The bumpy history of Hollywood and copyright law

In 1982, Film Ventures International released a movie about a great white shark that terrorizes a small coastal town. A novelist and a salty old fisherman set out to sea to hunt down the predator. In the end, both the fisherman and shark die.

This isn’t the plot of Steven Spielberg’s 1975 blockbuster, “Jaws,” but an Italian production usually called “Great White” (and sometimes referred to as “The Last Shark”). In the 1980s, “Jaws” distributor Universal successfully sued to stop “Great White” producer Edward Montoro from releasing the movie. Universal claimed the similarities between the works were so great that Montoro’s version infringed on Universal’s copyright of the original work.

Turns out, says Peter Decherney, associate professor of cinema studies, English, and communication in the School of Arts and Sciences, Universal’s action represented a 180-degree turn from Hollywood’s general attitude decades earlier.
In the 1920s and 1930s, Hollywood studios fought to make movies based on conventions of traditional genres, from detective stories with hard-boiled gumshoes to Westerns with heroic cowboys. Back then it was the novelists and playwrights who sued Hollywood studios, claiming that studios were infringing on the writers’ copyrights to these traditional genres.

Decherney outlines the shift in Hollywood’s attitude in his latest book, “Hollywood’s Copyright Wars.” The book begins with some of Thomas Edison’s early film struggles and leads readers on a path to recent lawsuits lodged against YouTube.
Edison’s dispute occurred more than a century ago, but in many ways still has a strong connection to the copyright environment of today, Decherney says. “[Edison] was dealing with a new medium of film, and he was the pirate of his day,” he says.

Edison and others, including competitor Siegmund Lubin, made copies of film negatives, and printed new versions of film positives that they sold at lower prices. Not only was what they did blatant unauthorized distribution (similar to selling bootleg DVDs or CDs on the street), but Decherney says copyright protections were built into the film technology—Edison films would only play on Edison projectors, much like how some Apple media today only plays on specific devices.

In 1903, a court decided duplication was illegal. But the impact on the industry was virtually nil, Decherney says. “It was a decision that couldn’t be enforced in any way,” he explains. “I think through all these cases of piracy, [courts were] trying to figure out, is film a new medium or an extension of old media, and if so, how do you adapt those laws that are designed for other media to film?”

Then, in 1911, Edison was involved in another case that marked the end of his film career. At that time, Edison was freely adapting novels and plays without permission and without paying royalties. No one questioned the practice until the release of the 1907 film version of “Ben Hur,” which was based on a wildly successful novel and play. Supreme Court Justice Oliver Wendell Holmes, Jr. borrowed a doctrine from patent law to answer the question of who was responsible for copyright infringement. Hollywood studios, the court ruled, must attain the rights to a published work before turning it into a film.

Decherney notes that Hollywood has a long history of self-regulation on many of these issues, a practice that began under the threat of censorship in the late 1920s and 1930s. Because studios were constantly sued by novelists and playwrights in the 1940s and 1950s, the industry created guilds to settle disputes in-house.

The industry has also benefitted greatly from using works not under copyright protection. Hollywood studios supported a law that was upheld by the Supreme Court earlier this year, in which many foreign works were removed from the public domain and copyrighted—some for the first time. Decherney, who filed an amicus brief and wrote an Oct. 4, 2011 New York Times op-ed in support of the plaintiff, argued that removing works from the public domain destabilizes it.

“Hollywood has continually used public domain works for aesthetic or technical innovation or new business models,” he says.

Both the public domain and the film industry have changed dramatically over time, Decherney says, in part because amateurs are now part of the dialogue about copyright rules and regulations, and also because the public domain has shrunk since 1998, when copyright protections were extended on some works for 20 years.

Technology has also altered the way we think about copyright protections.

“I think we’re in this period, like Edison was in 1903, in which we’re trying to figure out what are the new possibilities of digital media and how to regulate them,” Decherney says. “Studios [are] understandably trying to protect their old models, both the old models of regulation and business models.  … If you look historically, a lot of things that seem normal to us now, like radio, like home video, really seemed like piracy at the beginning.”