“A Walk in the Sun” – A Question of Copyright (Revised)
Posted June 18, 2012on:
A week doesn’t go by that I’m not asked that question. The answer is “yes,” but it’s still protected by copyright…
Before the New Copyright Act of 1976, an author was granted an initial 28 year term of copyright protection, with an additional 28 years upon proper renewal. If a movie wasn’t renewed during its first term of copyright, it went into the public domain.
However, under well-established copyright law, the distribution, sale, and exploitation of a motion picture which has no valid copyright, but derived from a copyrighted novel, play, musical composition, etc., infringes the copyright in and to that underlying copyright.
As a kid in the 1950s I collected 8mm and 16mm movies. Most were purchased from Blackhawk Films, which specialized primarily in silent-era films that had fallen into the public domain. In the 1960s, other companies began following the Blackhawk model of selling “PD” movies, and now included the sound era. Many of these films had owners who derived their livelihood from, them. (In those days broadcast television was virtually the only outlet for old pictures, but the film “syndication” business was very lucrative because virtually every station aired at least some movies, and the number available was finite.)
Adrian Weiss, a producer-distributor, and member of a pioneering motion picture family, had a large library of films, many of which were in the public domain. He told me that before the mid 1960s, the established distributors of films to TV were “gentlemen,” and they respected ownership rights, regardless of the lack of enforceable copyrights.
The first time I recall an issue about the use of movies in the public domain was in the late 1960s/early 1970s, when someone at a PBS station realized that the copyright to Frank Capra’s “It’s a Wonderful Life” (Liberty-RKO/1946) was not renewed. Soon after, the Christmas perennial started receiving wide exposure on PBS stations throughout the country during December “pledge nights.” The movie’s owner of record, National Telefilm Associates (NTA), protested, and eventually PBS backed down.
At the same time entrepreneurs realized they could make copies of public domain movies on 8mm and 16mm and sell them to collectors, broadcast TV, cable stations that proliferated in the 1970s, and so on. The exploitation of public domain films built up steam, and the practice continues to this day, particularly on the Internet. In 1992, NTA, then known as Republic Pictures, took an aggressive enforcement stance against sellers of the film, and had a great deal of success stopping infringers. Paramount is the present owner of Republic Pictures, and therefore “It’s a Wonderful Life.”
In the early days of Kit Parker Films I could only afford to buy public domain films for my rental library. One was “A Walk in the Sun” (Superior-20th Century-Fox). In 1975 I received a cease and desist letter from John Ettlinger, President of Medallion TV Enterprises, claiming he owned the movie and I was violating copyrights controlled by him. I told him that the movie was in the public domain. He responded that it was a moot point because he also controlled the exclusive motion picture rights to the copyrighted novel in which the movie is based, along with the copyrights to the musical compositions (which played throughout well over half the movie). His logic was it was impossible to show the movie without violating the copyrights to both the novel and music. I argued with him, but ultimately relented, and paid him a royalty in order to keep the film in my library. A couple of years later, when I got over my self-righteousness, I realized he was correct, and my position that he was wrong was just wishful thinking.
When VHS tapes came out there was a proliferation of companies selling public domain movies. By and large, the individuals involved in this business had little or no knowledge of the intricacies of Copyright Law, and saw movies as strictly a commodity – no different than a pair of shoes — and, of particular concern to me, didn’t care at all about picture and sound quality.
John Ettlinger was very aggressive in stopping infringers. He had deep pockets (told me he was an heir to the Hertz fortune), and did not hesitate filing lawsuits against what he called “bottom feeders.” He was able to extract back-royalties, and those that made the mistake of fighting him ended up paying back royalties and legal fees.
In the early 1990s, Ettlinger passed away, his library was sold, and later changed hands a few times. When DVD’s came out, a company unaware of Ettlinger’s previous legal and financial victories, released “A Walk in the Sun.” When no lawsuits materialized many other “bottom feeders” followed. Unlike Ettlinger, the new owners of the Medallion library did not have the wherewithal to effectively fight off violators, so enforcement of the underlying rights to the movie was only lackluster. (Ironically, although Ettlinger held the torch for the rights of literary authors when it suited his purpose, but fought against them when it came to paying residuals.)
Although ignorance of the law is no excuse, my goal is usually not to punish those who unknowingly violate my properties that are protected by copyright, but to simply get them to stop. To those that cooperate (most do), I return the favor. Those that don’t, I don’t.
Sometimes I receive responses telling me the film is in the public domain, and any facts I offer to the contrary are bogus. I ask them if they are so sure, why aren’t they selling “It’s a Wonderful Life”?
I’m often asked to prove my claim by sending all of the documentation going back to the original Bronston deal. I tell them the matter, and the documents related thereto, are part of the public record at the Copyright Office in WashingtonDC, and for them to hire a professional, or go there. After that, some tell me where to go.
By the way, www.copyrightoffice.gov can be helpful, but it is not infallible.
Here is some background on how “A Walk in the Sun” came to be in the first place:
In 1943 Knopf Publishers made a deal with a U.S. Army Sergeant, Harry McNab Brown, to write a novel titled “A Walk in the Sun,” which was published the following year to critical acclaim. Brown was an exceptional writer of fiction, which is how he was able to make a deal on an as yet unwritten book. Producer Samuel Bronston’s Comstock Productions, purchased all motion picture rights to the novel from Brown, with a plan of having it directed by Lewis Milestone, and released through United Artists. Bronston fell into financial difficulties.
Milestone’s Superior Productions, took the project over, produced the movie, and granted 20th Century-Fox a seven-year distribution deal. Still, the movie was foreclosed on by the Walter E. Heller Co./Ideal Factoring Co., major financers of “A Walk in the Sun,” and countless other movies. Heller retained Medallion TV Enterprises as its sales agent. Later on, Medallion bought all of Heller’s rights. I purchased the entire Medallion library, including “A Walk in the Sun,” in 2008, and continue to take an aggressive stance against those who infringe any of the copyrights owned or controlled by me.
I licensed The Sprocket Vault the exclusive DVD rights to “A Walk in the Sun.” Their version is un-cut, restored from original film elements, and features a great interview with Norman Lloyd (Private Archimbeau in the film), and “The Men of ‘A Walk in the Sun’,” a documentary produced by Joel Blumberg.
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