Let’s get one thing out of the way now: I believe that copyright serves a legitimate purpose in our society. If an artist or creator puts their labor into a work, they deserve some degree of control over that product, including over distribution, sales, and so on. This article (and all original works on this site) use a Creative Commons license that reserves certain rights of copy, while forfeiting others in manner that seems sane to me. But I truly do understand why a musician, filmmaker, or other professional content creator/owner might impose stronger restrictions. They make a living on their content and it seems unfair to say the least that someone else would take away their income by reselling that content without permission or reimbursement. While in my view, the legitimate justification for copyright falls short of applying to personal copies, remixes, mashups, collage, parody/satire/détournement, and other (re-)interpretation (e.g. the above image is not theft, though it might be a crime in the artistic sense); that’s not the focus of this post. Nor is imagining an alternative culture or economy in which copyright doesn’t exist. Instead I want to focus in on how overly strict copyright enforcement can actually hinder economic activity, and reduce the long-term impact of artistic creations, leading culturally significant works to die in obscurity. I think Fritz Lang’s classic 1927 silent film, Metropolis, serves as a nice example for a number of reasons.
When Sonny Bono and company enacted the Copyright Term Extension Act of 1998, the entry of new works into the public domain basically froze. Bono and his powerful backers (Disney, Jack Velenti, and other assorted industry shills) pushed this freeze mainly to protect their own interests (but also to come into line with the EU’s even worse copyright adjustments). Representative Bono, formerly half of the craptastic pop duo, Sonny & Cher, would be able to license his one hit song for the term of his own life (which actually ended shortly before the bill passed) plus 70 years instead of the previous 50, ensuring that his descendants will receive unearned income from Viagra (and perhaps flying car) commercials until at least 2068. That’s a 100 year copyright protection; for a younger (and even crappier) artist like Justin Bieber, think more like 150 years and you hopefully realize how absurd this is. And yet Bono, Disney and Valenti felt even this was not enough, and would have lobbied for infinite copyright protection if they thought they could pass it. Valenti, a real turd if you’ve ever looked at his life’s work of killing artistic freedom, famously proposed a copyright term of “forever less one day.” Imagine a world in which nothing is in the public domain. That’s what they wanted. The perpetual monetization of what is essentially public culture. A disaster for humanities scholarship and production, but also for preserving and forwarding our shared culture in the US and around the world. For most, this doesn’t require much more explanation, but Lawrence Lessig’s recent TEDTalk on “remix culture” is a nice place to continue thinking about it.
So What Does This Have to do with Metropolis?
So, Metropolis. I’ve seen Metropolis (usually in bits and pieces) several times. It’s available on VHS and DVD, streams on YouTube and elsewhere on the web, is screened in galleries and museums; I even saw it used as the visual backdrop to a hip hop show (DJ Spooky circa 2000, who played his set in front of both Metropolis and Society of the Spectacle, among others, as I recall). While I’m not by any means an expert on the film’s history or impact, I can say with some certainty that it is among the most important films ever made, possibly the best loved silent film and one of the first sci-fi stories ever put to celluloid; a simply stunning piece of visual art. Unsurprisingly, it has been referenced, re-mixed and re-interpreted widely over the past 83 years.
Metropolis, while flourishing mainly in marginal “film geek” and “art school” segments of society, is about as ubiquitous as a silent film can be. This ubiquity owes not only to the films quality and lasting appeal, but also to its unbelievable availability. In addition to relatively frequent free and public use, I’ve seen it for sale for about the cost of a postage stamp in at least a dozen different versions (different music, mainly, including one version featuring a terrible Freddie Mercury song) and stores. Like other public domain titles (Metropolis entered the public domain in 1953), it is manufactured and distributed around the world by small companies that put little effort into quality control or maintaining the original artistic vision. With the 2010 release of The Complete Metropolis, which is digitally remastered and includes some lost footage, as well as an updated performance of the original musical score, the film is now getting a definitive treatment by film preservationists.
If we consider Fritz Lang as the author, under the current copyright regime, this film would not have entered the public domain until 2046; if we consider it a corporate authorship (and I’m not sure whether an individual or a studio actually owns a film’s rights, especially one from 1927), that date could be as late as 2071. Luckily, the copyright expired in ’53 under an older but equally confusing regime and was not renewed (a subsequent court challenge to reclaim the film’s copyright failed, despite the fact that the 1998 Copyright Term Extension Act restored copyright to many works that might have entered the public domain). So the question is this, in which scenario would this silent film be poised to flourish in a widely anticipated re-release 83 years later: the one in which the film built up a huge following through ubiquitous and varied availability and remix, which also allowed the film to be pieced back together from archival quality prints held around the world? Or the one in which the receivers of a defunct German film company tightly controlled the film, restricting use and distribution, and most likely burying it altogether? My assumption (in my view, quite uncontroversial) is that whomever would have controlled the copyright of the film would not have kept it in print at all, let alone promoted it widely (though admittedly, perhaps the film would have lived on in Germany either way).
What do we have if nobody can get their hands on Metropolis until 2071? Basically, we have an historical artifact. That’s all well and good. I happen to like things called “artifacts,” but I also happen to think of those things as distant and dead (at least when I’m not wearing my history hat). As it turned out, in Metropolis we can see a living culture, a film carrying its influence across the first century of international cinema, a film whose importance and adoration is not so much being asserted with the re-release, but being reinforced and celebrated. There is a continuity that benefits our understanding of film history, of popular culture; it enriches our appreciation of the film and ensures its continued existence far more fairly and organically than any legal right. Paradoxically, if Metropolis were not in the public domain, The Complete Metropolis would not stand a chance of existing, let alone generating a profit. The widespread and generation-spanning love and appreciation of the film came largely out of it’s free-ness, which is why we’re willing to pay for it.
I’ve recently entered the tangled web of copyright hell by way of a local history-based documentary film project, in which students and others use archival and oral history assets to construct short films for the web. I’m not talking about serious filmmaking here, but largely amateur/educational creation. We don’t need Donald Duck in our documentaries but we do need access to more footage and images than you can imagine to construct reasonably interesting short films, and most of that material, it turns out, is copyrighted. Sometimes it is held by large corporations (which equals two possible outcomes: “No” or “Pay us your whole budget for this thing we forgot we owned”); other times, it is under the control of the original creator (some who feel their work is too important to ever allow anyone to see or use it); most frustrating, some of it is held in archival collections where conservatively-interpreted pre-digital accession contracts basically ensure that the footage will never again see the light of day (“in-house screening only” both ignores the way research is conducted in the digital age, and also the way content is consumed by the public; neither group is likely to dig through a low-profile archival collection in order to wait hours while library staff finds the film projector that will inevitably be crammed into a 1 person “private viewing station.” And of course, when they leave they will only have some notes and their memories to show for it). These approaches might work to the benefit of the copyright holders and maybe even creators if they were MGM and I were Errol Morris, but they are not and I am not. For most works, particularly those archival items held at small institutions, copyright essentially becomes moot because no one gives a damn, no one knows it exists. But still, we hide it away, we consult our lawyers and our contracts, all parties turn out their empty pockets and walk away, less than satisfied that “at least it’s being preserved.” The question remains, “For who? For what?”