnt always so clear when technological advancements occurred at a faster pace than legislative amendments. The artistic creations that the Constitution described had been first and foremost a reference to literature and other written w orks. The advent of film, especially as a creativ e medium, presented a challenge to this historical understanding. Filmmakers fought tooth and nail to change copyright statutes into a concept more fitting to the new economy, but decades passed before legislators took real initiative and laid the foundation for modern protections against artistic infringement. It is natural that legislation be reactionary. Lawmakers failures to adapt to technological innov ation is not a failure of gov ernment per se but rather an unavoidable fact that people cant predict which inv entions will come to fruition. So, it follows that legislators only had the chance to think about a potential copyright overhaul after films became more than a trend. But filmmakers, whose bank accounts were directly and immediately affected by what they deemed artistic infringement, were quicker to the punch. Since they could not yet copyright films, Thomas Edison and others began to register each and every frame as separate, copyrighted photographs, a medium already recognized by law as rightful property. In this sense of the word, the first copyrighted film technically appeared in the 1890s. Other tactics pursued by filmmakers included the placement of signature markers (e.g., roosters) within the mise-en-scne in order to designate w hich studio produced it. These makeshift strategies allowed audiences to become familiar w ith specific companies creations, but they didnt do much to deter piracy. And then there w as the trouble of infringers w ho stole, as it were, other peoples original ideas and reproduced them without permission. In 1907, director Sidney Olcott released Ben Hur . The silent film was based upon a novel published about 30 years earlier, a fact to which Olcott happily admitted. How ever, the filmmakers never received permission from the books author to do so. The authors publisher responded with a law suit, insisting that moving pictures based upon copyrighted fiction should be treated under the law as a stage representation, thus necessitating the authors permission for use. The lawsuit w as the first of its kind and attempted to clarify at last the industrys obscure property conflict. The U.S. Circuit Court of Appeals issued its first ruling two years later: it agreed with the book publisher. Olcott strongly contested this ruling and made it clear that film was a unique medium on which he spent significant time, money, and energy producing the work regardless of its inspiration. He claimed that his film w as only an exhibition of pictures, and not a dramatic performance w ithin the meaning of the copyright law.[1] Alas, he didnt conv ince the court. Many people were disappointed in the rulings ambiguity, though, which permitted Olcotts production of the film but not his presentation of it. In other w ords, The court draws a decided distinction between moving pictures on the film and mov ing pictures projected on screen. It seems that a moving picture film is a photograph which could not infringe on a book while a projection of the same film may be a dramatization.[ 2] Uncertainty drove the Ben Hur case to the Supreme Court, to which well return shortly.

The international sphere took similar steps toward a more concrete understanding of copyright in the meantime. French dramatist Georges Courteline sued a film company in 1910 for allegedly using scenes from his play Boubouroche in its mov ing picture show. Before this case, there was no explicit law or court ruling that required cinematograph operators to receive permission from playwrights before producing adaptations. Courteline may not have personally benefited from the courts ruling he lost on grounds that the adaptation was too dissimilar from his play to constitute infringement but it certainly changed the French governments interpretation of copyright law. The ruling explained that the plays plot and its situation belong to [Courteline] as w ell as the dialogue, which one film critic boiled dow n in optimistic terms: Although losing his own case in this instance, the dramatist has succeeded in gaining a victory for his profession.[3] Things w ere heating up in the United States one year later. Aside from a few related incidences and court rulings, copyright enforcement in the film industry essentially ranged from a verbal warning to an uncomfortable slap on the wrist. The Copyright Act of 1909 extended time limits for ownership but had not yet been invoked in order to protect moving pictures. In 1911, though, the State of New York seized 20,000 feet of film from the Columbia Film Company, claiming it had infringed upon the Monopol Film Companys copyright. This action, rightly deemed the first of the kind that has been issued under the copyright law of 1909, w as a landmark for three reasons.[4] First, it acknowledged the laws inclusion of film, which had been merely implicit to that point. Second, it recognized that these copyright privileges could be transferred internationally through leases, as the Monopol Film Company had done with the Milano Film Company in Italy. And, third, it confirmed that filmmakers could register their adaptations of public domain works in this case, Dante Alighieris The Inferno as original creations. The law under which these actions were taken w as not superseded for about 70 years. Only a few months later, the Supreme Court issued its ruling on the Ben Hur case and affirmed the low er court: director Sidney Olcott was guilty of infringing upon the copyright of the publishing company whose book inspired his film. Justice Oliver Wendell Holmes wrote, Authors have the exclusiv e right to dramatize any of their w orks [and we] are of the opinion that Ben Hur was dramatized by what was done.[5] The judicial branch had decided once and for all that exhibitors, if their films were based on a previously copyrighted work of fiction, could no longer project them for an audience without the original authors permission. At that point, the future of intellectual property as it pertained to artistic creations fell into place more rapidly than ev er before in history. Congressman Edward W. Townsend introduced a bill in the House of Representativ es shortly thereafter. Its statutes stipulated that the federal government increase the penalties laid against copyright infringers whose actions harmed the film industry, including criminal fees of up to $200, $1,000, and $5,000 for newspapers, exhibitors, and distributors, respectively. [6] The bill spent less than four months in the chambers prior to passage. One reporter called its seamless transition into law a proper extension of [copyright] which includes the motion picture.[7] Henceforth, the tone newspapers used in reference to copyright became less aggressive and less antagonistic. These publications, reassured by a series of court cases and legislative acts that seemed to demonstrate the government was taking their industry seriously, approached the topic in a friendlier manner. Editorials transformed from scathing critiques of inconsistent copyright enforcement to peaceful instructions on how filmmakers could go about registering their works more easily, even offering financial tips for independent artists who needed to nav igate the expensive process. [8] The amiable environment continued after 1912, not without exception but w ithout the perpetual fear of infringement on every filmmakers lips. The official standardization of intellectual ownership quelled much dismay about an industry run amok and, in my opinion, allowed filmmakers to focus on the innovation, rather than on policy, that energized the United States as an industry superpower during and after W orld War I.

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Brian LaSorsa is a columnist in Phoenix, Arizona. He has contributed to the Washington Examiner and the American Conservative and regularly blogs at the Huffington Post. Contact him on Twitter (https://twitter.com/BrianLaSorsa). See Brian LaSorsa's article archives (ht tp:// mises .org/ daily /author/15 39/Br ian-L aSors a) . You can subscribe to future articles by Brian LaSorsa via this RSS feed (http://mis es.or g/Feeds/ar ticles.ashx? Aut horId=1539 ) .
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Notes
[1]

Legislation and Legal Notes (http://la ntern.mediahist .org/ catalog/nickelo deon1 2elec _0225 ) , The Nickelodeon , Ben Hur Case
(http://la ntern.mediahist .org/ catalog/nickelo deon1 2elec _0225 )

May 1909 (p. 124).

[2]

, The Nickelodeon , September

1909 (p. 72).

[3]

Authors Copyright Protected in Paris (http://la ntern.mediahist .org/ catalog/nickelo deon0 4elec _0105 ) , The Seize Moving Picture Films (http://lantern.media hist.org/c atalo g/mot ography56elec_0 455) , Motography, Some Legal Decisions of 1911 (htt p://lanter n.mediahis t.org /cata log/motogr aphy7 8elec _0663 ) , Motography , Picture Copyright Bill in House (http://lantern.media hist.org/c atalo g/mot ography78elec_0 663) , Motography, Copyrighting Moving Pictures (htt p://lanter n.mediahis t.org /cata log/motogr aphy7 8elec _0663 ) , Motography , Film Copyrights (http:/ /lant ern.mediahist.o rg/ca talog /moto graphy78elec_06 63) , Motography, September 1912

Nickelodeon, August 1910 (p. 98).

[4]

August 1911 (p. 64).

[5]

January 1912 (p. 5).

[6]

April 1912 (p. 161).

[7]

August 1912 (p. 102).

[8]

(p. 192).