A Case for Accelerating Copyright Expiration
On January 1st this year, works from 1927 entered the public domain. This includes the first talkie The Jazz Singer as well as Harold Lloyd’s masterpiece The Kid Brother and Alfred Hitchcock’s The Lodger.
While these laws also apply to music and literature, this essay will only deal with films and the public domain.
If the United States hadn’t changed their copyright laws twice, once in 1978, and again in 1998 in a bill (Sonny Bono Copyright Term Extension Act) named after the late senator and sometimes Cher collaborator Sonny Bono, we’d be talking about how Bonnie and Clyde (1967) was FINALLY entering the public domain this year. Instead we’re celebrating Alfred Hitchcock’s silent thriller The Lodger (1927) entering the public domain.
That’s 95 years of money being pulled from the same art object.
Often that 1998 bill has been called the “Mickey Mouse Protection Act” and Disney has lobbied for copyright protection heavily since 1990. But other corporations were supporters of the 1998 bill as well including Warner Brothers and Universal. Jack Valenti, the former head of the MPAA wanted copyright to last “Forever less one day.”
These are the kinds of laws that only benefit estates and corporations, while robbing society writ large of these works to be more broadly remembered in the culture. Countless films don’t have the resonance that Mickey Mouse has had and the “protection” of copyright has more or less made them forgotten in the culture.
It’s impossible to know for sure if allowing these works to enter the public domain would truly rescue any of them, but it would make the road to recovery have one less hurdle. Public domain allows repertory theatres to host screenings without fee (which can be a sizable chunk of any money made) and can help keep those important community spaces thriving.
While they entered the public domain in different ways, look at the way It’s a Wonderful life (1946) or Night of the Living Dead (1968) became a part of the popular culture thanks in part to their public domain status. With unfettered access to the work, people were given an extraordinary amount of opportunities (not always in the greatest of quality) to see the film, and in both cases allowed the film to be enjoyed by generations of filmgoers. There’s a debate worth having about the quality of those opportunities, bad dupes of mediocre film elements in many cases, but that wouldn’t be the case in 2023. We’re not talking about VHS recorded on EP now, high quality digital files can be copied ad infinitum at no loss from the initial film scan.
Not every film makes it to that 95 year mark and survives. For those collectors and archivists taking care of the films waiting to enter the public domain, an acceleration of this could help to see these prints come out of the woodwork, and keep what has been deemed by many as the “art form of the 20th century” to continue to dazzle audiences. And if that was truly the intention of the 1998 bill, to “stimulate the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality and accessibility of the public domain.” there would be the preservation of existing theatres and new prints of films to enhance the accessibility of the works of the public domain in the culture.
Many movie palaces face extinction in 2023, what would it do to be able to show the films that brought the theatres into prominence gratis? So many communities have science centers, libraries, museums dedicated to one niche or another…shouldn’t every community have an old movie house? Where history can be shared from one generation to the next? Wouldn’t a community be supportive of such an effort?
One only has to look at the Stanford Theatre in affluent Palo Alto to see a success story. I recently attended a screening of Buster Keaton’s The General (coincidentally just entering the public domain) and it was damn near close to a sell out for 1500 seats. The continued support of the Packard Humanities Institute keeps prices low, and that might be the thing that keeps audiences coming back (a double feature is $7 and each film is on 35mm) but there is an audience…something we’re told time and again is the problem. “No one will come.” But here they are.
These are laws created by people, and laws that can be changed by people.
If we were to accelerate the expiration of copyright, say 2 years for the next 20 years, that would split the difference and create a compromise from the two legislative movements that put us where we are today. 2024 could see 1928 and 1929 enter the public domain, ending with 2043 and 1966 and 1967 (Bonnie and Clyde) instead of the as currently legislated 1948.
What amounts to a rounding error for a studio, could result in a boon for repertory cinema, and an invaluable shot of adrenaline into the culture. Surely Warner Bros. Discovery can find a way to turn this into another tax break and everyone can win here.
Moreover, by stimulating the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality and accessibility of the public domain.