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Lawyers, Film, and Money: Copyrighting the First Movies

Mises Daily: Wednesday, November 13, 2013 by 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, copyright’s applicability wasn’t 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 can’t 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-scène in order to designate w hich studio produced it. These makeshift strategies allowed audiences to become familiar w ith specific companies’ creations, but they didn’t do much to deter piracy. And then there w as the trouble of infringers w ho stole, as it were, other 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. How ever, the filmmakers never received permission from the book’s author to do so. The author’s 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 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 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 didn’t conv ince the court. Many people were disappointed in the ruling’s ambiguity, though, which permitted Olcott’s 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 we’ll return shortly.

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 The law under which these actions were taken w as not superseded for about 70 years.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

o rg/ca talog /moto graphy78elec_06 63) . September 1912 Nickelodeon. August 1910 (p.” Motography . See Brian LaSorsa's article archives (ht tp:// mises .mediahist .org /licenses/ by/3.0/) Notes [1] “Legislation and Legal Notes (http://la ntern. “Picture Copyright Bill in House (http://lantern.” The Nickelodeon . 161).org/ catalog/nickelo deon1 2elec _0225 ) .” The “Seize Moving Picture Films (http://lantern.mediahist .mediahis t.” /cata log/motogr aphy7 8elec _0663 ) .Brian LaSorsa is a columnist in catalog/nickelo deon1 2elec _0225 ) May 1909 (p. “Ben Hur Case (http://la ntern. 124). Arizona. [4] August 1911 (p. Contact him on Twitter (” Motography . [5] January 1912 (p. 64). 72). (http:/ /crea tivec ommons. [6] April 1912 ( daily /author/15 39/Br ian-L aSors a) . He has contributed to the Washington Examiner and the American Conservative and regularly blogs at the Huffington Post. [2] . 102). [7] August 1912 (p.mediahis t. 5). [8] (p.” Motography.” The Nickelodeon . [3] “Author’s Copyright Protected in Paris (http://la ntern.or g/Feeds/ar ticles.mediahist . . “Some Legal Decisions of 1911 (htt p://lanter catalog/nickelo deon0 4elec _0105 ) . You can subscribe to future articles by Brian LaSorsa via this RSS feed (http://mis es. 98).org /cata log/motogr aphy7 8elec _0663 ) .org/c atalo g/mot ography78elec_0 663) . 192).ashx? Aut horId=1539 ) . “Film Copyrights (http:/ /lant ern. September 1909 (p.” hist. “Copyrighting Moving Pictures (htt p://lanter atalo g/mot ography56elec_0 455) .