Under the Copyright Act “copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.” This simple formulation is never more problematic than when applied to the highly collaborative, highly derivative, and oftentimes hugely expensive and risky art and craft of film. Who is the author? What counts as originality entitled to protection? What is being expressed? When does a filmmaker use ideas available to all and when does she infringe the protected expression of another? In his closely argued and engagingly written new book, Hollywood’s Copyright Wars: From Edison to the Internet (Columbia University Press), Peter Decherney—a professor of cinema studies, communications, and English at the University of Pennsylvania—shows that solutions to these and other copyright conundrums have been excruciatingly slow in coming and often unsatisfactory when they have finally arrived, leaving the filmmaking industry (and filmmaking community writ large) to develop its own parallel regime of governance by contract, custom, and compromise.
Decherney’s five concise chapters are organized both chronologically and topically. He begins in the first decade-and-a-half of the twentieth century, as the conceptual basis for protecting film as “writing” evolved from viewing it as compilations of photographs to recognition of it as a form of drama, leading to the passage of industry control from the owners of patents on the technology to the owners of copyrights on the content. In a chapter he somewhat cheekily titles “Hollywood’s Golden Age of Plagiarism,” Decherney traces the courts’ uneven and unpredictable attempts to develop “tools for separating unprotectable genre conventions and themes from the original material in each film” up through the mid-1960s, by which time the film industry had developed its own systems “to control the flow of ideas.” Subsequent chapters take up the “moral rights” of film auteurs to prevent the mutilation of their work by such abominations as colorization, de-bowlderization, and alteration for TV, issues of fair use and home copying, and the challenges posed by digital media and the internet. Although not explicit, two distinct threads weave their way through Decherney’s entire story, as some of the controversies he covers have had their most direct impact on the business and economics of film, while others most directly affected the art and content. Decherney handles both threads more than capably, though to my ears as a lawyer and not a film historian he is most interesting, heartfelt, and original when addressing the latter. His mastery of the legal minutiae of his subject—theoretical, doctrinal, and procedural—is impressive throughout.
Had I a vote on the matter, I would have preferred for Decherney to devote less attention to the Digital Millennium Copyright Act. Much of the very recent history he recites seems overly familiar and perhaps not yet ripe for the deeper perspective Decherney brings to his other topics. (Or maybe I am just feeling cranky about having print, audio, and eBook copies of Walter Isaacson’s Steve Jobs lying around the house.) More interesting to me would have been Decherney’s take on the copyright term extension and restoration issues with which he is obviously very familiar, having participated as an amicus curiae in Golan v. Holder (his brief, authored with American University law school professors Peter Jaszi and Michael Carroll, is here) and penned an op-ed on the case for the New York Times. Sub silentio, though, Hollywood’s Copyright Wars bears eloquent testimony to the tragedy of the shrinking public domain. The early chapters are richly illustrated with material that dates from before 1923, but later chapters are relatively barren visually. Does forcing teachers of cinema to work with one hand tied behind their back really promote progress in the art?