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Stay Free! talks to film historian Rick Prelinger

If you've ever watched old safety films like Doorway to Death, experienced The Fun of Being Thoughtful, or uncovered anti-Communist plots like those in Red Nightmare, then chances are you've encountered Rick Prelinger's work. Prelinger has amassed one of the largest collections of "ephemeral" films in the world. As an archivist and champion of the public domain, he has put a thousand films online, making them free for historians, artists, and everyone else. And as a close personal friend of yours truly, he agreed to talk to us about copyright and the plight of the commons. --Carrie McLaren

Stay Free!: I talked to Siva Vaidhyanathan about how corporations are effectively removing photos and films from the public domain by digitizing them, claiming copyrights for the digitized versions, and then making the originals unavailable. Even though corporations talk about how digital technology is ruining the entertainment industry, it has also given them tremendous opportunity. Are there earlier examples of companies privatizing things in the public domain?

Rick Prelinger: Definitely. Several entrepreneurs, including a controversial man named Raymond Rohauer, reedited Birth of a Nation, Buster Keatonıs films, and other silent movies. Rohauer gave the films a slightly different continuity and redesigned the title cards, then copyrighted these "new" works. That allowed him to jump on anyone who attempted to release or reuse them.

One of the most well-funded efforts was computer-colorized movies, around the mid-1980s. The copyright on many popular movies from the 1920s thru the 1940s was about to expire and the owners wanted to maintain control of these films. So they partnered with a couple of software companies and colorized them. By doing that, they could argue that they were transforming the works‹making something new. So then they could copyright the new works. But filmmakers and the public responded with outrage.

Stay Free!: What were some of the films?

Prelinger: You name it. Citizen Kane, It's a Wonderful Life, Sands of Iwo Jima...

Stay Free!: Wasnıt It's a Wonderful Life already in the public domain?

Prelinger: It had been recaptured. The copyright on the movie expired but there was music in it that hadnıt. So someone bought up the music rights and thereby gained control over the film. Sometimes when copyright on a film expires, all sorts of stakeholders come forward. Itıs hard to tell whatıs in the public domain and what isnıt, there are so many competing rights. The movie Reefer Madness is in public domain but itıs actually based on an article that was published in a Hearst magazine, and the article is under copyright. There are many, many situations like that. Just because copyright expires doesnıt necessarily mean you can use something. There are other issues involved as well. There might be royalties youıd need to pay for things made under union contract, for use of actorsı performances or the directorıs work. Thatıs why it doesnıt make sense to focus on copyright alone. Copyright is only part of the picture. We really need to fight for access to works.

Stay Free!: What about Night of the Living Dead? That was colorized.

Prelinger: Yes, it was first published in 1958, and George Romero, the producer-director, accidentally left off a copyright notice, which threw it into the public domain. He didnıt get royalties from the movie for a very long time, but it reached a huge audience as a result of its public domain status, and was even colorized. Then he was able to make sequels and made lots of money from those.

Stay Free!: It doesnıt seem fair that corporations earn copyright protection for transforming works technically, yet musicians canıt sample copyrighted works in a transformative way.

Prelinger: Well, anyone can claim a copyright for new authorship that they add to a preexisting work, but the real issue is, Who owns the raw material? Corporations control most music that rises to prominence in our culture, so they control who can legally sample it. This is just an example of how copyright (and property rights in general) reinforce preexisting power structures.

Stay Free!: What about laser discs? Where did they fit in?

Prelinger: The industry tried to popularize laser discs in the 1980s because they wanted a "read-only" medium‹something that people couldnıt record. But unlike colorization (which looked realistic only after about four beers), laser discs offered a lot of advantages. They gave viewers the opportunity to look at movies at different speeds or frame by frame. And they were beautiful. I love laser discs! They also gave producers the opportunity to add supplemental materials‹extra footage, historical documents, and interviews‹like DVDs do now. In fact, that is a good example of how companies could in fact profit from digitizing things in the public domain even without copyright protection. If theyıre packaging the film with other items, that context is unique. Even if other companies want to sell versions of the film, the value-added material could still make a particular disc stand out. The materials in the package might be in the public domain, but your combination of them could be copyrighted.

Companies like Disney successfully lobbied to extend copyright in order to protect a few valuable properties. When they did that, they also extended copyright on tens of thousands of other peopleıs works that‹because they are still copyrighted‹will never see the light of day. So while Disney is increasing the value of its own property, it is at the same time devaluing many, many more works. Iım curious if there has ever been an effort to say, "OK, letıs let Disney have their extended copyright. Let them have their special rule. But then letıs have the rest of the material go to the public."

There are special clauses about a few things: The Olympic Rings and Smokey Bear are off-limits. But those are for the public good rather than for a specific corporation. I think special treatment wouldnıt work anyway because other companies would demand it.

Stay Free!: But the vast majority of people donıt care about renewing their copyright.

Prelinger: Yes, thatıs true. But youıre favoring the big corporations. I think a better way of getting at this problem is to use Lawrence Lessigıs idea of establishing "copyduties" to go along with copyrights. This would require copyright owners to make their works available to the public in some way. If they donıt, then the works fall into the public domain. That way, all the works that are sitting in a warehouse somewhere are freed up, whether they belong to creators or corporations.

Stay Free!: One problem with the Sonny Bono Act is that it prevents the restoration of films and other media . . .

Prelinger: Yes, we are losing materials to deterioration, plus a lot of copyrights are abandoned, usually because theyıre out of date and the owner doesnıt need them anymore. But the works are still under copyright, so they canıt be used. A lot of really important stuff is very difficult to find or it isnıt physically available. And if you do have a copy, you canıt find the copyright holder. I have this situation a lot. We have a lot of industrial films that are now under copyright, but we donıt know how to get a hold of the owner. As a result, Iım not going to spend money to remaster things on digital tape, Iım not going to make film copies. Iıll keep them as cool and dry as the rest of my films, but I have no economic incentive to do that anymore. So a huge number of works are going to languish.

Stay Free!: With most of your films, itıs probably safe to say the copyright owner wouldnıt care if you used them. Theyıre ephemeral.

Prelinger: Right. They have more value when repurposed than they might in their original context. Old educational films canıt be used in the classroom anymore, but they may have great value as a document of how people used to behave, or how institutions wanted them to behave.

Stay Free!: What are some of the problems libraries are facing?

Prelinger: The main problem is weıre rapidly moving to a model where all content is a billable event, and that undercuts the public function of libraries. For example, down the road, it will be harder to rent a movie. Youıll have to download the movie and pay each time you view it. Thatıs a problem. Record labels are trying to impose similar models.

Stay Free!: That could happen with e-books too.

Prelinger: Yes, it could happen with any medium‹any individual reading becomes something that can be billed. If there was a giant cooperative of artists and creators who owned the system of distribution, that probably wouldnıt be such a bad thing, but right now the middlemen are getting the lionıs share.

Stay Free!: Are companies preventing libraries from lending things like CDs?

Prelinger: There have been lawsuits, yes. But the big picture is that weıre seeing all the revenue models for new media operating in licensing mode. Educational materials and various entertainment forms are likely to be based on video games, which are deeply embedded in a pay-per-use model. A lot of the new content is inherently library proof. Itıs scary. How can a library lend out Lexis-Nexis? How can it lend out a TV program? Copyright law gives owners the right to control access. But there is no law that states affirmatively that the public has the right to access cultural information.

Stay Free!: I donıt really understand how access to historical materials could become billable events considering that most academic researchers wouldnıt have the money to cover that. Theyıre underpaid as it is!

Prelinger: It doesnıt have to be that way. Content owners could benefit dramatically from giving things away. Take my archives as an example. My movies have always had a certain cult following but I could have never predicted weıd get over a million films downloaded in a little over a year. I gross in the low six-figures annually by selling stock footage to television producers and ad agencies. But I also put 1,100 films on the web for free. These films promote what we have in the archives and the images make their way back into the culture. The increased circulation of the images ups their value.

Stay Free!: Maybe one positive side to "billable events" is that maybe people will get used to paying for works and wonıt expect everything to be subsidized by advertising. Iıd rather pay $6 for a magazine I really like than $3 for one that sucks. And if more people adopted that view, weıd have better media.

Prelinger: Thatıs the HBO model. All the other TV networks are freaking out. HBO gets away with playing The Sopranos and Six Feet Under and the broadcast networks canıt. Itıs also one of the most profitable networks. Now HBO is even going to conceive and produce shows for ABC.

Stay Free!: As dismal as the whole copyright situation is, there are people out there experimenting with solutions. Can you talk a bit about intellectual property conservancies?

Prelinger: There's an effort underway to do to intellectual property what, historically, we've done with landscape. In the late 19th and early 20th centuries, private corporations exerted unprecedented pressures on the "public domain"‹American land and natural resources. They started to exhaust key tracts of land through mining, logging, and agriculture. In response, the conservationist movement lobbied to organize a system of national forests, parks, and monuments that could be preserved for all. In much the same way, an intellectual property preserve might house content and protect it as public property. These assets would be acquired by purchasing certain key resources and by soliciting donations of content-‹texts, photographs, or artwork, for example.

Stay Free!: Creative Commons is one example. How is this different from, say, the Library of Congress?

Prelinger: Creative Commons is a nonprofit that offers licenses so that people can customize their own copyrights. For example, if you want to let other people reprint articles from Stay Free! but only for noncommercial purposes, you can choose a license that states that. Or you can get a license that states, "You can use this but only if you give us credit." Creative Commons plans to create a database with all of the works licensed or donated to the public domain so that itıs easy for people to find and use this stuff. Itıs a great idea. We need more ideas like this instead of just trying to fix copyright law.