An interesting account of the creation of copyrights for films

Copyright dupes: piracy and new media in Edison v. Lubin (1903)

Peter Decherney

The article is based on several important court cases, especially Edison v. Lubin (1903), that helped to map out the origins of copyrights for films in the United States. The history of copyrights for films originated from the copyrights for photography that previously existed in the United States and eventually were distinguised as a separate set of law based on the difference between the two media formats.

"The answers to these questions grew out of philosophical positions about how to shape the future of art, business, and society through new media. It generally falls to courts, however, to make sweeping decision about new technology before society, philosophers, or Congress have a chance to explain them. In piracy cases, courts are periodically faced with a difficult decision: do existing laws account for the technology before them or does Congress need to devise a new set of regulations for a new medium? Court rulings on this question always change the development of the medium at hand. Where legal histories tend to end with the handing down of decisions [End Page 109] or statutes, I will look at the impact of the law as well as its creation. The pronouncements of judges and Congress frequently have unintended results, and they are always only one piece of a complex formula that steers the development of new media in one direction or another. It is in the interaction of law, public discourse, and business practices that we can see how piracy debates define and shape new media."

It is ironic that the creation of the film industry hinged upon "duping", or what today could be understood as the act of directly violating the most basic copyrights attached to a film by making a copy of that film and distributing it or screening it for profit without the permission of the author of the film (or paying any of the revenue generated to the author of the film).

"Edison v. Lubin is a fascinating example of what happens when courts try to explain a new medium using the terms of an old one: their decisions are ineffectual and generally delay true grappling with the newness of the new medium. Piracy is an integral element in the development of new media; ⁴⁵ it reveals the new functions and dimension of the new medium. Courts are left with the difficult job of separating the innovations revealed by piracy from the theft facilitated by piracy. But forcing new media to labor exclusively under the rules of old media inevitably fails. In 1903, film piracy clearly challenged both social norms and established business practices. This was a sign not that norms and businesses needed greater protection but rather that they needed to be updated. Of course it is much easier to make this assessment in hindsight. But it also provides an important lesson for thinking about new media. Which forms of piracy today will be tomorrow’s norms? Which of today’s pirates will be tomorrow’s media moguls?"


http://muse.jhu.edu/journals/film_history/v019/19.2decherney.html