Saturday, March 12, 2011

Supreme Court Showdown!

Do you remember when "It's a Wonderful Life" was in the public domain? It was making money for a lot of people. Republic Pictures wanted all the money for themselves so they bought rights to something that might have a connection - either music rights or a short story published when the film came out. Then they told the world: "We now own the film. Stop using it as public domain or we will sue you." Their ownership claim was shaky, but no PD dealer wanted to invest $100,000 or more to contest, because all they could win was the right for everyone to again use it freely. That is the eternal plight of the little man vs. the corporation.

But we do have a champion who will fight for even bigger issues, not just copyright issues, but basic human rights when they are usurped by corporate powers. That hero is the Stanford Law School.

In the mid-1990s two changes to the US copyright laws were railroaded through by the big corporations. The law at the time allowed one year of music, books and films to enter the public domain each year, 75 years after originally published. Works from the early 1920s had started going PD. This could not be allowed to stand because soon sound films would become PD and even Mickey Mouse. A copyright extension bill, called the Sonny Bono bill, was rushed through that extended copyright terms to 95 years from the death of the author. Since movies are made by studios it generally means 95 years from the year of release. All films made in 1922 or earlier were frozen as being in the public domain, but 1923 films, which were still under copyright because of being renewed, would not become PD until 2018.

The Stanford Law School was unable to overturn the copyright extension law. Let's hope they can halt any further extension in a few years.

The other copyright change was messier and very possibly unconstitutional. A large number of foreign films had fallen into the public domain in the USA because they had never been registered, or registered improperly or without © notices or not renewed. Major films include Kurosawa and Bergman films like Rashomon, Seven Samurai, The Seventh Seal, Wild Strawberries, and also Breathless, Last Year at Marienbad, Buneul's Viridiana, Hitchcock's British films, Metropolis, Passion of Joan of Arc and many more. All of these I sold on 16mm in the 1970s before the advent of home video.

In 1994, Congress adopted legislation to move these works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention. The new law gave foreign companies two years in which to file new ownership papers with the Library of Congress. Most filings contain wording like:
Reg. under GATT/URAA restoration
The companies were supposed to have something to do with making the films in the first place. There was, in my opinion, massive abuse of the filings by companies that had no involvement. But the main point is that congress should not have the right under the constitution to remove any works from the public domain once they have fallen into it.

Stanford rightfully and to their great credit took up this cause on behalf of the public. Before proceeding Stanford needed plaintiffs or petitioners to work for. The first one was Lawrence Golan who conducted the Denver Symphony Orchestra (I think). They were suddenly asked to pay large amounts of money to conduct Russian compositions from the 1920s which had been in the public domain.

A lawyer called me one day around 2000 and asked if I wanted to be part of this lawsuit. I readily agreed. Over the years I have supplied lists of foreign films that I used to sell as PD, but don't anymore. Stanford does all the rest. Months and years have gone by between contacts. One day someone called and said, "Hi, I'm your lawyer." I replied, "What lawyer?" The conversation improved after that.

After ten years of ups and downs in court rooms, the case will be heard by the Supreme Court! This is a major milestone! Please go to the blog of the lead attorney, Anthony Falzone, and read Details Here.

There will be more to this story!

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