Introduction: Film and Copyright

American copyright law, based on the 1710 British Statute of Anne, is grounded in the US Constitution. Article 1, Section 8 provides Congress with the power to award authors and inventors a limited monopoly over their work. The purpose of copyright protection was, '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'. As stated in the 1984 Sony Corp. v. Universal City Studios decision, copyright serves an important public function: 'It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired'.

In 1790, US copyright law limited copyright protection to two 14 year terms. The length of the terms increased periodically until the 1909 Copyright Act when it was settled at two 28 year terms. In 1976, a revision in copyright law extended protection to the life of the author plus fifty years (or seventy-five years for a work for hire). In 1998, the Copyright Term Extension Act tacked on an additional twenty years of protection to works published prior to 1978.

Motion pictures were not covered as such by copyright law until the 1912 Townsend Amendment included them among the types of works covered. As Peter Decherney notes in his essay on 'Copyright Dupes', motion picture companies, such as the Edison Mfg. Co., initially attempted to copyright their films as photographs, relying on legislation dating back to 1865 that included photographs as copyrightable works. Looking at this pre-1912 period, Decherney likens it to the current concern for Digital Rights Management in the face of new media and the threat of piracy, arguing that new media always challenges the adequacy of existing law and frequently results in actual piracy or charges of piracy.

Prior to the 1976 Copyright Act, copyrighted works fell into the public domain after 28 years if their copyrights were not properly renewed. In 'Forgotten Faces: Why Some of Our Cinematic Heritage is Part of the Public Domain', David Pierce explains how hundreds of American films from the studio era lost their copyright protection. Readers interested in motion pictures in the public domain may wish to explore the following web site: www.publicdomaintorrents.com

As noted earlier, successive copyright term extensions, driven by intensive lobbying activities of crucial intellectual property industries – in particular, through the lobbying activities of the music and motion picture industries, have virtually eliminated the notion of a public domain.

Copyright law secures for the copyright holder a series of exclusive rights (to reproduce it, to prepare derivative works based on it, and to distribute or perform it), but it also acknowledges limits to the authors' rights – not merely in terms of duration but in terms of scope. Users of copyrighted material, such as the public (including scholars), also have certain rights acknowledged by copyright law. After a first sale, for example copyrighted works can be resold without the permission of or payment of a fee to the copyright holder. Used book, record, CD, and video stores (and internet sites such as Netflix) can thus legally re-sell or rent copyrighted material. Of course, what is being sold or rented is just a physical copy of the work, not any rights pertaining to it. And the first sale doctrine does not apply to electronic material that requires copying in order for it to be resold or transferred.

The Copyright Act of 1976 includes a section (#107) that provides for 'limitations on [the author's] exclusive rights' in the form of 'Fair Use'. Fair use includes reproduction of the work 'for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research'. However, as in the case of the duration of copyright terms, the concept of Fair Use has also undergone a process of redefinition in recent years. Copyright holders have attempted to control the use of their intellectual property. The Digital Millennium Copyright Act of 1998 sought to ensure that digitized intellectual property could be used/consumed only in...