Friday, December 25, 2009

"It's a Wonderful Life"

A December 23 post by yahoo movies entitled Surprising Facts About 'It's A Wonderful Life' included some interesting facts but made a salient intellectual property omission. The facile dissemination of the movie arose in large part because the copyright was not renewed and the movie was thought to have entered the public domain. The story is still more complicated, because of derivative work rights relating to the underlying story ["The Greatest Gift" ]. Wikipedia notes: While the film's copyright had not been renewed, the plaintiffs were able to argue its status as a derivative work of a work still under copyright. It's a Wonderful Life is no longer shown as often on television as it was before enforcement of that derivative copyright. NBC is currently licensed to show the film on U.S. network television, and traditionally shows it twice during the holidays, with one showing on Christmas Eve. Paramount (via parent company Viacom's 1998 acquisition of Republic's then-parent, Spelling Entertainment) once again has ancillary rights for the first time since 1955, while NBC's broadcast rights are licensed from Trifecta Entertainment & Media (which holds television distribution of the Republic/Paramount theatrical library)

Thus, while yahoo noted

"Wonderful Life" flopped at the box office in 1946, not even recouping its production costs. As TV sets invaded America over the following 30 years, networks searched for Holiday programming-and "It's a Wonderful Life" proved perfect.

yahoo did not mention the interesting copyright IP angle associated with "It's a Wonderful Life," wherein the movie was considered to be in the public domain for years. Further adventures arose over colorization.

The Wikipedia entry for "It's a Wonderful Life" references the Supreme Court case Stewart v. Abend. Yes, it is James Stewart, but the relevant movie in that case was "Rear Window" and the relevant legal issue was "what happened" to derivative work rights when the author of that work agreed to assign the rights in the renewal term to the derivative work's owner but died before the commencement of the renewal period and the statutory successor [here Abend] does not assign the right to use the pre-existing work to the owner of the derivative work.

Of the players:

In 1953, actor Jimmy Stewart and director Alfred Hitchcock formed a production company, Patron, Inc., which obtained the motion picture rights in "It Had to Be Murder" from De Sylva's successors in interest for $10,000.

In 1954, Patron, Inc., along with Paramount Pictures, produced and distributed "Rear Window," the motion picture version of Woolrich's story "It Had to Be Murder." Woolrich died in 1968 before he could obtain the rights in the renewal term for petitioners as promised and without a surviving spouse or child. He left his property to a trust administered by his executor, Chase Manhattan Bank, for the benefit of Columbia University. On December 29, 1969, Chase Manhattan Bank renewed the copyright in the "It Had to Be Murder" story pursuant to 17 U.S.C. 24 (1976 ed.). Chase Manhattan assigned the renewal rights to respondent Abend for $650 plus 10% of all proceeds from exploitation of the story.

Abend's complaint against Hitchcock, Stewart, MCA, and Universal Film Exchanges alleges that the re-release of the motion picture ["Rear Window"] infringes his copyright in the story because petitioners' right to use the story during the renewal term lapsed when Woolrich died before he could register for the renewal term and transfer his renewal rights to them.

The argument of the petitioners [Stewart et al.] failed at the Court of Appeals and at the Supreme Court: Petitioners would have us read into the Copyright Act a limitation on the statutorily created rights of the owner of an underlying work. They argue in essence that the rights of the owner of the copyright in the derivative use of the pre-existing work are extinguished once it is incorporated into the derivative work, assuming the author of the pre-existing work has agreed to assign his renewal rights.

The case Stewart v. Abend is interesting for the identity of the dissenters: Justice Stevens joined by Justices Rehnquist and Scalia. The text of the dissent includes:

The legislative history confirms that the copyright in derivative works not only gives the second creative product the monopoly privileges of excluding others from the unconsented use of the new work, but also allows the creator to publish his or her own work product. The authority to produce the derivative work, which includes creative contributions by both the original author and the second artist, is dependent upon the consent of the proprietor of the underlying copyright. But once that consent has been obtained, and a derivative work has been created and copyrighted in accord with that consent, "a right of property spr[ings] into existence," Edmonds v. Stern, 248 F. 897, 898 (CA2 1918), that Congress intended to protect. Publication of the derivative work does not "affect the force or validity" of the underlying copyright except to the extent that it gives effect to the consent of the original proprietor.

[IPBiz notes that anyone who would argue that Justice Scalia has not invoked "legislative history" arguments is wrong.]


The critical flaw in the Court's analysis is its implicit endorsement of the Court of Appeals reasoning that:

"`If Miller Music makes assignment of the full renewal rights in the underlying copyright unenforceable when the author dies before effecting renewal of the copyright, then a fortiori, an assignment of part of the rights in the underlying work, the right to produce a movie version, must also be unenforceable if the author dies before effecting renewal of the underlying copyright.'" Ante, at 215-216.

That reasoning would be valid if the sole basis for the protection of the derivative work were the contractual assignment of copyright, but Woolrich did not just assign the rights to produce a movie version the way an author would assign the publisher rights to copy and vend his work. Rather, he expressed his consent to production of a derivative work under 7. The possession of a copyright on a properly created derivative work gives the proprietor rights superior to those of [495 U.S. 207, 256] a mere licensee. As Judge Friendly concluded, this position is entirely consistent with relevant policy considerations. 22
In my opinion, a fair analysis of the entire 1909 Act, with special attention to 7, indicates that the statute embodied the same policy choice that continues to be reflected in the 1976 Act. Section 101 of the Act provides:

"A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant." 17 U.S.C. App. 304(c)(6)(A).

The majority, however, voted for Abend, and against Stewart. The relevance of the Abend case to "It's a Wonderful Life" is said to relate to derivative work rights. The Abend case related to the story by Woolrich, and the rights of Woolrich's successor Abend. The relevant story in "It's a Wonderful Life" is "The Greatest Life", by Philip Van Doren Stern.

Philip Van Doren Stern, who graduated from Rutgers and died in 1984, was a well-known writer of Civil War material [He wrote one book on the Lincoln assassination well-known to LBE. The book is notable for not understanding the full identity of Lewis Payne]. Van Doren Stern was unable to find a publisher for his 4,000 word short story "The Greatest Gift" and sent out 200 copies to friends in December 1943. One copy made its way to RKO, who purchased motion picture rights in 1944 and later sold them to Capra's people in 1945.

As one footnote, RKO and Capra both paid $10,000 for the movie rights, exactly the same amount paid for "It Had to be Murder"/"Rear Window." Both "It's a Wonderful Life" and "Rear Window" are on yahoo's list of 100 movies to see before you die.
"The Bucket List" is not among the 100.


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