Speaking Up for Silent Films

As the Supreme Court hears arguments this morning about whether to strike down a law that extended copyrights by 20 years, Michael Agee will be one of the few people in the entertainment world rooting for the justices to kill the protection.

“A film is an expression of ideas, and copyright in effect builds a fence around those ideas,” said Agee, who runs Hal Roach Studios, a fabled silent-movie operation, as a one-man enterprise on behalf of an investment group. “Do we want a society where every thought, every expression, every story is owned by someone?”

To most of Agee’s colleagues in the film business, the answer is a resounding “yes.”

If the court finds the Sonny Bono Copyright Term Extension Act unconstitutional, it will cut the term from 95 years to 75, which is what it was before the Bono Act became law in 1998. Material from the mid-1920s immediately will start entering the public domain--everything from music by Irving Berlin to stories by Ernest Hemingway to novels by Virginia Woolf.

The cache also includes 60 Laurel and Hardy shorts to which Roach Studios owns the rights. If the Bono Act disappears, any fan or film company could issue its own versions of the comedy classics. Over the last decade, Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo’s silent films. Roach also would lose any potential income from documentary makers who want to use Laurel and Hardy snippets.

But Agee, who lives in Yorba Linda, doesn’t care about that.

The 54-year-old film buff, a cousin of critic and “African Queen” screenwriter James Agee, is more than a casual supporter of Stanford professor Larry Lessig’s attempts to overturn the Bono Act. With the help of a Duke University law professor, Agee filed a 30-page supporting brief with the Supreme Court. It argues that Hollywood’s attempt to uphold the law is encouraging a form of cultural murder--”the irrevocable physical decomposition of a large fraction of the golden years of American cinema.”

It’s a lonely position. Just about every artists’ group in the country, it seems, has filed briefs arguing that the law should be left untouched: the Motion Picture Assn. of America, the Songwriters Guild of America, the Recording Artists Coalition, the Recording Industry Assn. of America, the Nashville Songwriters Assn. International, the Directors Guild of America, ASCAP and BMI.

What’s at stake is not only money--the reissue of classics funds the production of new films, the MPAA notes--but the question of whether American culture should have a gatekeeper deciding which long-ago artistic works are allowed to be available.

A footnote in the MPAA brief, for instance, asserts that what happened with Frank Capra’s “It’s a Wonderful Life” shows “copyright protection promotes preservation and distribution.” When the film was believed to be out of copyright in the 1970s, the motion picture association says, the copies shown were “horrid.” It was only when Paramount gained control of the film by exploiting the copyright in the underlying short story that the picture quality was restored and the film returned to its full length, the industry group argues.

But this take on history, supporters of the public domain point out, skips over how the once-obscure movie became a beloved touchstone in the first place: television stations showed it repeatedly during the years when it was believed to be out of copyright.

“Other lost classics would find new life in the public domain because they can be made available by anyone,” Agee said. “There are works out there that people haven’t thought about for decades. But if there’s a dime to be made, people will put them out. Dimes don’t mean anything to billion-dollar corporations, but they will to smaller players.”

Many Films Are Lost

Only 20% of the films made in the 1920s still exist, according to the Library of Congress. Sometimes, destruction came at the hands of the studios, who wanted to salvage the valuable silver from the nitrate reels. In other cases, the films wasted away from simple neglect.

An unknown but higher proportion of the era’s blockbusters, the full-length feature films, survive. Some are readily available, and some are available only with difficulty in secondhand versions. Many languish unseen in studio vaults, in the holdings of amateur and professional archivists and at the Library of Congress.

Even Harold Lloyd’s “Safety Last,” which has the iconic scene of the hero dangling from a clock--probably the most famous image from the silent era--is generally unavailable.

So are Michael Curtiz’s “Noah’s Ark” and Clarence Brown’s Klondike tale “The Trail of ‘98,” both epics that were the “Titanic” of their day. Capra’s “Power of the Press,” starring Douglas Fairbanks Jr. as a cub newspaper reporter, also is highly regarded but extremely difficult, if not impossible, to see.

The motion picture association’s brief takes direct aim at Agee’s assertions, saying it instead will “offer the Court a real-world perspective.”

First of all, the brief says, the industry is doing all it can to preserve what still can be preserved.

“Studios have started to devote millions of dollars each year to preservation and restoration,” the MPAA says.

One acknowledged role of copyright is to act as incentive: The creator of a successful work enjoys certain benefits, usually financial, that inspire someone else to create. But if the studios don’t own the original works, the MPAA brief argues, they probably won’t be able to produce derivative works such as anniversary editions.

An example cited in the brief is Warner Bros.’ 50th anniversary edition of Orson Welles’ “Citizen Kane,” which is not only restored but includes newsreel footage of the premiere and running commentary by director Peter Bogdanovich and critic Roger Ebert. Nor would Warner Bros. spend $350,000 to restore “Casablanca” if it didn’t own it, the motion picture association says. (To reacquaint the justices with these classics, the MPAA sent DVDs to the court.)

“Petitioners,” the brief notes, “may take issue with this logic.”

Boy, does he. The camera negative of “Citizen Kane” was rendered for its silver content in the mid-1970s, Agee said. It’s only because a Library of Congress vault custodian made a copy that Warner Bros. had first-generation material to restore.

“The brief conveniently fails to note that all of these classic studio films which have supposedly been preserved have mainly been preserved at the taxpayer’s expense by the Library and the American Film Institute,” Agee said.

At Universal Studios, silent films were burned whenever fuel was needed for a fire scene. Yet they still control the rights.

A Call for Public Access

Kevin Brownlow, an Englishman who is the leading historian of the silent era, believes that all silent films should have long ago entered the public domain.

“These films are your history,” he said. “Quite apart from their value as entertainment, they present an image of America that isn’t just a period confection. It’s the real thing. This is the way people lived, the way they looked, and it’s absolutely priceless. To think it’s being allowed to rot is a cultural crime.”

Still, Brownlow doesn’t think overturning the Bono Act will usher in a golden age of rediscovery.

For one thing, there’s the problem of music.

Many hobbyists who would want to reissue a treasured silent film couldn’t afford the full orchestral treatment it would demand. But at least the law’s removal would greatly ease the way for documentary makers.

“We have to pay the studios absurd amounts, up to $10,000 a minute, to excerpt films they’ve forgotten they own,” Brownlow said.

The historian immediately thought of one silent film he’d like to reissue if the Bono Act were struck down, but he was silent on what it is.

“I’d better not mention the title. I have the only print of it,” Brownlow said. “The studio holds the rights, and they don’t want to do it themselves. So many minor works are hidden because of copyright.”

Agee, too, has a few films he’d like to bring back, including “The Winning of Barbara Worth,” the last of the silent epic westerns that marked Gary Cooper’s debut.

“There are so many silent movies that are in people’s basements,” Agee said. “They can’t show them and don’t know who owns them.”

As for his Laurel and Hardy films, Agee acknowledged that Roach could face competition, but he’s confident that his studio’s clean, crisp versions would win out.

Besides, he said, “Anything I lose, I could make up by putting out other films.... Even if I lost everything, I’d still be opposed to this law.”