Locking Up Movies

Master of the public domain?

Some critics claim that movies came close to perfection in 1928, the last year of the silent era, only to be dragged back down when directors had to figure out what to do with sound. Unfortunately, if you'd like to check this claim against reality, you won't be able to do it in any systematic way: The vast majority of films from the '20s and '30s aren't available on video.

So says Jason Schultz, an associate at the law firm Fish & Richardson, in a paper to be published by The Journal of Appellate Practice and Process. Using the Internet Movie Database as his source, Schultz counted 36,386 features and shorts released from 1927 to 1946. Of those, he discovered, only 2,480 are available on videotape and 871 on DVD. Even if you add what's showing in theaters and on pay-per-view TV, his figures indicate that over 90 percent of the films from that period are commercially unavailable.

Schultz began his investigations after the Supreme Court heard oral arguments in Eldred v. Ashcroft, a suit that aims to overturn the Sonny Bono Act of 1998. Defenders of the law, which retroactively extended copyright terms by 20 years, argue that if it were overturned as unconstitutional, part of the earlier Copyright Act of 1976—which also extended terms retroactively—might have to go as well, throwing everything published before 1946 into the public domain.

"That's the big push by Jack Valenti," explains Schultz, referring to the chief of the Motion Picture Association of America, which supports the extensions. "He says copyright law is the necessary engine to distribute works to the public. But the numbers we came up with show that, after a certain number of years, only a small minority of works get to the public. He might have a good year argument if he's defending a 40- or 50-year term." But corporate-owned copyrights are currently protected for 95 years; under the 1976 law, they were protected for 75.

"When copyright can't get the job done, there are institutions that can—if the work's in the public domain," says Schultz. "Digital archive projects are ready to bring these works to the public at almost no cost. It could be a great resource, but for the fact that Congress keeps extending the copyright terms."