History Loop: Film & Copyright

Last weekend marked an anniversary in copyright and film history.  On August 24, 1912, the 1909 Copyright Act was amended under the leadership of New Jersey congressman Edward Townsend to protect motion pictures as a medium distinct from photographic works.  In the century that has since passed, filmed entertainment became, and continues to be, one of the most important products made in the United States, both culturally and economically.  That extending copyrights to protect the medium itself was a legislative move of unprecedented value to society is, I believe, beyond question.  Yet, for those who know their film history, 1912 does unavoidably draw the mind to American cinema’s uniquely turbulent beginnings.  While it may be tempting, as certain critics read what follows, to vilify copyright law because of the players involved at the time, that would be missing the more subtle idea that we may be witnessing a historical remake of sorts with a very different cast of characters.

From the earliest days of working motion picture technology, the craft, the business, even the film stock itself was volatile.  “The flickers,” as they were called, literally used to explode, but people made and watched them anyway, using projection booths lined with sandbags to mitigate potential mayhem.  What better metaphor could one possibly find to express the passion Americans feel about their movies?  Just as they were called “vulgar” at the turn of the last century while audiences viewed them in secret, today we still love the movies even when we’re complaining about them. And the number of Americans who work in some way related to the technology of moving images is far too varied and nationally dispersed to be described by the single word Hollywood.

But before there was a Hollywood, the center of American motion picture production was indeed New Jersey, and the major producers grew as extensions of the manufacturers and patent holders on the technologies that made film possible.  There is no getting past the fact that these business owners were ruthless men or that the Townsend Amendment, proposed as it was by a New Jersey representative, was almost certainly one component of a tactical design to maintain exclusive ownership of all production and distribution.  While it is not unreasonable to say that contemporary, independent filmmakers are courageous, it’s worth noting that around 1912, being “indie” could get you killed.  In fact, the studios we think of today as “Hollywood” were all founded by independent filmmakers, some who risked life and limb to defy an illegal cabal known as The Patents Company, comprising producers like Edison, Vitagraph, Biograph, Kalem, and Selig.  Also known as The Edison Trust, these producers attempted to use injunctive power to control production based on certain patent claims.  One particularly flimsy claim was ownership of a process called The Latham Loop, which rationally parallel’s the contemporary move by Amazon to patent the process of photographing items on a white background.

Anyone who has ever loaded a film camera or projector knows that one must make loops above and below the film gate in order for the celluloid to pass smoothly, advancing one frame at a time.  The Patents Company laid claim to ownership of this process — a claim that was rejected — and since they could not rule by law, they employed other methods, including intimidation and violence to stop independent projects by such filmmakers as Carl Laemmle, founder of Universal Pictures.  A common practice, according to the pioneer director Allan Dwan, was the use of snipers to fire at the cameras to disable production, but there were also assaults and shootings of production workers.

The storybook version of film’s migration to California is all about sunshine and the accessibility of varied locations, but a more acute motivation for the westward trek was the independents’ need to get away from the Patents Company and their heavies. Allan Dwan is among the best witnesses to this transitional time, beginning his career on the East Coast, then establishing one of the earliest California studios, Flying “A” Studio in La Mesa, CA.  He explains in Peter Bogdanovich’s wonderful collection of interviews Who the Devil Made It? that it was smart practice to film scenes in remote locations because proximity to a railroad put your crew within reach of Patents Company goons sent across country to break up the shoot.  Additionally, because of this persistent threat, many of the gun-wielding cowboys and gangsters in those two-reelers were in fact gun-wielding cowboys and gangsters, who served as both production security and as background characters.  Dwan tells the story of one encounter with a Patents Company thug, who arrived one day in La Mesa:

 “We took a walk up the road to talk it over.  I hadn’t been out of college for too long and was in good physical shape. So I wanted to get him far enough out of town to see if I couldn’t beat his brains out. We stopped at a bridge over an arroyo where people had thrown some tin cans.  There was a bright one sitting out there, so to impress me he whipped a gun out of his shoulder holster and shot at the can and missed it by about five yards. I pulled out my gun and hit the can twice, and that afternoon he left town. He was accompanied to the depot by my well-armed cowboys.”

Of course, Dwan and his contemporaries went on to become part of the studio system, which produced just about every classic motion picture that ever made a fan or  budding filmmaker fall in love with the movies.  Yes, business was still business, and as in all business, there were villains and heroes and plenty of prosperity and heartbreak to go around; but the important shift with the triumph of Hollywood over the Edison Trust was a move away from technology-based claims on the right to produce toward competition among the studios predicated on the talent they could get under contract. And from the late 1930s to the late 1960s, this system produced an extraordinary volume of films, including at least a few titles that will be on any enthusiast’s desert-island list.  This contract-based system laid the foundation for the next inevitable phase in the industry — name recognition and the transfer of power to individual artists.  Yes, this began with movie stars, and to be sure, not every actor is a great director or producer, but the breakup of the studio system coincides with the ability of individual artists in several disciplines to control their work based on their capacity to draw a crowd.  As a result, most feature films today are produced by hundreds, if not thousands, of independent production companies.

A century and some change since the Townsend Amendment, we’re reviewing copyright and arguing about its relative value in a time antithetical to all that the Latham Loop represents.  Where once manufacturers who held patents on technology tried to hyperextend their control over creative works, today’s manufacturers and technologists are driven to put more and more means of production in the hands of every prospective filmmaker in the world.  As such, arguments made in the blogosphere and in congressional chambers say that low-cost digital capture technology combined with Internet-enabled distribution models means that copyright loses relevance in this “new market.”  But what I find interesting at this moment in history is that it seems to me those who assert such claims are making the same mistake as the Patents Trust Company — looking at films as though they are produced by the tools rather than the people who wield the tools.  Affordable, digital cameras and free distribution on YouTube have nothing to do with the value of a film being protected under copyright. What’s being protected by copyright is what a film makes us feel; and so this recent anniversary, though it pays some reluctant homage to men of dubious intent, is indeed a celebration of the American filmmaker.

© 2014 – 2017, David Newhoff. All rights reserved.

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14 comments

  • Great comparison.

    P.S. what ever happened to the “tech talk” podcast thingy? Is that kaput or on hiatus?

    • Thanks, James. The “Some Tech Thing” sorta fell under the deluge of things that needed doing. Would love to bring it back, but committing the time to prep, etc. was becoming a challenge.

  • And the number of Americans who work in some way related to the technology of moving images is far too varied and nationally dispersed to be described by the single word Hollywood.

    It’s used as a metaphor for the film industry. Kind of like how Silicon Valley is a metaphor for the technology industry and Washington is the metaphor for the federal government. You know, a personification but instead of a person, it’s a location.

    This is a great post though. I don’t disagree that people should be paid for work, whatever it is, that in some way however little betters the world. But copyright is a system that fundamentally is an attempt to regulate copying. This is not a workable system in a world where everyone has the best copy machine ever made – the information age – also known as today.

    • And technology can just as equally fix it. All it requires is political will.

      Hansard 27/11/1978

      In answer to a question from Christopher Price MP, Home Secretary Merlyn Rees said that under the control of the Metropolitan Police there are nine closed-circuit television cameras on fixed sites used mainly for crowd and traffic control.

      Mr Rees added: “The Home Office has asked chief officers to satisfy themselves that the use of surveillance equipment is justified in all circumstances and is authorised at an appropriately senior level in teh force. Chief officers are well aware of the sensitivity of material obtained in this way’.

      • Definitely true. If you put the CCTVs in people’s homes you might help curb piracy and possibly other private crimes too. All it takes is political will..

        I know, you are going to say that’s hyperbole. You don’t need that right? Right? Well if so, what do you need?

      • That is already being done. P2P usage is 95% downloading copyright content. Your ISP knows that you are using P2P. Your app suppliers know it, your mobile device OS maker know it. They all sell that information on. How long before someone is selling a database to employers of “People that are likely to steal if they think there is a chance of getting away with it”. Of course they are more likely to just say database of P2P users, but everyone knows what that really means.

      • John,

        That sounds fishy. Do you have proof that they are sharing that information?

        To add also, thanks to NAT an IP address in no way traces back to a person or even any specific computing device. In addition, people can and are infected with malware that turns their machines into seedboxes for P2P networks. For all we know, your computer right now can be sharing the latest Blu-ray rip of Frozen.

      • Why wouldn’t they? They setup cancer support sites and sell on the data to insurance companies. We’ve been around the internet long enough to know that anything you do will be collated, and either made public or sold. Who cares if your boxen has been pwned? As a private employer I’m under no obligations to determine with criminal certainty that someone’s P2P usage is their own. As an insurance company I may take such behaviour into account when assessing the risk of giving a P2P denizen contents insurance (likely to make false claims).

      • A couple of weeks ago I posted a video link here:

        http://illusionofmore.com/digital-rights-activists-tpp/#comment-4674

        you should at least watch the first 10 minutes. Your online activity cannot be hidden, and it is collated and sold, by private companies. Every day they find new ways to exploit that data.

    • Glad you like the post, M, and I know that’s your fundamental argument about technology and copyright. But would you apply this same reasoning to drone warfare and then to autonomous weapons? There’s no question that technological capability alters moral arguments, but the extent to which that is rational and healthy is a valid conversation to keep alive, no? Was the cotton gin a smart idea or the catalyst for slavery and the Civil War? We have the atom bomb, genetic engineering, a semi-voluntary 24/7 surveillance state through social media, and so on… Lots of technology implies moral questions, and I don’t think the answer should always boil down to “It’s right because it’s possible.”

      • I’m not kidding when I say I am legitimately looking for a way to make copyright work. I just can’t see how copyright, which was designed around the idea that copying is an industrial activity, can be suddenly made to work when copying is now a personal activity. If you have solutions, by all means share them.

      • M.says “I’m not kidding when I say I am legitimately looking for a way to make copyright work”

        This from the same person who dedicated an entire blog post to “artists are evil” and “copyright should die”..
        color me sceptical.

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