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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 copyright, 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 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 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.



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