.: The Right to Cultural Heritage: Film Preservation and the Law
A little review is in order here. In 1977, Star Wars became the highest grossing film of all time. It's popularity was unprecedented, and it became a pop cultural force that has never been seen since. It brought with it a whole industry of merchandising and ancillary production, while also creating visual effects pioneers Industrial Light and Magic, changing both the business and technology of film forever. At the 1978 Academy Awards, it was nominated for 11 Oscars, including those for Best Picture, Best Director, Best Screenplay and Best Supporting Actor, in addition to the other 7 which it won. It's two sequels continued the pop cultural sensation in 1980 and 1983, and both were among the top ten highest grossing films of all time (and, adjusted for inflation, are still within the top fifteen). The film trilogy is consistently cited as a classic of the medium and a significant part of American culture, and also as a great influence on artists of later times.
When the Library of Congress opened it's National Film Registry in 1989 to preserve films of serious cultural and artistic significance, 1977's Star Wars was among the first film prints added. George Lucas, who advised Congress on their preservation efforts, remarked at the time that he was "concerned about our national heritage" and wanted to see that films "that I watched when I was young and the films that I watched throughout my life are preserved, so that my children can see them." The American Film Institute furthermore ranks the film as the thirteenth most important American film of all time, while its sequels enjoy continued appreciation as well. Empire Strikes Back, for example, was voted as the greatest film of all time by Total Film magazine in 2006.
Simply put, Star Wars and its two sequels represent three of the most culturally significant American motion pictures in history. In 1997, they were still so popular that they collectively grossed over $200 million in an altered re-release. That year, however, George Lucas had this to say about the altered "Special Edition", quoted in American Cinematographer in February:
"There will only be one. And it won't be what I would call the 'rough cut', it'll be the 'final cut.' The other one will be some sort of interesting artifact that people will look at and say, 'There was an earlier draft of this.'... The other versions will disappear. Even the 35 million tapes of Star Wars out there won't last more than 30 or 40 years. A hundred years from now, the only version of the movie that anyone will remember will be the DVD version [of the Special Edition]...I think it's the director's prerogative, not the studio's, to go back and reinvent a movie."
He then said in 2004 when the films were altered even further: "The special edition, that's the one I wanted out there. The other movie, it's on VHS, if anybody wants it...To me, it doesn't really exist anymore. It's like this is the movie I wanted it to be, and I'm sorry you saw half a completed film and fell in love with it. But I want it to be the way I want it to be."
Lucas confiscated all circulating 35mm prints of the original versions, and only screened and broadcasted the altered Special Editions. The Special Editions have been the only versions given any dedicated VHS, Laserdisc, DVD or Blu Ray releases since then. The only subsequent promotion of the originals was in 2006 when the 1993 Laserdisc masters were included as bonus features on a DVD release, with the low quality one would expect from such old transfers presented as supplementary material.
Now, it is likely that none of this is news to you. But what becomes increasingly obvious when these two phases of the films' lives are put side by side is not only the philosophical debate surrounding this suppression--which, by neglect, is equated with destruction--of cinema's most classic films, but also the legal one. Namely, what right does Lucas have to be doing this, both in a legal sense and an ethical sense? That will be what this article will explore.
I am not a lawyer or a law student but I have spent the past while researching some of these issues, and this is the situation as far as I understand it; anyone with a more thorough understanding of United States law can correct me, but for now let us explore these issues as they now stand.
While films are both commercial art and entertainment, films are also a valuable part of a nation's cultural history. They offer a window into the past and illustrate the tastes, values and technologies of a society at a certain time and place. They embody a collective cultural memory and remain a valuable link to the past. Their protection is of the same importance as the marble statues of ancient Greece, the illuminated manuscripts of Medieval Europe, the architecture of Renaissance Italy, the novels of 19th century England or the modernist paintings of 20th century United States. As it applies to the United States, films are a unique artistic, cultural and technological achievement of that country, whose cinematic endeavours rank as among the most impressive in the world and a hugely important part of its own domestic popular culture. As George Lucas said, it is important that current and future generations be able to continue to see and appreciate the films of the past in the authentic, unaltered form in which they were made. For these reasons, it is an unsettling affront to both the culture and history of the United States of decades past that George has made unavailable and/or poorly presentable the Star Wars trilogy, as well as other works of his such as THX 1138, as the films originally existed.
Many argue that Lucas' actions here are entirely unethical. As the self-proclaimed artist behind the films, Lucas asserts that the films are his to re-shape and revisit as he sees fit, for reasons of personal artistic expression. Opponents, however, argue that at a certain point, films in a philosophical sense belong to the audience that embraces them. The Star Wars films formed such a meaningful part of peoples personal lives that their significance in this sense possibly looms larger than their significance to George Lucas himself. Moreover, as those who paid money over and over again for both the films and their merchandise, the result of which made Lucas into the billionaire he now is, there is a sense of entitlement in audiences that they have a right to continue to view those films with which they have fallen in love with. While this sense of entitlement is, of course, a bit of a legal illusion, there is a very real argument in the fact that when films become so huge, so popular, and become such an entrenched and meaningful part of popular society, they do in fact "belong" to society in the philosophical sense as much as they do to their creator(s). Michaelangelo's paintings, DaVinci's sculptures and Shakespear's writings, for example, carry such meaning for the culture of western society that if their respective makers were resurrected from the dead, they would be barred from their attempts to destroy all existing copies of their work were that their wish.
Motion pictures are the preeminent art form of the 20th century and a defining element of western popular culture, and therefore carry similar meaning. Any attempt to trivialize films as "just entertainment" or undeserving of being given serious accord has no real understanding of both art history and social history.
The most common sentiments that the few supporters of Lucas will invoke is that 1) Lucas legally owns the copyright to all the films, and 2) as the "artistic author" he should have the right to alter his work as he sees appropriate. "They are his films, and he can do with them as he sees fit" seems to encompass both of the above points. However, these are basically strawmen defenses, since the issue is about preserving the films as they were, not preventing further derivatives to be made (which would include re-makes, re-edits, adaptations, etc.). Basically, this issue begins and ends with the fact that Lucas can make his own artistic re-edit of the films to his heart's desire, since there can be more than one version of a film in existence. Secondly, and this will be dealt with later, that Lucas technically owns the legal copyright has no bearing on artists moral rights (otherwise one would have to defer to studio authority in almost every other case, where the studio owns the copyright), nor is it clear that Lucas is the primary artist behind the two sequels: he was neither the primary director nor the sole (and arguably primary) screenwriter of either films, qualifications the Film Integrity Act of 1987 demanded for allowance for someone to deliberately alter a motion picture. That act was withdrawn, in any case, and was criticized for simplifying the collaborative nature of motion pictures down to the control of two people, which further muddies any case Lucas would have had in this regard.
The situation demands addressing the two previous points in further detail though. The most obvious one is that Lucasfilm (and, by extension, Lucas) owns the copyright to all three films. It might be pertinent to delve into some brief history of film and the law. Most films are under copyright, traditionally held by the studios that produced the film, with rare exception. Star Wars was owned by Fox, for example, but in a very rare move Lucas retained sequel rights himself, and in 1998 or 1999 bought the Star Wars copyright from Fox in exchange for prequel distribution. They are held by studios because motion pictures fall into a special category of "works made for hire." The studios and their representatives initiate, pay for, organize, control and release the films, while the cast and crew do their work and are paid for the work (in effect, "hired" by the studio). So, the "author" is the employer who commissioned the work (the studio), rather than the cast and crew who worked on the film. Other "works for hire" examples include architecture, where the artist, that being the architect, is paid to design something with aesthetic and artistic qualities using technological means and a crew of laborers, for a company or individual who retains ownership and the right to further modify it as they see fit. Of course, buildings and structures of historical importance are protected by law from being irreversibly altered, but we'll address this parallel later.
The 1909 Copyright Act granted motion pictures a twenty-eight year copyright term, which could be renewed by the holder at the time of the original term's expiration, totalling fifty-six years altogether. The 1976 Copyright Act extended the term to ninety-five years and gave an additional term to subsisting copyrights. So, most films from the sound era are under copyright, while most silent films are in the public domain. Copyright is deliberately limited so as to compensate the holders financially during their lifetime so that they will continue to produce technological and artistic works (otherwise, if someone could steal your work and profit themselves, why would you bother in the first place; patents work the same way). Ultimately, it is there to serve the public by encouraging further creation. Copyright can be bought and sold, and while this does (or at least in theory ought to) benefit the originator, it does leave leave the originator powerless to stop distortion and alteration by the rights holder.
Many artists and filmmakers have tried to get the United States to recognize the "moral rights" of the artists, however, so as to prevent copyright owners from altering their work without consent. This means that the artist retains moral right of integrity of their work even after selling legal copyright ownership. Moral rights originated in France (droit morale which in the English translation doesn't convey the idea of "inner meaning" very well), but have not been totally applied to the United States. In the 1980s, this came to the fore when Ted Turner purchased the libraries of RKO and MGM and began to release them in colorized versions, to surprising popularity and financial success.
Many filmmakers voiced concern that this was tampering with the artistic intent of the filmmakers, who composed the films with black and white in mind; many of the directors were still alive, such as John Huston who had his Asphalt Jungle colorized and was aghast. The 100th Congress began hearings starting in May of 1987 to investigate how to assess this situation, and received testimony from figures such as Woody Allen and George Lucas, concerned for both cinematic history and the rights of the film's makers. The Film Integrity Act of 1987 had attempted to amend the Copyright Act to provide moral rights to prevent unauthorized recolorization. It stated that the principle director and screenwriter, whom it defined as the authors, needed to consent to the process. Filmmakers from Jimmy Stewart to John Huston gave advisory testimony and held lunches with Congressmen. In 1988, the U.S. did become a signatory to France's Berne Convention for the protection of moral rights of artists, but because of the controversy over motion picture rights caused by the colorization issue this was not extended to films for fear that it would prevent U.S. entry into the Berne Convention. The Film Integrity Act also ultimately failed for a multitude of reasons, from its fuzzily-defined moral right of integrity to its conflict with the U.S. Constitution due to its perpetual rather than limited-time rights; it was simply unsuited to the task of preserving films and giving artists control.
In 1988, the National Film Preservation Act was passed, which established the National Film Preservation Board and the National Film Registry, which sought to archive twenty-five films annually at the Library of Congress. Expressing his support for the National Film Preservation Act of 1988, Representative Sidney Yates likened it to laws protecting historical battlefields, buildings, landmarks and books. It also sought to establish a labelling system to state that a film had been altered from its original form, though the Director's Guild of America criticized that while it informed audiences it did little to protect the artists. The bill initially sought to require a change in title for altered versions, but this was compromised. In the end, while the actions of the 100th Congress brought a media circus of celebrity testimony and back-and-forth arguing, it did little to give artists control over their films and still allowed film owners to alter movies at will.
What does this mean for the Star Wars trilogy? It means that Lucas was smart to purchase the copyrights to all three, because that's the only way he can be absolutely sure that he can control their content the way he wishes. This is why studios still have ultimate control of films and can take power away from a director or anyone else involved. However, were the Film Integrity Act passed, Lucas might find himself worse off, in fact. The amendment failed in part because it was not very elegant. It defined "authors" as the primary director and screenwriter, which was criticized as arbitrary and simplistic by Jack Velenti and the MPAA (although it is in this respect better than the director-centric "auteur" theory). However, the solution of widening the definition of authors to reflect the collaborative nature of movie making would bring too many cooks into the kitchen and result in deadlock since it was forseeably inevitable that there would be disagreements between the multitude of authors. Nonetheless, even if the Film Integrity Act had stuck, Lucas might see himself locked out for most of the trilogy. He directed and wrote Star Wars, and would be free to stop outside alteration here, but would not have been recognized as the "author" of the two sequels, which he did not direct, nor was he sole screenwriter. Even if Irvin Kershner and Lawrence Kasdan consented, Richard Marquand died in 1987, and so Return of the Jedi would have remained frozen as per the stipulations of the Act.
Thus, from the "ethical" perspective of being "his films", this is not clearly the case. Even though he is the writer-director of Star Wars, the collaborative nature of filmmaking muddies the situation so much that confining authorship to this definition did not go uncriticized in the Congressional hearings. While during production the director has the power to control and eliminate the contributions of others (such as cutting out scenes and dictating lighting schemes and musical choice, for example), and might theoretically be considered to retain the right to continue to do so even after release, this is not a consensus shared by all. It also idealizes the situation: if studios (copyright holders) can ultimately control and ignore a director's wishes during production, why should this change after release? The only reason directors are granted overall control on a production is because the studios grant them this luxury, and this can be withdrawn at any given time if the director takes actions contrary to their wishes or makes the film in an artistic manner which is not approved of by them. This situation is complex, to say the least.
However, we have been dealing with an issue that is largely outside of the debate at hand. These issues have to do with a persons ability to alter, or block the alteration of, a film. Which, as stated, is ultimately separate from the more pertinent one: preservation. One can have a film altered by a filmmaker or copyright holder while continuing to preserve the original version which was released. The two concepts are not mutually exclusive, which is demonstrated by the current home video climate in which films have multiple versions released and restored, such as Blade Runner and Touch of Evil. In 1987 and 1988, such a reality was remote, which was why proposals such as the Film Integrity Act sought to prevent any alteration, because it was not reliably foreseen to have both altered and unaltered versions of the films available. At the same time, the Congressional hearing noted that since altered versions of films were allowed to obtain copyrights as derivatives there was a danger that "the copyright proprietors of these new versions may choose to keep the original films out of circulation, and thus out of competition", which is exactly what the problem has become with the Star Wars trilogy.
As we saw in the examples above, United States laws are very incomplete and controversial when it comes to motion pictures. The issues of historic preservation, artists rights, and the legal control of copyright owners simply has not been sorted out completely. And this, I would argue, is the main reason why George Lucas has gotten away with his explicit attempt to destroy the existence of the original Star Wars films. There simply is no legal infrastructure in place to prevent him from doing it. The legal ethics are in place, but not the laws themselves. I'll explain what I mean throughout the rest of this article.
Basically, George Lucas is doing two things. First, he is re-writing history, because he is distorting the historical truth of a film made in a certain point in time (such as using CG technology to update special effects, aside from the sheer fact that he is altering the film in less obvious but nonetheless significant ways) while not properly acknowledging or making available the original version. Second, he is destroying the historical and cultural heritage of the United States, which has amended its laws to protect such artifacts. What George Lucas is doing, then, for the reasons stated above, is actually contrary to the ethics of federal law, but due to the complexity of motion picture legality these laws have not been extended to films in the same ways that they have been to other art forms and artifacts of cultural history. The United States law has a mandate to protect and preserve its cultural heritage, and while it has organizational bodies in place to extend this to motion pictures, it has no actual legal authority to enforce a copyright holder to not attempt, for example, to erase the originals from existence, as Lucas has explicitly stated as his goal. This will be explained in greater detail below. Could someone challenge this and get laws passed to ensure Star Wars survives for the benefit of the public? A real-life People v. George Lucas? It may not seem as crazy as it sounds.
Few legal scholars have examined the issue of preserving film as cultural heritage in any thorough way, but Helen K. Geib has done the most enlightening job that I have come across, writing in 1999 for The John Marshall Law Review. I will provide some extensive quoting from her article "Classic Films and Historic Landmarks: Protecting America's Film Heritage From Digital Alteration", along with my own additional commentary and remarks as it applies to the case of the original Star Wars trilogy. Her original article is meticulously footnoted with legal references, and those wishing to inspect her citations should reference the original article.
Film is an artistic and cultural artifact, the same as famous paintings, statues, and buildings, and this was a fact that was recognized during the hearings of the 100th Congress, and ultimately the reason why various federal film preservation organizations were created. A vocal opponent of colorization was Elliot Silverstein, an officer of the Director's Guild of America, who maintained that film owners must recognize "a moral component in their ownership right--a custodial responsibility to pass on the works they hold to the next generation, unchanged and undistorted." He maintained that Congress would be working in the public interest if it drafted legislation restricting film owners from altering their properties. In her article, Geib here draws upon federal law enacted to preserve historical buildings as a parallel for theoretical film preservation law that could, and should, be put in place:
" C. U.S. Protection of Cultural Property
Cultural objects embody our cultural identity, carry our cultural memory, awaken a sense of community, and give us pleasure. The preservation of artistic works also stimulates contemporary artistic endeavors.
The preservation of historic buildings and districts is a powerful example of legal protection of cultural property in the United States. All fifty states and more than one thousand local governments have enacted historic preservation legislation. Congress has also recognized the important public interest in preservation. In particular, the National Historical Preservation Act articulates the cultural importance of our built environment.
1. The National Historic Preservation Act and the National Trust
The National Historic Preservation Act (NHPA) of 1965 followed several other legislative efforts to protect important historic sites. In particular, Congress chartered the National Trust for Historic Preservation as a privately funded, non-profit corporation in 1949. The National Trust acquires, preserves, and administers significant sites, buildings, and objects for the public benefit. The NHPA established a national register of historical sites, districts, and buildings significant to American history, architecture, archaeology, and culture. In a ringing endorsement of the important public interest in historic preservation, the NHPA described historic properties as part of an "irreplaceable heritage" providing a "vital legacy of cultural, educational, aesthetic, inspirational, [and] economic" benefits.
2. Taking Challenges to Historic Preservation Laws
Some landowners resist historic preservation and attack preservation laws as unconstitutional takings of private property. In a landmark 1978 case of Penn Central Transportation Co. v. New York City, the U.S. Supreme Court held historic preservation were constitutional. Most takings challenges focus on a regulation's economic impact on the individual landowner, while conceding that historic preservation serves a public purpose.
Since Penn Central, the Supreme Court has decided several takings cases based on challenges to land-use regulations. A regulation is unconstitutional if it fails to substantially advance a legitimate state interest, if there is no "nexus" between the government interest and the restriction, or if the regulation denies the landowner all economically viable use of the property. Preservation statutes would survive a renewed constitutional challenge under the post-Penn Central line of land-use cases.
D. The National Film Preservation Act
Congress recognized the important public interest in film preservation with the enactment of the National Film Preservation Act (NFPA). The primary purpose of the Act is to preserve films for future generations. The NFPA also established a National Film Registry to maintain and preserve "films that are culturally, historically, or aesthetically significant." Inclusion in the Film Registry signifies that a film has become "an enduring part of our national heritage."
Congress established the National Film Preservation Foundation in 1996 as a private, charitable, non-profit corporation. The Film Foundation has the usual powers of a corporation, including the power to administer property and bring suit. The Film Foundation was chartered to further the protection, preservation, and accessibility of American films "for the benefit of present and future generations of Americans."
E. NFPA and NHPA: Protection of Cultural Landmarks
Films, like historic buildings, are an important part of the nation's cultural heritage. Congress recognized the public interest in preserving our film heritage in the NFPA and our built environment in the NHPA. The acts are strikingly similar in purpose and effect. Both recognize the strong public interest in protecting cultural property and confer a new status on buildings and films as cultural landmarks.
The NHPA begins with a congressional finding that "the spirit and direction of the Nation are founded upon and reflected in its historic heritage." The preservation of that heritage for the benefit of future generations is in the public interest. Similarly, the NFPA declares that "it is appropriate and necessary for the Federal Government to recognize motion pictures as a significant American art form deserving of protection." Each act contains provisions authorizing the national government to assist and encourage public and private preservation efforts. Congress also established two private, non-profit organizations to aid in preservation efforts: the National Trust and the Film Foundation.
In addition, the NHPA and the NFPA encourage public appreciation of our historic heritage through the establishment of national registers. The National Register and the Film Registry recognize culturally and historically significant buildings and films. The registries educate the public about the nation's past by identifying a diverse range of buildings and films as cultural landmarks."
However, as most films are currently under copyright, there is no agency by which they can circumvent the wishes of the film's rights owners; co-operation with these organizations is voluntary as far as I can tell. This makes current federal organizations and legislature inadequate; the loss of the original Star Wars trilogy is testament to that.
It is through the legal protection afforded by cultural property rights that films must be preserved under; films are the cultural property of the society that produced it. "Individual films record the realities of contemporary life and reflect society's preoccupations and attitudes," Geib writes. "An altered version of a film is a distortion of American history and a misrepresentation of American culture. We need a new approach if we are to protect America's film heritage. Protection must be permanent, must prevent all alterations, and must not rely on the discretion of an individual rights holder. Legal protection of films based on society's cultural property rights satisfies all three requirements." This is the only real legal protection for films that relies upon a historical perspective for the benefit of history and culture, rather than the personal interests of the artists or rights holders. While filmmakers obviously will argue for moral rights for their own personal benefit, as I have mentioned, this does nothing for the cause at hand here. What if Orson Wells, being in financial turmoil at the end of his life in the mid-1980s, had agree to have Citizen Kane colorized for financial gain? What if a filmmaker, if they were recognized as the "author" of a film, decided not to act on her moral right to prevent a rights holder from altering a film? And what if you have someone like George Lucas who has explicitly stated as his goal the eradication of history? While their wishes to alter or allow the alteration of a film are one thing, the preservation of a film as it originally was is quite another thing entirely. Moral rights are not suited to historical preservation.
For these reasons, as Geib argues, entry into the Berne Convention and any future allowances for moral rights will continue to allow for film history to remain unprotected and vulnerable to destruction, as it now is. This is especially dangerous because digital technology allows for easy and insidious levels of alteration that Congressmen, rights holders and filmmakers in the 1980s could never have dreamed of. Furthermore, even if a copyright holder did not wish to alter a film, it will inevitably enter the public domain where it will be free of any protection the holder would have afforded it. Copyright law and moral rights law protect only the interests of legal rights holders and artists, rather than society and the public interest for preservation of heritage. Geib writes the following:
"B Cultural Property Rights Will Protect America's Film Heritage
Society's cultural property rights, unlike copyright and the moral right, can protect film from digital alteration. First, because society has a continuing interest in preserving its heritage for future generations, cultural property rights protect a work of art for as long as the work is extant and the statute that guards the work is in force. Second, because they are public rights, public agencies enforce cultural property rights. Accordingly, enforcement does not depend on the discretion of individual rights holders. Lastly, cultural property protection can prevent all alterations to a work.
Society has a tripartite interest in the arts: creation, dissemination, and preservation. The copyright, though a private property right, exists to serve the public interest in artistic creativity. Further, the Constitution limits the term of protection to ensure public access to works of art. Additionally, Congress has recognized the strong public interest in the preservation of our cultural heritage with the enactment of the NFPA and NHPA.
Historic preservation laws are a significant restriction on the rights of landowners, preventing property owners from altering buildings in ways that would damage their historical integrity. This restriction recognizes and effectuates the public interest in the preservation of our built environment. Public interest in preservation, not the architect's moral right of integrity, justifies preservation laws; only the public interest in preservation will take precedence over landowners' property rights.
Society has a corresponding interest in preserving the historic integrity of its film heritage. This public interest in preservation justifies limiting the private property interest of the copyright holder. The copyright is already constrained by society's first two interests in the arts: the copyright exists to encourage the creation of art and its term is limited to ensure public access. Prohibiting the digital alteration of films will promote preservation, the third important public interest in the arts.
While such a prohibition would greatly benefit the public, the corresponding limitation on the copyright owner would be minor. A prohibition on alterations does not abridge the copyright holder's right to copy, sell, perform, and display the work. The restriction only slightly limits the right to prepare derivative works; the copyright owner can still produce new works based on the copyrighted work, such as a "remake" or "novelization." Increased preservation efforts may themselves be of long-term economic benefit to the film industry, since public recognition of the cultural importance and artistic merit of classic films would likely create greater consumer interest in those films.
III Amend the NFPA to Protect Digital Alterations to American Films
Society has a great interest in preserving the authenticity of its film heritage. Amending the NFPA to prohibit digital alterations to American films will safeguard America's film heritage for the benefit of our own and future generations. The protection must be perpetual in duration and must prohibit all changes to the films. Protection must extend to all films, not just a few great ones. Minor artistic works also teach us about our history, and we will have a deeper understanding of the great works if we also understand the context in which they were made.
Film owners argue that preventing alterations to films interferes with the right of consumers to choose the version they prefer. However, this is a hollow protest. For all but the most famous films, film owners will only market the version in which they have the greatest financial investment. Since the public does not have the option of renting the film from an archive, the only choices will be to watch the film in its altered version or not at all."
This is especially true for the Star Wars films. One of the reasons that the Special Editions sell so well is because they are the only version offered; if you had waited for Star Wars on DVD, you could in 2004 buy the Special Edition or continue watching your 1995 VHS tapes. The same applies for the impending Blu Ray release, which will seem successful on paper but only because viewers would rather watch the Special Edition in high-def rather than not watch any version in high-def. As Michael Wantuck wrote in his article for the Ohio State Law Journal, in order for film "to be appreciated, exhibition is crucial." Although alterations are usually duplicate derivatives, just because the "original remains unharmed, sitting in a can in a film library somewhere, does not justify" altering a film, since one does not have high quality access to it. This was the same fear that was expressed during the 100th Congress, that since owners typically control both unaltered and altered, the original could simply be suppressed in favour of the "enhanced" revision preferred by the rights holder (for either personal or financial reasons).
However, Geib's article here is outdated in one respect, which is preventing alteration, period. At the time of the article's writing, 1999, one effectively had to choose between allowing filmmakers free reign to alter films and allowing the originals to not be preserved, or allowing the originals to be preserved and not allowing filmmakers to alter films. This is because, with few exceptions, one could only have access to a single version of the films back then. Since 1999, the DVD and Blu Ray age has allowed the wonderful environment in which it is customary to release all available versions concurrently and in the highest possible quality, a reality which did not exist before the 2000s. Digital restoration too has allowed for the same scenario with regards to the original elements--Geib suggests that the originals take precedent over the rights holders or filmmakers wishes to re-visit the films because one had only the original film material with which to manipulate, and so inevitably one version would have to be derived from less-high-quality duplicates. Now, however, the presentation of both new and original versions are both done via digital high resolution scans of the same material (usually in 4K but now sometimes in 8K resolution).
This situation is fortuitous because it effectively nullifies the entire debate. Filmmakers, rights holders and society no longer has to duke it out for supremacy because all three can be satisfied on basically equal grounds. Filmmakers can re-visit their films, rights holders can alter their own versions, and society can have access to the originals. The situation is resolved. Now, there is a final caveat that I will address at the end, which is that, although it is possible to do this, and in practice it is done, there is no enforcement to ensure that it is done. Such is the case for Star Wars. While nearly every famous film in multiple versions has been offered in high quality restorations by their owners, the studios, Lucasfilm is perfectly capable of offering the Star Wars films in the same way, but instead only has done justice to the one version George Lucas wishes to have presented. With Lucas estimated as being worth $3.5 billion, and with the Star Wars trilogy possibly the most popular trio of films in the world, there are both the financial resources and marketplace incentive to do so, but Lucas refuses all the same. Geib continues:
"The NFPA is an appropriate platform for this proposed legislation. The NFPA is a strong statement of the public interest in protecting America's film heritage. Currently, the NFPA's primary purposes are to encourage the physical preservation of films and to increase public appreciation of, and access to, older films. A prohibition on digital alterations complements the NFPA's program of physical preservation. The Film Foundation can assume the responsibility of enforcing the act. The Film Foundation's mandate is to further the policies of the NFPA, and this organization has the necessary corporate powers, including the power to bring suit.
The following is a proposed statutory language model:
No on, including the copyright owner, shall digitally alter an American feature film after its first publication. A "digital alteration" includes, but is not limited to, the addition of new images or sounds, the deletion of existing images or sounds, and the manipulation of existing images or sounds through digital technology. Archival restoration that attempts to restore a film to the condition it was in at its first publication is excluded from the scope of this Act.
The NFPA defines "film" and "publication". Since the amendment applies only after a film's initial release, it does not affect film production. Digital alteration does not include changes that are made by employing different technologies. For instance, alterations for the purpose of television broadcast, such as the insertion of commercials, time compression, and content editing, are excluded. Likewise, traditional methods of restoration are excluded because they rely on standard film editing techniques. The amendment excludes the small class of digital alterations made in the course of archival restorations, as the purpose of those alterations is to return the film to its original condition. These changes are made in the service of preserving films in their authentic form."
Given my previous point, I would suggest that Geib's proposed legislation here be modified in two ways where it is inadequate. One, artists and rights holders will no doubt challenge it as infringing on their rights; while Geib sees those rights as being circumvented by society's right to its heritage, which I would agree with, this will no doubt result in heated debate. But more importantly, for the reasons already stated, multiple versions can be presented whereupon moral rights holders and copyright holders can both be satisfied in their alterations while still preserving the originals. The second way the legislation is inadequate is the more troublesome one. That is, since these copyrighted films are sold for commercial profit, if they are unavailable for purchase they are effectively unavailable to be seen, and if they are not continually updated with new presentation technology (i.e., high-definition, Blu-Ray), they are effectively not preserved; a restored print collecting dust in a publically inaccessible archive might as well not exist. This means that either the legal rights holders must be forced to continue to make the original versions available in the highest quality possible, or that a federal body would have to provide them for commercial sale itself. The second possibility would seem to be too complicated to be passed without trouble, and so the solution would probably lie in mandating the studios or rights holders be responsible. This would be very easy--it already is occurring.
Studios are especially eager to present original versions of popular films; had Fox remained in control of the Star Wars franchise, the original films would have long been fully restored and available in high definition. Filmmakers too take pleasure in letting audiences have access to multiple cuts of films. Ridley Scott wrote a letter included in the 2007 Blade Runner release: "I have included the four previously seen versions of the film in newly transferred anamorphic widescreen with original, unaltered 5.1 sound taken from the archival six tracks. My goal was to give you the film in whatever form you prefer, with the best picture and sound quality possible."
Complication does enter the picture for less popular films, where a rights holder without as much financial resources will either not be able to present the films, or will perceive there to be not enough market to recoup the costs. In these cases, the National Film Preservation Board (or a newly created organizational body), under the NFPA, should be given a budget to act on behalf of the rights holders; since the rights holders would not be paying for it, all or part of the sales should be given to reimburse the NFPB for its efforts. In situations where the owner has the resources to preserve and present the film, and the reasonable expectation of financial reimbursement through sales, the federal government must mandate that they, as custodians of national treasures, go through with it, which would be the case with Lucasfilm. A final possibility is that the NFPB (or its equivalent) be responsible for the oversight of the presentation of those films it has listed on the National Film Register in partnership with the rights holders and distributors. Geib mandates that all films be preserved (and thus presented), but the starting point should be those films deemed most important. Geib continues:
"This legislation would withstand a takings challenge brought by a copyright owner. The amendment serves a legitimate public purpose in protecting the integrity of our film heritage. There is a close nexus between the goal and the means: the public interest in the preservation of films in their authentic form will be effectuated by prohibiting alterations to those films. Finally, the proposed amendment does not deny the film owner all economically viable use of the property. The copyright owner will still realize a reasonable return on his investment. The film owner may broadcast, sell, and otherwise exploit the film. In addition, no affirmative obligation is imposed on the film owner to physically preserve the film. The statute would only prevent the owner from destroying the film's authenticity.
Filmmaker Martin Scorsese, an ardent supporter of film preservation, has described the importance of America's film heritage: "[f]ilm is history. With every foot of film that is lost, we lose a link to our culture, to the world around us, to each other, and to ourselves." Digitally altering a film, whatever the motive, destroys a piece of America's cultural heritage and deprives us of another link to our past. Films, like historic buildings, are national treasures. We must protect them."
She might have also finished with George Lucas' statement from the 100th Congress hearings, quoted at the beginning of this page.
So then, here is what you should take away from this article:
-Films are part of a nation's cultural heritage. They are indespensible for maintaining society's history and deserve to be preserved.
-Federal and state law protects every form of cultural heritage, from houses, landmarks, paintings, sculptures and books--except motion pictures. This protection supercedes the wishes of their legal owners or custodians to do with them as they want.
-Congress recognizes the importance of including films under the umbrella of cultural heritage protection that encompasses the above, and has attempted to include it. While baby steps were taken towards this goal, the interference of the personal interests of studios, unions, guilds, filmmakers and others with a personal investment in the films in question have stalled proper legislation from being passed.
-Proper legislation has not been passed because the solution was redirected in the questions of copyright and moral rights, which resulted in deadlock. However, it is frustrating that no one formally recognized the obvious fact that this has nothing to do with historical and cultural protection.
-As films are recognized by the federal government as part of the U.S.'s cultural heritage, they should be protected under cultural property rights the way other art forms and historic artifacts are. The only reason they currently are not is because no one has actually brought the motion before Congress.
-As George Lucas has stated that he intends to deliberately neglect and destroy the country's cultural heritage, what he is doing is in theory illegal, but there is no enforcement agency to stop him as there would, and should, be had a proper film preservation statute been in place as most lawmakers agree there should be.
So, could someone challenge Lucasfilm and charge them with destruction of national heritage and cause proper film legislature to be passed? I'm not sure if I'm qualified to put an answer to that, but it's an interesting scenario to imagine. He would also have to relinquish suppression of the original American Graffiti, which had its opening shot CG'd in 1998, Raiders of the Lost Ark, which has had continuity errors airbrushed in 2003 and a new CG shot in 2008, and THX 1138, which had more radical re-editing and CGing in 2003 than any of his Star Wars films. For all his historical endeavours, George Lucas is the biggest cinema history theft since Ted Turner. He needs to be stopped, and it should be the responsibility of the federal United States government to do so.
Geib, Helen K. "Classic Films and Historic Landmarks: Protecting America's Film Heritage From Digital Alteration." John Marshall Law Review, volume 30, 1999-2000.
Penn, Michael C. "Colorization of Films: Painting a Moustache on the Mona Lisa?" Cincinnati Law Review, 1989-1990.
Renberg, Dan. "The Money of Color: Film Colorization and the 100th Congress." Hastings Communication and Entertainment Law Journal., Volume 11, 1989.
Wantuck, Michael Sissine. "Artistic Integrity, Public Policy and Copyright: Colorization Reduced to Black and White." Ohio State Law Journal, volume 50, 1989.