713 Orphan Works Paper Gatz

Janet Gatz 10/29/2016
LIS 713
Film Preservation and Orphaned Works
The preservation of film has been a complicated conundrum since the end of the 19th
century. Even with the technological improvements over the decades, the materials used break
down much faster than those of books and need to be updated or repaired more often. This
process is expensive and time consuming for their owners, and often the future profits a film
may decide how much effort is put into their preservation. It has only been in the end of the
20th century that preservation of a different category of film has come to the forefront. Films
that are not profitable or have become lost in the wasteland of fair use. Many of these works,
referred to as orphan films, are important for their historical or cultural significance. Currently,
only “20% of all silent films ever filmed are still in complete form, and half of all films made
before 1950 no longer exist.”1 Their preservation has been hindered by several factors. While
many have attempted to push film preservation in the past, overall expense has resulted in non-
studio film preservation being a low priority until the latter half of the 20th century. There are
also several hindrances caused by the materials used in the early part of film history being much
more volatile than current practices. Finally, orphan film’s very nature has a muddled
association with copyright laws causing archivists, universities, and libraries to jump through
multiple hoops in an attempt to preserve them. It is only in the past two decades that the plight
of these films has been given a stronger voice.
1
“National Film Preservation Board: Preservation Research,” Library of Congress, accessed 10/31/2016,
https://www.loc.gov/programs/national-film-preservation-board/preservation-research/
The definition of an orphan film has varied since the late 1990s. The term was originally
a colloquialism used by film archivists for any motion picture that was no longer under
copyright by a studio.2 The Library of Congress defined Orphan works films “that lack either
clear copyright holders or commercial potential to pay for their continued preservation”.3 These
titles are not normally Hollywood studio works, but other type of works made on a multitude of
film stocks; such as short films, independent or art house works, student films, some television,
news reels, silent films, home movies, and any motion picture whose studio is now defunct or
the copyright has expired. If it is recorded but currently has no known owner, it can arguably be
filed under the banner of an Orphan Film.
Many of the current problems with film preservation can be traced back to the history of
the medium. Even though early methods of filmmaking had existed since the late 19th century,
the United States did not have a copyright system for film until 1912.4 Despite this lack of
authority control, the Library of Congress stored 35mm nitrate films since almost the beginning
of the industry. While the Library of Congress did house hundreds of nitrate based film reels,
many early films were stored in a method known as Paper Prints. A Paper Print film was a
unique way of keeping a film’s property rights before 1912. Filmmakers would photograph
2
Emily Cohen, “The Orphanista Manifesto: Orphan Films and the Politics of Reproduction,” American
Anthropologist, Vol. 106, No 4 (Dec. 2004): Pg. 720, Accessed October 11, 2016,
http://www.jstor.org/stable/3567190
3
“National Film Preservation Board: A Study of the Current State of American Film Preservation: Volume 1,”
Library of Congress, accessed October 26, 2016, https://www.loc.gov/programs/national-film-preservation-
board/preservation-research/film-preservation-study/current-state-of-american-film-preservation-study/
4
each cell of a film and copyright the photograph, thus keeping the rights to their film in reams of
individual images instead of on celluloid nitrate.5
Unfortunately, it was decades before anyone would do anything with these works other
than store them. The earliest attempts at preservation did not occur until the late 1930s with
Library of Congress copyright clerk Howard Lomar Walls. Walls believed that the films in that
the Library of Congress stored were of historically and culturally significant, and should be
restored and accessible to the public.6 The Librarian of Congress Archibald MacLeish may
have agreed, but with no funding available, could only grant Walls the ability to investigate how
the now fragile paper print collection could be copied onto celluloid.7 Through work with the
National Archives, Walls and cinematographer Carl Louis Gregory they succeeded in creating a
method of transferring print materials onto film. The National Archives was involved because
they had the right to “accept, store, and preserve motion-picture films and sound recordings
pertaining to and illustrative of historical activities in the United States and in connection
therewith maintain a projection room for showing such films and reproducing such sound
recordings”.8 These methods and Walls’ continued push for preserving the films in the
Library’s copyright collection gained enough attention that the Library of Congress Motion
5
6
7
8
Anthony Slide, Nitrate Won’t Wait: A History of Film Preservation in the United States, (Jefferson: McFarland &
Company, 1992), Pg. 26-27
Picture Project was created in 1945.9 The preservation project only lasted a couple years before
it was closed and efforts to preserve and make the films in the Library of Congress archives
more publically available faded with it.
Even though the Project was closed, the movement for film preservation did not
completely vanish. Archivists continued to advocate for the preservation of films, especially the
older nitrate based reels. The 1960s brought the rallying cry of ‘Nitrate Won’t Wait’, and
helped spurn on some assistance in funding film preservation. The movement focused on the
volatile nature of the oldest type of film stock; nitrocellulose. Despite the less flammable
acetate based film stock being available since around 1909, almost all 35mm films were made
using a nitrocellulose based film stock until the beginning of the 1950s.10 Cellulose nitrate is
and extremely volatile base thanks to its flammability and the intensity of the fire once it is
alight. The film itself extremely combustible, and, once it is alight, will create its own oxygen.
This makes the fire self-sustaining and almost impossible to put out once lit.11 The degradation
process of the material also makes such a fire much more likely if the film is not stored an area
with proper environmental control. Nitrate based film stock contains five stages of nitrate decay
before it is completely disintegrated. The third stage will cause the film to blister forming
nitrogen oxide, which in turn will react with moisture and become nitric acid further breaking
down the film and causing an autocatalytic reaction.12 Once cellulose nitrate film stock reaches
9
10
National Film Preservation Foundation, Film Preservation Guide, (San Francisco: National Film Preservation
Foundation, 2004), Pg. 8.
11
Foundation, 2004), Pg. 8.
12
Heather Heckman, “Burn after Viewing, or, Fire in the Vaults: Nitrate Decomposition and Combustibility,” The
American Archivists. Vol. 73 (Fall/Winter 2010) Pg.483, 492 Accessed 10/26/2016
http://americanarchivist.org/doi/pdf/10.17723/aarc.73.2.n2746075wr84356t
the third stage of film degradation it creates a chemical reaction that not only feeds itself, but
makes it more likely to combust.
The ‘Nitrate Won’t Wait’ movement not only helped bring in funds for preservation, but
also helped bring about an increased public consciousness about the plight of film
preservation.13 However, in 1979, Librarian of Congress Daniel Boorstin halted all work with
nitrate handling in Washington, including any screenings of works in the public record, after a
fire broke out at the National Archives.14 The Library of Congress would move their in house
preservation efforts to first Write Patterson Air Force Base in Dayton, Ohio, and then move
again in 2000 to the Library of Congress Audio Visual Conservation Center in Virginia.15 By
the 1970’s it wasn’t just nitrate films that were in need of preservation. Film stock made with
cellulose acetate had been used since the early 20th century, and polyester based film stock had
replaced the use of nitrate in the mid-1950s. While these two other film sock materials were
much less likely to combust or keep a flame, they were still capable of physical damage from
overuse or mishandling. There had also been a wide variety of film sizes for use outside of the
motion picture industry. 16mm film was originally designed for home use and has in
production since the early 1920s, with 8mm film stock released for public use in 1932 and
13
Company, 1992), Pg. 1-2
14
15
Anthropologist, Vol. 106, No 4 (Dec. 2004): Pg. 721-722, Accessed October 11, 2016,
Super 8mm film arriving in the 1960s.16 Each of these different level of films required funding
for different machines to allow archivists to preserve and repair the films in storage.
The increased awareness of film preservation also brought to light other pieces if
important information. It allowed works that had long been ignored to gain attention, and it also
brought to light the limitations the Library of Congress had in the past when choosing what to
include in their collection. One example of this is newsreels. The director of the American
Film Institute also went to Congress in 1979 to request funding for the preservation of
newsreels. It was decided later that the National Archives, not the American Film Institute
would be the organization that should focus on this type of work’s preservation. However,
looking into the storage of copyrighted material at the Library of Congress, it is noticeable that
many of the newsreels that you would think should be there, are not. When the Library of
Congress attempted to store these reels they could not take all of them from every news
organization at the time. There would not be enough space, and most of the reels on a given
subject would contain overall content.17 Instead, the Library of Congress chose to trade off
which news organization’s reels it would store in the copyright deposit instead of depositing all
of them.18 However, even with selective collecting, the sheer number of reels was daunting.
Newsreels had been a staple of American Cinema from 1911 to 1960, and “each weekly reel
16
Foundation, 2004), Pg. 7-9
17
Company, 1992), Pg. 25-26
18
Company, 1992), Pg. 25-26
could be up to 1000 feet long”.19 Money had been set aside for news features and shorts, but
newsreels had been neglected and ignored due to lack of funding.20
The push for increasing funding toward film preservation continued into the 1980s.
1988 finally brought the passage of the National Film Preservation Act, and the formation of the
National Film Registry. The Registry selects, “25 films every year that showcase the diversity
of American film heritage and to increase awareness for its preservation.”21 The nomination
process is open to the public for the Library of Congress to choose from.22 The registry works
with independent archivists, museums, and studios to get the best version of the works after they
are selected to be stored by the library, or, if the original is already well preserved by their
owning body, the Library will hold a reserve copy.23 The decision to have the Registry’s
nominations come from the public is noticeable when you see what films have been chosen over
the years. Many are popular classics that are still owned by their original studios. Of the 675
films currently in the registry, only 92 are old enough to no longer be under copyright. Of those
92, only 6 were added to the registry prior to the Library of Congress’ 1993 film preservation
study that emphasized orphan films as the greatest risk to be lost.24
19
Company, 1992), Pg. 25
20
Company, 1992), Pg. 25
21
“National Film Preservation Board: About the Program,” Library of Congress, Accessed October 26, 2016,
https://www.loc.gov/programs/national-film-preservation-board/about-this-program
22
“National Film Preservation Board Frequently Asked Questions,” Library of Congress, accessed 10/28/2016,
https://www.loc.gov/programs/national-film-preservation-board/film-registry/frequently-asked-questions/
23
24
“National Film Preservation Board: A Study of the Current State of American Film Preservation Part 1,” Library of
Congress, accessed 10/26/2016, https://www.loc.gov/programs/national-film-preservation-board/preservation-
research/film-preservation-study/current-state-of-american-film-preservation-study/
While the 1993’s study emphasized the importance of preserving the newly coined
‘orphan film’, the late 1990’s brought some difficulty to this process. The in 1996, National
Film Preservation Foundation began in to focus their efforts on preserving orphan films.25 This
effort became somewhat hindered when the Sonny Bono Copyright Term Extension Act was
passed in 1998. This law changed the length of time a work was considered under copyright. It
extended the time a work could become fair use to the life of an author plus 70 years, or 95
years for works made for hire.26 It also retroactively included any works that were under fair
used but would be now under copyright. In one fell swoop thousands of orphan works, many of
them commercially insignificant, were back under the ‘protection’ of their previous owners.
The fight now included not just preserving works that were deteriorating rapidly, but finding the
owners and getting permission to preserve the works that had just lost their status as part of the
public record. There was also an attempt to codify the rules governing the use of orphan works
in 2006. This law would have granted guidelines for people viewing or using possible orphan
works. It also would have allowed libraries the ability to preserve, display, or use a work as if
they were under fair during the last 20 years of a copyright as long as it was not made available
for a reasonable price.27 Another similar law was brought to the Senate in 2008. While it did
pass in the Senate in September 2008, it did not pass through the House of Representatives.28
25 Eric J. Schwartz, “Access to Orphan Works: Copyright Law, Preservation, and Politics,” Cinema Journal, Vol. 46,
No. 2 (Winter 2007), Pg. 140 Accessed from JStor October 11,2016,
26
Eric J. Schwartz, “Access to Orphan Works: Copyright Law, Preservation, and Politics,” Cinema Journal, Vol. 46,
27
Eric J. Schwartz, “Access to Orphan Works: Copyright Law, Preservation, and Politics,” Cinema Journal, Vol. 46,
28
“S. 2913 (110th): Shawn Bentley Orphan Works Act of 2008”, GovTrack, Accessed October 28, 2016,
https://www.govtrack.us/congress/bills/110/s2913
The copyright changes made in the late 1990s may have made preservation more
complicated, but the emphasis on saving orphan works has been increasing it seems almost
exponentially. In 1999, the first of what would become many Orphan Film Symposiums was
formed. These conferences bring a combination of academic, archival, film makers, and
curators to screen and study films, clips, and reels that had previously been long forgotten. 29
The push for the preservation and viewing of orphan films has a surprisingly huge appeal. This
is probably due to the vast types of works that can be placed under the category. An advocate
can be someone who is fighting to save our silent films or home movies from historical figures
that they deem to be part of America’s heritage, or they could be individuals demand open and
honest transparency by allowing governmental surveillance or medical films to be viewed.30
Film Symposiums bring light to the works that are lost without current preservation efforts.
While looking into these symposiums, I noticed multiple onetime events that have occurred at
universities over the years. Many, like the Midwest Orphan Film Symposium 2013, did so with
association of the NYC/Library of Congress Symposium in an attempt to highlight their own
orphan film collection.31 All of the events were sponsored by the university’s library or library
archive.
The opinions on film preservation and the emphasis on preserving orphan films has
changed drastically over the years. The idea of preserving film was not even a concept until
almost 40 years after the first works were made. Over time, problems with funding and lack of
29
Dan Streible, “The Role of Orphan Films in the 21st Century”, Cinema Journal, Vol. 46, No. 3 (Spring 2007), Pg.
125, accessed from JStor October 10, 2016,
30
Dan Streible, “The Role of Orphan Films in the 21st Century”, Cinema Journal, Vol. 46, No. 3 (Spring 2007), Pg.
126-127, accessed from Jstor October 10, 2016,
31
“2013 Orphans Midwest: Materiality and the Moving Image” Indiana University Cinema, accessed October 31,
http://www.cinema.indiana.edu/?post_type=series&p=4432
awareness have caused many works to disappear in fire, or crumble to dust due to insufficient
storage practices. However, since the end of the 20th century, the new focus has been on
preserving those works that were otherwise forgotten. 92 films on the National Film Registry
have an original copyright of 1923 or earlier. This is the year that National Film Preservation
Board says is the border of fair use.32 There also may be other 675 there may be a handful of
works whose owners have died with no heirs, or have forfeited their rights. Outside of the
Library of Congress, there are universities, libraries, museums, and independent archives whose
collections include original films, newsreels, student works, home movies with historical value,
and silent movies. While many of these have been preserved, many others are unable to due to
lack of funding or equipment. The hope is that as the interest for the lost and forgotten will
increase thanks to events like the Orphan Film Symposium or from public and private archives
converting their films to digital and posting them on YouTube. If this interest stays strong,
perhaps there is a better chance that the 50% of films made before 1950 that are still intact, will
still be available to view in another 50 years.
32
Bibliography
Cohen, Emily. “The Orphanista Manifesto: Orphan Films and the Politics of Reproduction,”
American Anthropologist, Vol. 106, No 4 (Dec. 2004): Pg. 721, Accessed October 11, 2016,
Govtrack. “S. 2913 (110th): Shawn Bentley Orphan Works Act of 2008”, Accessed October 28,
2016, https://www.govtrack.us/congress/bills/110/s2913
Heckman, Heather. “Burn after Viewing, or, Fire in the Vaults: Nitrate Decomposition and
Combustibility,” The American Archivists. Vol. 73 (Fall/Winter 2010) Pg.483, 492 Accessed
10/26/2016 http://americanarchivist.org/doi/pdf/10.17723/aarc.73.2.n2746075wr84356t
Indiana University Cinema. “2013 Orphans Midwest: Materiality and the Moving Image.”
accessed October 31, http://www.cinema.indiana.edu/?post_type=series&p=4432
Library of Congress. “National Film Preservation Board Frequently Asked Questions,”.
Accessed 11/01/2016. https://www.loc.gov/programs/national-film-preservation-board/film-
registry/frequently-asked-questions/
Library of Congress. “National Film Preservation Board: Preservation Research,”, accessed
10/31/2016, https://www.loc.gov/programs/national-film-preservation-board/preservation-
research/
Library of Congress. “National Film Preservation Board: About the Program.” Accessed
October 26, 2016, https://www.loc.gov/programs/national-film-preservation-board/about-this-
program
Library of Congress. “National Film Preservation Board: A Study of the Current State of
American Film Preservation Part 1.” accessed 10/26/2016,
https://www.loc.gov/programs/national-film-preservation-board/preservation-research/film-
preservation-study/current-state-of-american-film-preservation-study/
National Film Preservation Foundation, Film Preservation Guide, San Francisco: National Film
Preservation Foundation, 2004.
Schwartz, Eric J. “Access to Orphan Works: Copyright Law, Preservation, and Politics,”
Cinema Journal, Vol. 46, No. 2 (Winter 2007), Pg. 139-145 Accessed from JStor October
11,2016, http://www.jstor.org/stable/4137188
Slide, Anthony. Nitrate Won’t Wait: A History of Film Preservation in the United States,
Jefferson: McFarland & Company: 1992
Streible, Dan. “The Role of Orphan Films in the 21st Century”, Cinema Journal, Vol. 46, No. 3
(Spring 2007), Pg. 124-128, accessed from JStor October 10, 2016,

713 Orphan Works Paper Gatz

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Janet Gatz 10/29/2016

Film Preservation and Orphaned Works

of these films has been given a stronger voice.

filed under the banner of an Orphan Film.

individual images instead of on celluloid nitrate.5

more publically available faded with it.

makes it more likely to combust.

newsreels had been neglected and ignored due to lack of funding.20

study that emphasized orphan films as the greatest risk to be lost.24

honest transparency by allowing governmental surveillance or medical films to be viewed.30

association of the NYC/Library of Congress Symposium in an attempt to highlight their own

still be available to view in another 50 years.

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