Substantially Similar--A Blog on IP Issues, Writing and Film
John T. Aquino, Attorney and Author
 Call us: 240-997-5648
HomeOverviewAttorneyAuthorBooks and ArticlesTruth and Lives on Film
ReviewsSaints for LawyersBlog--Substantially SimilarFiction

Substantially Similar--A Blog on IP Issues, Writing and Film

Copyright, Public Domain and Fictionalization in Films, All Together Now

by John Aquino on 04/19/18

I saw a film recently that seemed to bring together topics I've blogged about here before--fictionalization in fact-based films, the history of copyrght, and use of public domain films by filmmakers. 

The film is Till The Clouds Roll By, a 1946 M-G-M biography of the musical theatre composer Jerome Kern. He sold the studio the rights to his life story, was around during filming, but died before it was released. The Arthur Freed unit at M-G-M made the film a compendium of Kern's songs, wrapping his story around production numbers featuring many of the studio's top stars--Judy Garland, Frank Sinatra, June Allyson, Van Johnson, Kathryn Grayson, Lena Horne, and Tony Martin.

The film also illustrates what can happen to an individual's life story when it is put on film. Kern wrote memorable songs, the music for one classic of the musical theatre--Show Boat, and songs for at least three classic film musicals--Swing Time, You Were Never Lovelier, and Cover Girl. But, as Kern warned Arthur Freed when he sold M-G-M the rights to his life story, his life was otherwise unmemorable. His first song was placed in a professional production when he was just 20, his one marriage lasted 35 years until his death, he and his wife had one child, he liked to collect rare books and bet on the horses, and, while some his songs and shows were unsuccessful, neither his career nor personal life ever suffered any real crisis moments. 

Faced with this situation, those responsible for the screenplay for TTCRB--Guy Bolton, George Wells, Myles Connolly, and and Jean Holloway--delved into the minute facts of Kern's life. They produced a story that shows the early trials of Kern's life as he struggles for recognition for his music. He is befriended by a composer,  James Hessler, and his daughter Sally. Hessler sacrifices his dreams of writing a symphony to orchestrate Kern's songs. While in England working on a show, Kern meets a British lady named Eva, and they marry. Back in the U.S., he finally obtains success,  but Sally has grown up spoiled and breaks her father's heart by her selfishness. She leaves home, Hessler dies, Kern searches for Sally for years, and when he finally finds her she has learned her lesson. The film ends with a musical tribute to Kern's work. 

The thing is, almost all of what is in the preceding paragraph didn't happen. Kern did marry Eva when he was 24, but their daughter isn't mentioned to make room for Sally's sorry. The Hesslers didn't exist. Bolton, who wrote the basic story for the movie, made them up to give the film some conflict. Hessler's character may have been suggested by a friend of Kern's, but evidently the unfinished symphony and Sally and her selfishness were completely fictitious.

The situation is reminiscent of that of the baseball player Warren Spahn who, except for his baseball career and combat experience in World War Two, led a quiet, unexceptional life. A former newsman was commissioned to write a biography of Spahn for young readers. Stymied by Spahn's quiet life, he did was some old-time journalists used to do--he made things up, saying that Spahn won the Bronze Star, which he hadn't, and saved his company, which also didn't happen. Spahn was embarrassed and worried that people would think he had made these statements. He couldn't successfully sue for libel because libel is a false statement that is derogatory (hurts one's reputation). Claiming someone did heroic acts in the war doesn't hurt his or her reputation, it enhances it, however falsely. And so, because Spahn's injury was rooted in his embarrassment, he sued for false light invasion of privacy, and the New York court's decision is a landmark in this area of the law.

What happened to Kern's story and Spahn's is what screenwriters of film biographies and other films based on history have often done--resort to set character models and cliches at the expense of the facts. What is the difference between Kern's situation and that of people like Spahn? Kern gave his permission to his life story being filmed and allowed the script to go forward. And the falsifications didn't injure his reputation. The injury is to the truth. On the International Movie Database (IMDB), people who have commented how moved they were by the Hessler's story, believing it to be true.

TTCRB is also useful to illustrate the history of copyright. When it was made, TTCRB was subject to the Copyright Act of 1908 which gave a registered work a copyright term of 28 years which could be renewed for a second term of the same length. Among other requirements were that the work carry a copyright notice. The Copyright Act of 1976 does not requirement either registration or a copyright notice and the term initially was the life of the author plus 50 years or, in the case of a corporate work 75 years (which were later extended to 75 years and 95 years, respectively). But this didn't affect TTCRB's situation because it was subject to the earlier version of the law. By 1973, when the copyright for TTCRB was up for renewal, M-G-M was in upheaval. It had gone through a number of corporate changes, and the latest management was interested in turning the focus of the company from films to real estate. In all of this transition, no one renewed the copyright, and the film fell into the public domain. This allowed anyone--television stations, civic groups, anyone--to show the film without having to pay a fee or obtain permission. It also resulted in the companies who had no access to the original prints being able to release inexpensive, inferior videos by using copies of copies, which is the case of most public domain feature films.

TTCRB also touches on another topic about which I wrote--the availability of public domain films feature or documentary filmmakers to use in their films. However, films like TTCRB provide special difficulties for these filmmakers. The film itself is no longer protected by copyright. But, as noted, the movie is a compendium of songs for which Kern wrote the music. Works published prior to 1922 are in the public domain. A few of the songs in the movie were written before 1922, but the more famous ones were not. Performance of these later songs in a film for commercial use would likely violate the copyright of those songs. Attention must be paid, as Arthur Miller wrote.

Copyright 2018 by John T. Aquino. This article is intended for educational purposes and does not constitute legal advice.

The Death of a Mother Part Three: A Tale of Two Cemeteries

by John Aquino on 04/12/18

This is a tale of two burials and two different cemeteries.

My father died in 1968 and was buried at what we'll call Cemetery A. As the family has grown, married and moved away, it is a cemetery that has been difficult for us to visit. My wife’s parents, who moved from Long Island to live with us, are buried at Cemetery B. One of my brothers died in 2015, was cremated, and his cremains given to my wife and me by his children to bury with my mother when she passed. My mother became very ill at the age of 101 in February 2016, and we were advised to call a priest to administer last rites. We contacted Cemetery A with the expectation of burying my mother with my father there. We mentioned my brother’s cremains and the representative said, “Oh, that will cost you $250 to place them in your mother’s casket.” After further family discussion, we concluded it might be better to bury my mother with my brother’s cremains at Cemetery B, which we visit frequently, and later move my father to Cemetery B. We contacted Cemetery A about this and were told there would be no problem.

We discussed the plan with family members and received their approval. We then went to Cemetery B and discussed the plan with a young man there. He told us we had to buy a second lot for my father at a cost of $1,750 because there was a limit of two individuals per plot and my mother and brother counted as two. I said that we had received a different impression from Cemetery B. He talked to the manager there who supported his conclusion. I then called and called and worked my way up the chain of command. The last man I talked to insisted that the two-person limit was unchangeable. I noted that the lady at Cemetery A said that placing my brother’s cremains in my mother’s casket would only cost $250. He said, “Oh, that occurs when people surprise us at the burial with cremains and at that point we charge them $250 as a recordation fee.” I said, “So, if I just surprised you with the cremains at the burial it would cost $250 but because I told you up front it will cost $1,750. And he said, “That’s about it.”

The young man signed us up for two lots. We drove around Cemetery B and found two lots on a hill where they would catch the sunset in the morning. We made sure they would accommodate a headstone, which we intended to move from Cemetery A, acknowledging that both cemeteries had told us that Cemetery B had to okay the headstone. We took out our checkbook, but the young man said we didn’t have to put money down. To our happy surprise, my mother got better. A month later, I called the young man and said my mother could continue on or could go at any time. He said, “Don’t worry. You have these sites! They are yours!”

My mother suffered another steep decline in mid-April 2017, and we were told she would last only a few days. My wife and I drove to Cemetery B the next day with the paperwork the young man had given us the year before. We found out he no longer worked there. The new young man whom we met told us that the two sites we had been told were ours had been sold because the first young man had written nothing down to hold the lots for us. Showing the paperwork the first young man had given us, I askedhe second one, “How could this have happened?” The new young man volunteered that it was not a surprise because his predecessor had made many similar mistakes and lapses. The new young man drove us around, and none of the sites he showed us would allow us to move the headstone from Cemetery A. With my mother likely to go to the Lord soon, we were forced to pick the best two lots available, which were not on a hill and were closer to the rear fence than we would have liked. And so, rather than utilizing the headstone we owned that would cost us just $250 to move, we were required to buy a flat monument for a cost of $3,500.

My mother passed away, and the burial at Cemetery B was done professionally, and everyone was very nice. As my mother’s personal representative/executor, I spent the summer getting her estate in order and selling her house. Once we sold the house, we had the money in the estate to move my father to Cemetery B. We met with Cemetery B, and I brought my letter of administration as personal representative for the estate from the D.C. superior court. We were told that there wasn’t much they could do until the D.C. government granted a disinterment permit, which I was the only one who could secure because I was the petitioner. They helped me fill out the petition form,and the cemetery director signed it. The next day, I went to the appropriate D.C. government office, took a number, and waited two hours. When my number was called, I walked to the cage, presented the petition plus my letter of administration, and the lady said, “I can’t accept the petition because it’s hand written. All submissions must be typed.” I said that the cemetery had helped me fill out the form, and she said, “They should have known better!” She told me to sit down and she would get the registrar to explain to me how disinterments are done in the District of Columbia. After two more hours of waiting, I had to go and retrieved my paperwork from the clerk.

My brother called Cemetery A, described my wasted day and asked if the staff there could submit the form. He was told yes, but it would cost us $200. It took a week before someone from Cemetery A went down to the D.C. government office. We then received an email from Cemetery A informing us that the D.C. government said the form had to be submitted by email. The logical response is that if Cemetery A didn’t know how disinterments are handled in the District of Columbia they should have called and found out before imposing on me and wasting two weeks in the process. The petition was finally submitted and ultimately approved. But the delay pushed the disinterment and reburial into winter.

The disinterment and reburial were finally scheduled for January. My brother and I went to Cemetery A at 10 on an extremely cold morning, I signed the paperwork and paid the bill. We went to Cemetery B where we met my wife. Everything finally went flawlessly, and my father now rests next to my mother and brother.

Copyright 2018 by John T. Aquino

The Death of a Mother Part Two: Cleaning and Selling the House

by John Aquino on 04/12/18

My mother's house was her largest asset. After she died, we spent four months cleaning it out; it sold in one day. 

First, we had to dispose of my Mom and Dad's furniture. With five children to raise and send to school, they had settled for serviceable furniture, nothing fancy. I was my mother' executor. My wife and I invited my siblings and their families and other relatives to come and see if there was anything they wanted. For what ultimately remained, I opted to donate it to charitable organizations. 

I learned that the Salvation Army isn't the organization from the stage musical Guys and Dolls or the movies. My previous contact with the group had been with these portrayals and various individuals in Santa Claus suits ringing a bell in front of a large bucket. The earliest pickup appointment we could get was three weeks away, and when the two finally men came, they walked around, noticed a scratch on the dining room table and the china cabinet and said they could only accept furniture that was "show-room ready." I thought from their ads they were donating furniture to the needy, and here they were wanting unused furniture to sell in their show rooms. I told them they should send out an inspection team first and not make us wait weeks to be rejected. I was so upset at the wasted time I ordered them out. We ultimately found a nonprofit named Community Forklift that took everything--although they had a no-stairs policy so we had to rely on myself, my brother and one of my late brother's sons to haul the beds and dressers downstairs. Other items--bags and bags of clothes and popular novels--went to Northwest Children's Outreach Donations, which had an easy access drop-off.

Second, we learned that no one would take Mom's hospital bed--which was electric and had cost several thousand dollars--presumably for fear of contagion, even though she had no contagious disease. One of our contractors needed one for his mother, so it worked out. 

Third, my Dad, an attorney, and my Mom, an English teacher had amassed a mass of books, for their own careers and for their children's learning. We had family members go through them. From what was left, we thought that we would donate literary novels and nonfictions to libraries and try to sell books Mom and Dad really prized. My Dad purchased the Book of the Year every year from 1951 to his death in 1968 and the Book of Knowledge annuals for the same period. He bought an Encyclopedia Britannia that all of his children used as THE resource through high school. No one wanted the two annuals, so they went to the Montgomery County (Md.) Friends of the Library. The Encyclopedia, which was copyrighted 1937, before a polio vaccine was discovered and the internet was invented, went to the landfill. My Dad collected books about Presidents Lincoln and Kennedy and World War Two, as well as religious books about and by St. Thomas Aquinas and my Mom did the same for books by and about Thomas Merton. We brought some to a number of used book stores, none of which wanted them. Second Story Books in Washington, D.C. told me the problem was they were all hardbacks and that it is hard to sell hardbacks today. I actually thought that hardbacks, being more durable, were the better buy. Maybe, with the internet, no one buys books. The Kennedy, Lincoln and World War Two Books went to the Friends of the Library, and the religious books to the Washington Retreat House run by the Franciscan Sisters of Atonement.

Fourth, having dealt with the big things, dealing with the family things pulls you into a bubble between past and present, remembering the past and knowing what will happen. My Mom saved every bill she received after my Dad died 47 years ago, and we had to go through them one by one because sometimes letters and stock certificates were mixed in. My Dad saved every tooth each of his five children lost and every spelling test, along with first and second pairs of shoes. Outside of making a necklace of them, there was nothing to be done with the teeth. The spelling tests, the valentines, the birthday cards, aside from one or two, all had to go. Dad and Mom felt the promise for each of us so strongly. Much of it was fulfilled, but with sadness and heartache and right turns when we should have turned left, and also a few miracles, such as medical innovations that the 1937 Encyclopedia didn't mention. And we pray for more medical miracles to come.

The Death of a Mother Part One: A Series of Goodbyes

by John Aquino on 04/12/18

My Mom died on April 20, 2017, a little over a year ago, at the age of 102, her passing coming after several years in which she couldn't speak except for a few words. We had 24/7 caregivers for her, and she was also part of home hospice.

I think I can pinpoint the last time she seemed to know who I was. It was about eight months before the end. Up to then, she would eat and drink but really not respond to conversation. But on that day in August, I left work at 4, took the 45 minute trip by train from Crystal City, Virginia and walked the 10 minutes to her home in Tenleytown, Washington, D.C. Washington is traditionally hot in August, and I was sweating when I entered her house. I said hello to her caregiver Christina, and knelt in from of the hospital bed in Mom's living room where she was lying. "Mom," I said, "I'm sorry. I'm sweating, and I don't want to get you wet." She looked up at me and smiled. For the first time in months, she smiled and recognized me. She looked up at me, reached for my face and wiped my sweating brow as she had when I was a boy. It was, I think, the last time she recognized me, the last time I saw her smile, and the last time she was really herself. It was the first goodbye.

After that, except for one or two times--with prompting on Christmas Day she was able to say, "Merry Christmas"--we would visit, talk to her, sit with he and watch tv with her or sit in silence and hold her hand , and she wouldn't respond or even acknowledge we were there. The Monday after Easter, her caregivers told us it would be a matter of days. Christiana called us at 1 a.m. on Easter Thursday to say Mom wasn't breathing. Mom had a DNR (do not resuscitate). We told Christiana not to call 911 but to phone hospice. We then left and drove the generally empty streets, deep in our own thoughts.

The second goodbye was the long goodbye. When we arrived at the house around 1:30 a.m., the door was open. Mom was lying on the hospital bed, covered up to her neck by the coverlet, very still. We knelt and took turns kissing her. When we stood up, I asked Christina when hospice was coming. I had thought they would already be there, establishing time of death. She said she couldn't get through. I went into the dining room to call, and the phone rang and rang until, after 20 rings, it went into voicemail that said our call was important to them and that the next available operator would pick up soon. Elevator music began to play. How many people are calling and queuing up at 1:30 a.m.? And having hospice involved was supposed to make it easy. I hung up, called again and the same thing happened. I let the music play, and after five minutes the call disconnected. Obviously, something was wrong. I called the Virginia office, which answered, and they called the D.C. office and couldn't get through. I suggested that my wife and Christina get some sleep. I called the D.C. hospice number every 15 minutes. Finally, at 5:30, someone picked up. I explained to her what was happening, and she apologized profusely, explaining that their phones had been out all evening. She said someone from hospice would be there in 20 minutes. While we waited, I went back into the living room,, knelt by the hospital bed, prayed, kissed Mom, and ended the second goodbye.

The man from hospice declared the cause of death as 5:30 a.m., even though she had passed away four and a half hours earlier. He said that was the protocol. He asked me questions, called the D.C. medical examiner, gave the information, and told the examiner the cause of death as Alzheimer's Disease. I said, "No, she was never diagnosed with Alzheimer's, only the dementia that happens when you are 102." But he shook his head, indicating that that too was the protocol, making me think that this was inflating the figures for Alzheimer's. He called the funeral home, which in a hour removed her body from her home. 

There followed meetings with the funeral home and the cemetery staffs, the wake, and the funeral, with relatives and friends coming from Georgia, Kentucky, Texas, Florida, Virginia and Ohio. That was the third goodbye, a shared goodbye with loved ones. Things happened with the burial process, of which I'll write more later. I've already posted the eulogy I delivered at the funeral mass.

Then we had to clean out and sell the house, of which I will write more later.

The house sold in September. I turned over all of my keys. I took them one by one from my very crowded key chain--the front door key that Mom always reminded me turned left to open, the key to the second lock that we installed in the front when Mom began to wander, the back porch key, the key to the basement entrance, and the garage key. When I was done, I had just one key left, and it was the one to our own house. A few weeks later, I drove down my mother's street and passed what had been her house. The new owners hadn't moved in, and from the street it looked like the place was still empty. I got out of the car and started to walk to the front door. And then I realized that for the first time since I was six years old, I couldn't go in. As I walked away, I realized that that was the last goodbye.

Copyright 2018 by John T. Aquino

Reading Histories and Biographies Part Two: Film Biographies

by John Aquino on 04/07/18

I am especially very fond of reading biographies of those who work in film and the theatre. Here the frequent difficulty of the biographer is balancing coverage of the life and work. And, since Hollywood employed press agents who floated false stories about a studio's stars, some biographies have been prone to pick up the hype and the rumors.

Years ago, I tried to write a biographical/film analysis piece on spec for Films in Review on the actor Jack Palance. Palance had been a boxer, served in the Air Force, and worked in coal minds before he became an actor. He is best known now for Shane (1953) and City Slickers (1991), for which he won the Academy Award. In the piece, I dutifully picked up what I had read in Current Biography that his battered face was the result of burns he suffered when bailing out of a burning B-42 Liberator bomber during World War Two and his subsequent reconstructive surgery. I sent the piece to Palance's agent and asked for an interview. I didn't get an interview, and the piece was never published. But I did get a typed note from Palance that read, "You [knucklehead], if I had plastic surgery, don't you think they'd have done a better job!" The story was probably made up by a studio press agent, Palance's face was likely the result of boxing and other factors, and, by the way, he didn't say knucklehead.

More recent film biographies have employed more extensive research, with mixed results.

Richard Zoglin's 2014 biography of the actor and comedian Bob Hope, titled Hope: Entertainer of the Century (2014), has as its unique focus the numerous affairs of this man publicly known as a devoted husband, family man, and selfless entertainer of U.S. troops. Zoglin also dutifully discusses Hope's television shows and the movies, but he makes any critical analysis brief. 

James Kaplan's 2016 Sinatra: The Chairman is the author's second part of his two-part biography of the singer and movie star Frank Sinatra. Part One, Frank: The Voice (2011), covered his life from his birth in 1915 to his winning the Academy Award in 1954. The Chairman runs from 1954 to Sinatra's death in 1998. Kaplan provides incredible detail on Sinatra's recording sessions and on his love affairs. He also offers critical analysis of each film, but usually in a paragraph or less. An additional problem is, having spent 800 pages discussing the first 39 years of his life, Kaplan spends 850 pages on Sinatra's life from 1954 to 1971 when he retired, and only 140 pages on his life from his comeback in 1973 to his 1998 death. Kaplan's explanation is that Sinatra's recording output shrank during these years, his number of affairs shriveled, and, as an actor, he made just two movies. It was, he said, a different life. But, especially because of the heft of both books, which sometimes cover periods of Sinatra's life day by day or week by week, the cursory treatment of the last 22 years of Sinatra's life stands out and indicates a feeling that Sinatra's touring, singing concerts with the same songs in the same way, wasn't worry of serious consideration.

Conversely, in John Wayne: The Life and Legend (2015), Scott Eyman spends just 101 pages on Wayne's life from his birth in 1907 through his early film career to his breakout role in Stagecoach (1939); 250 pages on the years from 1940 to 1961 when his film career was at its highest, and 200 pages from 1961  to Wayne's death in 1979, during which time Eyman knew Wayne. The last part is the most detailed. The author also relied on interviews with those who worked with Wayne or their children. But there were clearly fewer people around who remembered the earlier films. The description of these films is spotty and the analysis perfunctory, with many of them (such as 'Neath the Arizona Skies) not mentioned. However, for  the films of the middle and later periods, the descriptions and analyses are lengthier and very detailed, especially for the more famous films.

Cynthia Brideson and Sara Brideson's biography of the actor, singer, and dancer Gene Kelly--He's Got Rhythm: The Life and Career of Gene Kelly (2017) is dutiful in covering both his life and work, but its analysis of his films is brief and superficial, often relying on box office performances or critics' reviews to indicate whether or not a film was successful. And Kelly's films have been addressed in many other books, including biographies and autobiographies or his co-stars and books on the Hollywood musical.

Marc Eliot's Charlton Heston: The Last Icon (2017) has the disadvantage of following the film and stage actor's own autobiography and his published diaries. It generally adds little to what Heston himself wrote, and its film analysis is very cursory, sometimes limited to a reporting of box office receipts. I even wondered if he had seen some of Heston's films (or seen them recently) because he sometimes gets the plots wrong. For example, he writes that The War Lord (1965), which was one of my favorite films from my youth, dealing with the Medieval custom of  droit du seigneur, ends with the Norman duke dying in the arms of the young woman he has taken from her husband and with whom he has fallen in love. The movie really ends with the wounded duke leaving the woman behind and riding to find his king and ask for forgiveness. Eliot states that in the 1968 film Counterpoint, Heston's co-star Maximilian Schell, who plays a Nazi officer, repeats his performance of a Nazi from the 1961 film Judgment at Nuremberg. However, Schell didn't play a Nazi in the earlier film but rather an attorney for a judge accused of Nazi war crimes. 

What Eliot does give the reader is a reporting of the portion of Heston's life that he didn't write about, the period from 1995 to his death in 2008, during which he became president of the National Rifle Association and was diagnosed with Alzheimer's Disease. Eliot describes how Heston was the first chairman of the American Film Institute from 1971 to 1982 and lent his gravitas to this new film association. But, according to Eliot,  Heston never received the AFI's Life Achievement Award because the association's more liberal members could not bring themselves to approve an award to a man of conservative politics and who was a spokesman for the NRA from 1998 to 2003. This was in spite of the fact that Heston was a creator of the AFI and that it probably wouldn't have existed without his efforts.. If for no other reason, Eliot's book deserves to be read for its ending.

Copyright 2018 by John T. Aquino