by Peter Decherney
Columbia University Press, 2012
Had Hollywood’s copyright wars truly been Hollywood’s own, Peter Decherney’s book might not have been necessary. Unfortunately, few of us have had the strength to resist being [End Page 115] scooped up into widely publicized conflicts over copyright and the future of intellectual property—disputes often orchestrated by powerful forces for whom we, willingly or not, function as mouthpieces. This book steps back from the fray to offer a nuanced and detail-rich history of major copyright battles whose history reaches back to the beginnings of cinema and whose resolution (as well as irresolution) has shaped the US film industry.
Acting as a much-needed respite from strident headlines about media piracy and as an antidote to anxiety and moral panic, this book traces a long, conflicted history of copyright and moving images—not simply between distributors and the public but also within the media industry itself. Focusing on the push–pull relationship between media regulation and business development, University of Pennsylvania professor Decherney reveals that although the film and television industries have always relied on copyright law, their attitude toward it and toward outside regulation in general has been decidedly ambivalent. When faced with the specter of state intervention in their business practices, the media industry has hurried to construct its own internal models for arbitrating and resolving conflicts.
Rejecting copyright absolutism in the tradition of legal scholar and copyright activist Lawrence Lessig, Decherney asserts that piracy defies simple judgment. “It is not something that you can be for or against” (58). “Piracy, history tells us, is often just a name for media practices we have yet to figure out how to regulate” (5). Piracy, in other words, is a form of negotiation that arises when business models, industry practices, and technological capabilities are out of sync; “piracy battles denote the most innovative periods in media history” (6). Practically all media companies, writes Decherney, have passed through periods in which they were labeled pirates. Early filmmakers remade the works of others, often literally remaking them shot by shot. The Edison Trust adapted copyrighted works for the screen sans permission. “Duping” competitors’ works—especially works made by makers across the Atlantic—was common practice. Some of these practices enjoyed covert approval; producers who also manufactured projectors had little issue with the production of films whose existence helped sell projectors. But many resulted in complex litigation, as did the question of the copyrightability of movies themselves. Decherney’s lengthy chronicle of two key cases (Edison v. Lubin and Kalem v. Harper Brothers) reveals that Congress balked at regulating the early industry, preferring to encourage it to regulate itself.
In fact, the successes and failures of self-regulation permeate this book. When successful filmmakers and writers like Chaplin, Lloyd, James M. Cain, and Billy Wilder and major Hollywood studios became embroiled in disputes over the copyrightability of stock characters and venerable narrative devices, federal judges found themselves ruling on questions of storytelling and film genre. Studios faced with this outside intervention and a rash of plagiarism lawsuits adapted to this increasingly legalistic climate by establishing careful procedures for viewing and vetting story and script submissions and, most important, by weaving a web of contracts. Contracts provided the controlled environment that the system of copyright enforcement and litigation could not; contracts could protect ideas, which in themselves were uncopyrightable. This strategy of rendering certain business relationships contractual rather than depending on copyright law has led directly to the environment that we experience as media consumers today, where terms of service are automatically invoked when we interact with a website or service, game, or software application. Although we technically have the choice to reject the terms of service, we can only do so by an all-or-nothing choice to forgo use of the product or service.
Decherney’s discussion of the studios’ push–pull attitude toward the moral rights of creators (much more deeply recognized in Europe than in the United States) takes the book into fascinating territory. Beginning with Douglas Fairbanks’s drive to prevent the re-editing...