It’s a Wonderful Copyright Mess

Why does It’s a Wonderful Life now only air twice during the holidays — and only on NBC? Growing up in the 1980s, I saw It’s a Wonderful Life several times each year. It was a staple of hundreds of networks. It was on the Family Channel, on the local independent TV station, and on innumerable other venues.

The great mystery revolves around our nation’s copyright laws, established in the copyright clause of the Constitution. Article 1, Section 8, Clause 8 explains the purpose of the copyright power given to Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The Copyright Clause recognizes two basic facts. First, there is the concept that many people who have pirated the latest music and movies, as well as those who complain about pharmaceutical companies making big profits off new discoveries, ignore. If you want new music and advances in science, people must be able to make a profit. Because of that, copyrights and patents are necessary.

Second, the clause recognizes that the purpose of copyrights and patents is primarily the advancement of civilization — not an ongoing perpetual grant for the copyright holder. The advance of science demands that a patent lapse so that others are able to incorporate that patented design into their future plans. The same is true of a copyright. When something is written or produced, it is the property of the writer. However, after a time, these intellectual properties become part of common culture. There is no copyright on Shakespeare or the poetry of Walt Whitman. These authors wrote their work, collected their benefits, and moved on.

Which brings us back to the case of It’s a Wonderful Life. When the film was released in 1946, it was given a 28-year copyright term which was eligible for a 28-year renewal. For whatever reason, a request wasn’t put in for renewal, and it was believed to have fallen into the public domain in 1975. Had it not connected with the American people on its rediscovery, it would have become a resident of dollar DVD bins, like other public domain mainstays such as the Fleischer Superman cartoons or Bill Cosby’s TV movie Tell All My Friends on the Shore.

However, the movie studio smelled money. Thus, it fought for a decade until it regained control of the film. The studio argued that while the film’s pictures had entered the public domain, the story which the studios had bought the rights to had not, and therefore the film could not be shown. Thus, this Christmas Eve, NBC will show a 63-year-old movie based on a 70-year-old short story and will pay out handsome royalties to a company that had nothing to do with the release of the film other than buying the company that released it. How exactly does this contribute to the progress of the useful arts?

The first Copyright Act in 1790 set the term of the federal copyright for 14 years, renewable for 14 additional years. Rufus Pollock, an economist at Cambridge, mathematically concluded in 2007 that 14 years was the ideal length of copyright protection. As with most things, though, America has gone the other way with absurd lengths of copyright protection, with ever-lengthening terms.

All of the changes in copyright law have not been negative. Under the 1790 law, Charles Dickens got cheated out of royalties in the United States, as foreign authors weren’t protected. The horror classic Night of the Living Dead became a legal horror story for its creators when its theatrical distributor failed to put a copyright notice on the released print, thus dropping it into the public domain upon its release and depriving the creators of any TV or DVD royalties. New copyright law ensures that won’t happen, as copyright notices aren’t required.

Unfortunately, it also has created some absurd situations. In 1998, with the first Mickey Mouse cartoon, Steamboat Willie, set to enter public domain in 2003 after 75 years of copyright protection, Congress passed a bill extending all renewed copyrights by twenty years and named it after that noted legal scholar Sonny Bono.

The Sonny Bono Copyright Term Extension Act has had some interesting consequences in nearly every medium imaginable. In the realm of Christian worship, “Turn Your Eyes Upon Jesus” (copyright 1922) can be used freely by any worship leader, while churches will have to pay royalties if they want to legally sing “Great is Thy Faithfulness” (copyright 1923) before 2018. In the realm of detective fiction, all the Adventures of Sherlock Holmes are in the public domain except for the last ten, which are set to expire between 2018 and 2022.

However, the key word here is “set to expire.” Will any of these works, from The Adventure of the Retired Colourman to Steamboat Willie, actually enter the public domain? I doubt it. Rep. Mary Bono Mack (R-CA) gave a clue that this was just the first of many copyright extensions. In support of her bill, she declared her support for long-time MPAA president and lobbyist Jack Valenti’s concept that copyright law ought to be extended to “forever minus one day,” as it would be unconstitutional to extend them forever. Disney will never let Pinocchio, Snow White, or Sleeping Beauty enter the public domain, even though, ironically, it was able to make these films because of the public domain.

However, the eternal copyright poses a problem because it goes in direct contravention of why the Constitution granted the copyright power. The goal was to advance the arts and sciences through the creation of a rich cultural heritage. Instead, copyright renewals for terms that may last nearly a century have imperiled our cultural heritage. Our laws have been made with big successful films in mind that are critical and commercial successes that can be counted on to turn studios a profit year after year. But only 2% of works published between 55 and 75 years ago maintain any commercial value. In the vaults of film studios are thousands of hours of movies and television shows that have not seen the light of day in years. The physical quality of the prints decays over time.

Already several films have suffered from death by copyright.

Many out-of-print books that could be re-released, or even slightly revised for modern audiences, remain not only out of print but unprintable due to copyrights that passed to disinterested parties. Consider the Mr. and Mrs. North books, which were extremely popular in the 1940s and 50s, but have been out of print for 25 years. The first novel is set to come into the public domain 95 years after its 1940 release, in 2035. It may be available through Project Gutenberg, or a successor site, provided an actual copy survives that long.

In addition, forces beyond the market threaten many of these works, such as the nefarious political correctness that reared its ugly head when the Fox Movie Channel canceled a Charlie Chan marathon due to protests from Asian pressure groups. The irony is Charlie Chan was created in the 1920s by novelist Earl Diggers to combat the portrayal of evil Asians, like Fu Manchu, with a brilliant and benevolent police inspector. Chan was popular, appearing in 37 movies. For some modern pressure groups, he was not sexual enough and acted subservient and overly polite. (Apparently, the films should have featured an Asian version of Shaft in the 1930s.)

To compound matters, Fox controlled the rights to these films and none were available on DVD, and many of the VHS tapes are no longer available. Fox eventually aired the films, however, with an extra that fans were sure to love: a panel of Asian film actors and critics to complain about the films and American society in between the movies.

Most of the Charlie Chan films have since made their way onto DVD, however the incident illustrates the risk of giving Hollywood the rights to eternally control cultural treasures. Those films and books which are viewed as out of line with the views of some pressure groups could have public access severely restricted or revoked, all under the guise of the copyright, which was designed to encourage these treasures’ development.

How can we restore sanity to our copyright system and preserve American culture?

First, there should be no further extension of copyright protection. Ninety-five years is far more than enough protection.

Secondly, Congress should approve the Public Domain Enhancement Act, which would require U.S. copyright holders of works older than 50 years to pay a $1 fee every ten years to maintain their copyright. If it’s not worth $1 to a copyright owner to maintain the rights to their work, it should pass into the public domain.

Third, content creators should be encouraged to release their work into the public domain far earlier than the current limits. Most people don’t care what a writer who has been dead seventy years wrote. By releasing their work into the public domain sooner, authors may ensure that their work continues to have life long after they’ve passed.

Disney and other nigh immortal media companies can be expected to demand another round of copyright extensions. If they continue to prevail, we will lose even more of our cultural heritage. The only real solution is writing copyright law that once again restores the Constitutional balance between the rights of content producers and the public.