The Reclusive Collector, or How Films Become Lost

Film people are a different breed.  It’s a necessity.  Some of you have heard the legends about some guy who has discovered the only print of Lon Chaney’s London After Midnight (1927).  The story goes that he’s just waiting to cash in on the bonanza when the film’s copyright expires.  Well, there isn’t a bonanza.  The potential market for a video release of London After Midnight is so small that the money probably wouldn’t even cover the costs of transferring a nitrate print to video.

Film collectors don’t collect films because we want something rare and valuable (there are a few, but not many, who do that).  We collect films because we love them.  We collect films because they look beautiful on the big screen.  We collect films because we know that many will be neglected and thrown away unless we keep them.  Most of us would like to do more public shows, but the way the laws are written makes it difficult.  (See my other post on “The Marx Brothers Explain Copyright Law” for a more detailed rant on this).

The rules for public performance of music are much more civilized than they are for film.  I can even bend the artist’s intent and still get by with it.  If I decided that I wanted to become Hitler Elvis, and that I wanted to sing Elvis songs in German while doing a “Sieg Heil,” I could probably do it.  I’d have to pay the BMI/ASCAP fees and keep a record of which songs I played, but I could do it.  I use this example not because I’m advocating it, but because artistically it’s about as far from what Elvis did as I can imagine.

But for film it’s different.  Say I wanted to run a retrospective of Walt Disney movies, and I wanted to do it respectfully using quality prints.  Say I wanted to pay the proper royalties and contacted the people at the Disney corporation.  They’d file charges against me!  Sure, I can be disrespectful to Elvis for a price!  But even paying proper respect to Mickey Mouse gets the Feds at your door.

It’s much easier for a collector to sit on his collection and not let anyone see the films he has.  No hassles, no effort.  It avoids all kinds of issues.  I’ve been called evil and greedy by people who want me to release a copyrighted film on video (I won’t).  I’ve been called evil and greedy by movie studios who are upset that I saved something they threw out.  Don’t believe me?  Here’s a real story…

A number of years ago I was in an old film exchange in Vincennes, IN.  They were going to close it and throw out all the films that no one wanted.  Down in the guts of the building was a 35mm print of a film listed as Going All the Way.  I recognized the title. It was based on a best-selling novel by Dan Wakefield, and much of it was shot near my house.  The owner of the building wanted $50 for the print, so I figured I could watch it once and trade it.  At least I’d see it on a big screen.  Remember, I have 35mm projectors at my house.

How, you may ask, did a print end up here?  It happens all the time.  The studio makes a decision: “Are we going to make enough money off a future show to justify paying for return shipping on this print?”  If not, they just leave it for the owner of the theater or film exchange.  This is a long-held tradition in the film industry.  Dawson City, Alaska became the last-stop dumping ground for hundreds of silent films, and they were miraculously preserved due to the low temperatures.  The practice of dumping continues to this day, which is how I found this print.

A few years later I happened to meet the author of the book Going All the Way, Dan Wakefield, at a poetry reading.  Knowing that there’s an audience for personal appearances, I asked him if he might be willing to appear at a screening of the film if I could arrange it.  He was very nice and told me that he’d be happy to do that.  Unfortunately, I had no idea who owned the film, and he apparently didn’t, either, so that made it doubly difficult.

Like many independent films, Going All the Way only barely got made.  Even though the book was a best-seller, and Dan Wakefield is a major author, it was a tough sell.  Since there’s a fair amount of sex in it, the major studios shied away.  Studios like to make films with explosions and not ones from character-based books.

Going All the Way got sweet revenge on the studios by being one of those rare independent films with a long shelf life.  Ben Affleck appeared in it (before he became famous), which suddenly makes an obscure indie into a marketable feature.  The copyright records indicated a complex web of finances and loans. Unfortunately, I couldn’t track down who owned it for a theatrical screening.  The rights history is online, but there are video rights and theatrical rights, and all sorts of other ancillary things.   After a while it looks like buckshot on a rural stop sign.

A buddy of mine tipped me off that the theatrical rights might be owned by a particular studio.  I won’t implicate them, partly because they’re generally pretty nice, but they’re known the world around.  I called my contact there, and he told me that it was owned by a studio sub-division, and he gave me the contact information.

The lady yelled at me and screamed that I was an evil film pirate, and that they would sue me.  I thanked her and told her that I’d suddenly lost the film and I wouldn’t be showing it.  Normally, I’d offer to let the studio borrow the print or use it for remastering, but not with an attitude like that!  She confirmed that they didn’t have a negative or print material on it.  (It’s not surprising… I think I counted twelve ownership changes since the film was released.  Studios just bought rights in bulk and didn’t check to see if film shipped on every title.)

I point out that this explains why there isn’t a legitimate DVD or Blu-Ray of Going All the Way.  With the film masters missing, no one has material good enough to reissue the film.  It’s not exactly lost, but it’s the next thing to it.  We’ve got the low-definition master tape made for cable release and VHS.  That’s it.  Amazon has some bootleg DVDs made from the VHS tapes.  I’m sure they look terrible.

Let me interject here that projecting 35mm is a lot of work.  You have to change reels every 20 minutes.  It’s heavy, and everything needs to be rewound afterward.  I don’t do it unless I really need to.  So this film had been sitting in my basement, unseen, for all this time.  I will also interject that it was on Agfa stock, important because Agfa is an undated stock that a lot of independent films used, because it was pretty cheap.

Fast forward another year or two.  A film festival wants to run Going All the Way.  They want to get Mr. Wakefield to attend the screening.  They’ve heard I have a print.  They contact me and ask what I know about it.  I tell them that the owner studio is hostile, but if they can get a legal clearance, I’d be happy to let them use the print.

But first, I’d need to watch it to make sure the print is in good shape.  In all these years I hadn’t seen it.  I figured it was time.

I put in the first reel.  It was ratty and brittle, but runnable. A couple of splices made with masking tape.  Ick.  The credits came up with the title, and a 1950s car.  Looked OK.  As  I let it run, I realized that Ben Affleck wasn’t in the movie, nor was anyone else I knew from the cast.  This wasn’t the right film!

What I had gotten was a soft-core drive-in film called Goin’ All the Way (no g—that’s the key).  I hadn’t known it because it was on undated film stock. I never had the film that I thought I’d had.  The festival ran the correct movie from VHS (gag). All that work to track down the owners and the rights, threats of lawsuits, and nothing!

And still, it’s possible that Going All the Way will never be recovered on film.  It was made in 1997!  If this film were a person, he wouldn’t be old enough to drink yet!

This is how films become lost.  It’s also how collectors, people who want to play the rules, will say, “I don’t have that.  I don’t know anything about it.”

No wonder that 50% of all films made before 1950 are said to be lost today.

The Marx Brothers Explain Copyright Law

I get very upset about US copyright law. It is so labyrinthine that a person can do all he can to be honest and forthright, but still step on legal toes.  It’s even worse that people claim to own rights they don’t own, and other people deny rights to films that they actually do own.

The whole thing reminds me of the Tootsie Frootsie routine from A Day at the Races (1937), in which Chico cons Groucho out of a wad of cash. In case you haven’t seen it, you can see it  here.  Inspiration struck me, and this skit was born.

I’m in favor of copyrights, and paying fees when necessary.  I do want to remind you that the constitutional founders wanted limited terms, and Congress has extended the term of copyrights at least three times.

As silly as this seems, all of the law in here, to the best of my knowledge, is exactly correct.  There are a lot of lawyers out there who are every bit as unethical as Chico.

Films are dying because of this foolishness.

Groucho: Hey, Ravelli, I found a couple of old movies.  I think one of them is yours.  How much do you want me to pay you to show it?

Chico: Oh, no.  That’sa mine.  I sue you.

Groucho: I found it in the trash!

Chico: Hey, thatsa right.  I throw it away.

Groucho: So you want to sue me for showing something you threw away?

Chico: You guess it.  I sue you.

Groucho: Well, I could buy it from you.  How much?

Chico: I no sell it.

Groucho: How about if I give it back to you, and then we show it?

Chico: OH, NO!  I no want it.

Groucho: Maybe I could just pay you to show it once.

Chico: I no want you to show it.  I sue you.

Groucho: You realize it would cost more to sue me than it would just to take my money.

Chico: OH, NO!  I sue.  Trusta me, I sue.

(Harpo comes out, dressed in judicial robes, and passes out pieces of paper saying CEASE AND DESIST.)

Groucho: You know, just retaining that shyster lawyer there costs more than this film is worth.

Chico: You’re right, but I sue justa the same.

Groucho: Why?

Chico: Thatsa whadda we call precedents.  If-a I sue you, then I’ve make a precedent, and then it make-a it easier to sue the next guy and-a win.

Groucho: So you’re suing me for wanting to show something that you threw out, you don’t want, and it’s not worth the money that you’re spending to sue me.  I can’t buy it from you and you don’t want it back.

Chico: I do this just-a because I can.

Groucho: It doesn’t matter.  I found another movie too, and you don’t own that.  I’ll just show that one instead.

Chico: You can’t do that!  It’s a copyright!

Groucho: How do I find out who owns it, then?

Chico: Well… justa by accident, Pinky and I, we own a law firm.

Groucho: Why I am not surprised?

(Harpo comes out again with cards saying “Ravelli and Pinky, Attorneys at Law.”)

Groucho: OK, I’ll bite.  How much does it take to look up the copyright for this film?

Chico: I can’t tell you.

(Harpo whistles and shakes head.)

Groucho: I thought you were a lawyer.

Chico: Thats’a why I can’t tell you.

Groucho: What would it take so that you could tell me?

Chico: Well, I need a retainer.  Money.

Groucho: I knew it.  How much?

(Harpo holds up five fingers and whistles.)

Groucho: Five dollars?  Well, that’s reasonable….

Chico: No, he’sa not got enof fingers.  Fifty dollars.

Groucho: All right.  You know, Custer wasn’t even scalped like this.  (He hands him money.)

Chico: Atsa fine.  Now, if the film was-a registered with the Library of Congress, then it’s a copyright.  But that’s OK, the copyright, she expire after 28 years.

Groucho: Great!  This movie is more than 28 years old, so I’m in the clear!

Chico: Not-a so fast.  Congress, she pass-em a law that lets the owner renew it for another 28 years. But sometimes they renew, and sometimes-a, they no renew.

Groucho: Dandy.  I suppose there’s some sort of published master list of renewals somewhere?

Chico: Ooooooh, no.  You gotta find em!

Groucho: And where might I do that?

Chico: Well, just-a by accident…

(Harpo holds up a card saying, “Pinky’s Copyright Research.”)

Groucho: Then I don’t need your law firm anymore!

Chico: Sure ya do!  I tell-a him what to look up, he goes to the Library of Congress to look it up, and then I certify it.  That’s a called “due diligence.”

Groucho: How much will that be?

Chico: At’s a thousand dollars!

Groucho: A thousand dollars?  Why?

Chico: Well, ya gotta fly him out to Washington, put him up in a hotel for a day, and then fly him back.  Atsa thousand dollars.

Groucho: Why can’t I just send him out by car or train?

Chico: Then ya gotta feed him.  You’d lose on the deal.

(Harpo opens mouth ravenously.  Groucho cowers.)

Groucho: I can hire a local attorney to do it, and then save all that money.

Chico: You think you can find an attorney more honest than me?

Groucho: I’d hasten to think so.

Chico: In Washington?

(Groucho rubs neck and thinks.)

Groucho: I never thought it would happen, but you made a persuasive argument.  Are you proud of yourself?

Chico: I’m proud of this wad of cash I got from you.

Groucho: Hypothetically speaking… you do know what hypothetical means, don’t you?

Chico: Sure.  That’s the long part of a triangle.

Groucho: No, you’re thinking of a needle the doctor uses to immunize you.

Chico: Hey, the judge gave me immunize to testify against Pinky!

Groucho: Well, I can see I’m not going to get anywhere this way.  Let’s say this: imagine that I paid you the money, and imagine that Pinky went to do the research.  Imagine that there’s a renewal.  Then can I run the film?

Chico: Well, you gotta pay the guy who owns the film.

Groucho: Won’t that be stated in the renewal?

Chico: Sometimes yes, sometimes no.  Sometimes a guy renew-a film that he no own, and that’s a void renewal.  Sometimes-a he sell it to someone-else, and that might not be recorded in the papers at the Library of Congress.

Groucho: Then how do I find out who owns it?

(Harpo holds up a card, “Pinky’s Copyright Detective and Genealogy Service.”)

Groucho: And how do I find out if the renewal is void?

Chico: You need a lawyer for that.

(Chico smiles and offers card again.)

Groucho: All right then, I can just wait until the second term of copyright expires.

Chico: Oh, no, you can’t do that.

Groucho: I’m certain of that.  But tell me why anyway.

Chico: Well, Congress, she’sa pass another extension.  You see, if you register once…

Groucho: For 28 years…

Chico: Yes, and if they renew…

Groucho: For another 28 years…

Chico: Yes, well, Congress, she’s a make the renewal period 47 years.  Then shesa change her mind again.  Now it’s 67 years.

Groucho: That makes the total copyright period 95 years.

Chico: That’s it!  You guess it!

Groucho: There’s no possible way I could make enough money from showing this film to offset the costs of finding out who owns it.

Chico: That’s what I discovered.

Groucho: I wanted to show it for preservation purposes.  For an old time movie.

Chico: Oh, that’s a no good.

Groucho: It’s a lot less work just to throw it away.,

Chico: Now you understand why I threw mine away.

(Groucho tosses print away.)

Chico: That’s what you call film preservation.

Just in case:
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