Monthly Archives: June 2019

The Gray Market

(Read the title in a spooky voice. Maybe imagine lightning booming in the background.)

Now let us bring up the specter of the gray market. A print of a film is in the public domain or it isn’t. There are no shades of gray there. We’re not involving donor restrictions if you’re sourcing from an archive print — that’s another matter entirely — but if you possess a print of a film unencumbered by copyright, that print is yours to do with as you see fit. The film belongs to everyone and that includes you — that’s the very concept of the public domain.

The “gray market” does not exist. It’s a term invented by publishers to discredit resellers, especially those legitimately buying items cheaply in one market and reselling them in another market that the publisher is trying to price-gouge. Think buying a textbook in East Asia and reselling it in the US, where the same book retails for a hundred times more. This is perfectly legal as the courts have ruled numerous times. It is the right of first sale, as expressly defined by section 109 of title 17 of the US Code. All the publisher can do to legitimize their price inflation is to try and tarnish the resellers by linking them to black market bootleggers and counterfeiters in the minds of potential buyers. That’s what the “gray market” is.

Now there are orphan works where the trail of ownership has been lost and nobody is quite sure who the film might belong to. Releasing these films is sometimes referred to as “gray market” but it isn’t. It’s simply piracy — black market — but it’s banking on the fairly safe bet that whoever does own the film has no idea that they do and will not pursue the infringement. Harpodeon does not deal in orphan works, but I personally have no issue with pirating films in this case — there’s zero chance you’ll see them otherwise.

There are those who won’t watch releases from Grapevine, Alpha, etc. — including Harpodeon, of course — because they’re “gray market” distributors, and frankly, that’s idiotic. Their videos are no less legitimate than those from Kino and a great deal more legitimate those from Edition Filmmuseum. Now, Alpha’s image quality ranges from passable to you’re not even sure if there’s a picture beneath the murk and avoiding them in that case is understandable. Granted, several of our videos are sourced from very poor prints — that’s why we try to be upfront about the quality and why we provide screenshots and video clips to give an unvarnished idea what the print looks like. There are those that want perfection and would rather have nothing than fall short of it. They usually get nothing. Far be it from me to call them wrong, but when it comes to rare films, I’ll take what I can get and be happy it’s available at all.

You’ll see this idea frequently in old Usenet discussions but there are those that cling desperately to it still that one who restores a film then has some copyright claim on it. To begin with, there’s a question of what “restoration” means. In some cases, it means a great deal of work assembling disparate elements and working backwards to find what the original release must have looked like. It can mean nothing more than cleaning and transferring the film, with the cleaning either done chemically/mechanically to the film before the transfer or digitally after. Some “restorations” don’t even bother with the cleaning bit: restoration can simply refer to finding a definitive print and copying it. And let’s not pretend, “definitive” in this case often means “the one we have”.

For all our post-HD releases and the later SD releases as well, we chemically clean the film itself, transfer it, disassemble it into its individual shots, stabilize the image of each shot, diminish or remove the flickering, adjust the levels, diminish the grain where it’s become excessive from multiple generations of copying, sharpen it, tint it where the tints are known or can be confidently guessed, and then reassemble the film. Particularly distracting damage (e.g., a torn sprocket hole on 9.5mm, which leaves a heavy scratch up the center of the film) is painted out frame by frame. If the titles in the master are replacements (all Excel prints from the 1930s, for example — they didn’t use the original Selig titles) or if they’re badly cropped (example of what I’m talking about from The Juggernaut) or illegible, then the titles are re-created to more resemble the originals. When we have several prints of a film, all of them are transferred and combined in the chance that one print has more or longer scenes than another. When you’re dealing with old film, absolutely no two prints are identical.

Of course, the more slavish your restoration work is to bring the film back to its original release form, the less eligible for copyright protection it becomes. That’s where the old Usenet argument falls flat on its face. There may be a great deal of labor involved in restoring a film but no creativity at all. Copyright protection is about promoting creativity. If your goal is a copyrightable work, then you don’t want to restore anything, you want to transform it into something new. For silent films in the past, that was commonly done by replacing the titles with your own or by Raymond Rohauer’s old trick of rearranging the scenes to tell a slightly different story, but that’s mostly fallen out of favor nowadays. The “special content” copyrights you see claimed on public domain titles refer only to original content, i.e. the score.

The definitive case on photographic copyright law in the US is Bridgeman v. Corel (1999), which found that “a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original.” The last line is a reference to Feist v. Rural (1991), which established that labor and skill are immaterial to copyright and a collection of uncopyrightable material remains uncopyrightable no matter how much work went into it. Simply put, “the sine qua non of copyright is originality.” This was expanded upon in Assessment Technologies v. Wiredata (2003), which found that a work based on public domain material that nevertheless meets the threshold of originality for copyright protection still has no claim on the underlying public domain material itself. Further, any attempt to assert such a claim is considered an abuse of process, forfeiting whatever intellectual property case they might have had and simultaneously opening themselves to countersuit. They cannot prevent anyone from extracting the underlying public domain material for their own use, or for undoing whatever transformative process made the work original in order to access the public domain material. Cases like Bridgeman v. Corel have been brought several times since with the exact same outcome, as in Meshwerks v. Toyota (2008), which found again that “reproductions do nothing more than accurately convey the underlying image” and are ineligible for copyright.

This is for the US copyright law, elsewhere may vary. Canada is more or less the same with regard to creativity (see Tele-Direct v. American Business Information (1997)). From my little familiarity with EU law, I know that whatever their objective for copyright is, it doesn’t make a great deal of sense and isn’t at all consistent. I wouldn’t be surprised if labor is considered there, even if it isn’t transformative, particularly if such a ruling would be protectionist to a member country.

As for what is transformative, the bar is rather high. Bugs alone may deter copying but are not transformative enough to qualify for protection. That’s doubly true if the bug is blurred or blacked-out in the copy. But really, you stop caring so much about your films being “stolen” when you accept that they were never yours to steal. Rohauer didn’t give a damn about film beyond his ability to monetize and litigate it. Don’t be Rohauer. If you want to get into releasing silent films, get into it because you want to release silent films, and don’t expect to make a dime.

The Cost of High Living (Vitagraph, 1916)

The Cost of High Living (Vitagraph, 1916)
Directed by William Wolbert
Starring William Duncan

Jack (William Duncan) is in college on an economics degree. He evidently isn’t studying too hard since he’s blown all his cash going out with his friends, singing college songs badly out of tune. He writes to his father for more. It’s the high cost of living, he says, but dear old dad knows it’s really the cost of high living.

Dad writes to Jack’s sister Grace (Corinne Griffith), who lives near the college, and tells her it’s high time Jack settled down. Introduce him to some girl, he says. Corinne calls up her friend Helen (Carmen Phillips) and invites Jack over. He ditches the instant he figures out what’s up to go party with his friends.

At the restaurant, after downing bottle after bottle of liquor, they get to singing. One of Jack’s friends, infuriated that Jack’s ruining their harmony, rips up the tablecloth and wraps it around Jack’s head. “Help — help!” he cries. The new cop on the beat hears the commotion and comes to investigate. Too inebriated to deal with the law, the gang scatters. Jack ducks into a swanky mansion. “Are you the new butler?”

He is now. The cop is still prowling around outside, precluding any escape for our unmusical drunkard. Jack’s not a very good butler, what with spilling the food tray, trampling on feet, and openly flirting with his employer’s attractive daughter. The cook (Anne Schaefer) is sweet on the new cop and invites him into the kitchen. A brief but spirited tussle ensues when he spots Jack. Grace, who’s come to visit her friend Helen — for, of course, Jack had to duck into Helen’s house — intervenes: Jack is there for some real-world experience in his study of kitchen economies. That’s pretty much the end, but it doesn’t seem like Jack will flee from Helen this time.

Another boozy Vitagraph short, but unlike Bingles Mends the Clock, it doesn’t try to mine comedy from child abuse. Jack singing off-key when in his cups is rather less off-putting. The humor certainly goes down easier.

Duncan had been a contract player at Selig and featured in quite a few western shorts before making the move to Vitagraph. The Cost of High Living comes from his somewhat awkward transitory period before A Fight for Millions established him as a serial superstar. In the long run, that really worked against him as the serial format shifted away from serious drama and more into kiddy fare in the late ‘20s and into the talkie era. It was character roles of diminishing prominence for Duncan from then on out.

It may be from an awkward period — it certainly isn’t the William Duncan you’re used to seeing and he’s not wholly suited to comedic acting — but The Cost of High Living is funny enough.

My rating: I like it.

 

Pioneer Trails has been available online for a couple weeks. The Blu-Ray and DVD are now available on Amazon. We’ll sell the DVD directly at some indefinite future date, but if you want a Blu-Ray, go ahead and get it from Amazon — we probably won’t ever sell it. The smallest number of Blu-Rays I can economically have made is 25, and like I was telling someone about the Juggernaut disc, I’ll probably still be working through those 25 for the next five years. Outside of collectors, DVD as a medium is dying fast and Blu-Ray never even lived. We don’t move much physical inventory anymore. DVD is a lot cheaper and I can get smaller quantifies, so we’ll probably only ever stock Pioneer Trails on that. We usually keep five discs on hand, although the recent J. Warren Kerrigan set sold better than was anticipated and I had to get another ten to keep pace with orders.

What’s the next video out? I don’t know — it will be an HD remaster of something. What’s on the horizon, though, is something I announced, like, five years ago, but then we switched to HD and my old source wasn’t good enough. It’s coming straight from 35mm now. On an entirely, entirely unrelated note, I pulled a magic lantern slide out of my collection. This one shows the construction of a building in Boston in 1914 and there’s nothing at all phantasic about it:

Bingles Mends the Clock (Vitagraph, 1913)

Bingles Mends the Clock (Vitagraph, 1913)
Directed by Fred Thompson
Starring James Lackaye and Flora Finch

It’s never a good sign when you’re uncertain whether a film is meant to be a comedy, but I’m assured that’s what this is.

Martha (Flora Finch) notices the clock has stopped and tells her husband Bingles (James Lackaye) to have it repaired. The clockmaker says it will cost five dollars. Outrageous, Bingles exclaims. He’ll fix it himself.

He shoos his wife and children out of the living room so he can work on the clock in peace, but then finds he’s out of machine oil. He heads to the hardware store for some lubricant, but on the road meets some friends (one of them is Harry T. Morey) and decides to get some lubricant for himself. Back at home, drunk as a skunk, he picks a fight with Martha and beats his children.

“There, I’ve saved five dollars!” Bingles cries, throwing open the door — but there’s no one there to hear. Martha’s note says it all: “You have been drinking. I am going to mother’s never to return. It will be useless to follow.” Bingles looks up to see the clock’s hands spinning backwards.

Moving Picture World’s review said Bingles Mends the Clock was “a dull offering” “in poor taste” with “very little laughter”, and I have to agree. This was an all-around bad idea for a film.

My rating: I don’t like it.

You know what I do like? The Women Film Pioneers Project. As a film collector, you get pretty jaded. There was a bit in one of the Metropolis documentaries about the difficulty those that discovered the complete film in Argentina had of getting the Murnau-Stiftung to acknowledge them, but as any collector would tell you, that’s par for the course. If a film is proclaimed lost, then it is, now and forever. Should you have a copy of it, expect to be ignored, and if you should have the fortune of someone listening to you and even watching it, you might perhaps garner a few comments, but then the film will continue to be lost — even to those that just saw it. It gets to the point that you don’t even bother anymore. It’s so refreshing to find people who actually care, and the WFPP does. I think all the Flora Finch films they have marked “PC” (private collection) are mine.