Lawyers, Film, And Money...n LaSorsa - Mises Daily

Lawyer s, Film, and Money: Copyr ighting the Fir st Mov ies 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 incentivize art istic creations. Indeed, the concept is explicitly listed in the United States Constitution as a means of securing for authors the exclusive right to their writings. However, copyright’s applicability wasn’t always so clear when technological advancements occurred at a fast er pace than legislative amendment s. The artistic creations that t he Constit ution described had been first and foremost a reference to literature and other written works. The advent of film, especially as a creat ive medium, presented a challenge to this historical understanding. Filmmakers fought tooth and nail to change copyright st atutes 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 innovation is not a failure of government per se but rather an unavoidable fact that people can’t predict which inventions 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 i nf ringement , we re 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 right ful 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., roost ers) within the mise-en-scène in order to designate which studio produced it. These makeshift strategies allowed audiences to be come familiar w ith specific compa nies’ creations, bu t they didn’t do much to deter piracy. And then there was the trouble of infringers who stole, as it were, ot her people’s 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. However, the filmmakers never received permission from the book’s author to do so. The aut hor’s publisher responded with a lawsuit, insisting that moving pict ures based upon copyrighted fiction should be treated under the law as a “stage representation,” thus necessitating the author’s permission for use. The lawsuit w as the first of its kind and attempted to clarify at last the industry’s obscure property conflict. The U.S. Circuit Court of Appeals issued its first ruling two years lat er: it agreed with the book publisher. Olcott s trongly 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 was “only an ‘exhibition of pictures,’ and not a dramatic performance wit hin the meaning of the copyright law.” [1] Alas, he didn’t convince the court. Many people were disappointed in the ruling’s ambiguit y, though, which permitted Olcott’s production of the film but not his presentation of it. In other words, “The court draws a decided distinct ion between moving pictures on the film and moving pictures projected on screen. It seems that a moving picture film is a photograph” — which could not infr inge on a book — “while a proj ection of the same film may be a dramatization.” [2] Un certa inty drove t he Ben Hur case to the Supreme Court, to which we’ll return shortly.

Lawyers, Film, And Money...n LaSorsa - Mises Daily

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