A few weeks ago, there was an article by Nicolas Rapold in the New York Times about classic films that have fallen into the public domain. The article was essentially a run down of film titles and their current copyright status, a grouping of older films by directors such as Stanley Kubrick, Alfred Hitchcock, D.W. Griffith and Howard Hawks. As the article explained, under current copyright law, the current “patchwork” of copyright law means that films from different eras are treated differently with regards to the length and current status of their copyright. Films from 1923 and before are in the public domain. But when the Sonny Bono Copyright Extension Act passed in 1998, the 75 years of protection a film would typically receive was raised to 95, and 20 years were added to the copyright life of films published before 1978 in order to span the gap.

But beyond being an interesting look at which films are and aren’t in the public domain, the Times article made an interesting claim, through supporting quotations of several people connected to the film industry. Essentially, the article implicitly argued, the entrance of film into the public domain may signal a social loss for the viewing public. Rapold’s opening paragraph makes the case for why this is so:

“They show up in discount DVD bins, or more often today online, sometimes looking a little worse for the wear. A general pall of darkness might cloud the image; the dialogue might be a bit tinnier than you remembered. Often the quality is not too shabby, though in the case of the web, it can be a surprise that they’re online at all. They’re films that have fallen out of copyright for one reason or another and must weather the wilds of the public domain.”

Calling the situation a “predicament,” Rapold cites several reasons that public domain is a bad place for a film to be, including one expert who speaks of the process through which unprotected films lose quality by going through a series of duplications without reference to the original. Like a Xerox of a Xerox, the film can become blurry and distorted over time.

However, this stance on public domain works is hardly uncontested. Support for the social benefit of the public domain for previously copyrighted abounds, and is easy to conceptualize as well. (For just one example, take Lauren N. Gasaway’s essay in the Law Library Journal, A Defense of the Public Domain, which argues that public domain should be the default for creative works, rather than the result of a loss of copyright.) Surely, after some period of time, goes the baseline argument, after the whatever accruing financial compensation has been extracted by the author, there is some social benefit in making a work available to all of the public at no cost. The argument can proceed from a utility perspective — the low-cost proliferation of artistic work makes the world a better place — or from a more IP-oriented, constitutional standpoint — after the “limited time” for which rights are exclusively granted to authors, public domain does well to further encourage the “progress of science and useful arts.”

The problem, then, in the film industry, is that when copyright protection lapses, specialized production firms lose their economic incentive to produce quality copies of the work. With such a low barrier to entry in the field of public domain works, it may be hard to find a reason to carefully restore a damaged reel, or track down an original soundtrack.

One governmental agency bridging this divide is the Library of Congress. Rapold’s article refers to collaboration between that agency, and Kino Lorber, the independent film distributer. For a non-profit driven enterprise like the Library of Congress, the inherent value in classic films is not the monetary earnings that can be extracted, but rather the direction, acting, production, scoring and writing that goes into them. Essentially, the preservation of these films is being subsidized in order to preserve important artistic works.

If this sounds idealistic for government, it is — though one can imagine being troubled by a scenario in which media from past centuries that receives the best treatment beyond its copyrightable life is picked by a s by a state-run entity with set of arbitrary criteria. However, hopefully, between the Library of Congress and the cottage industry surrounding the re-release of public domain films, the proposition of an old movie falling into the public domain will be less of a predicament and more of an enjoyment in the years to come.

Lin Weeks is a J.D. candidate, ’15, at the NYU School of Law.

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