29
Mar
2020

Some Adventures in the Origins of Motion Picture Copyright

I’ve always enjoyed movies, but I’ve never been particularly a movie buff, and I haven’t been particularly knowledgeable about the origins of motion pictures. However, in the past few years I’ve had a chance to become more knowledgable about them, and especially about the first 18 years of their registration at the Library of Congress (and then the Copyright Office at the Library). This has been hastened by working with Claudy Op Den Camp to help research her section in the new collection (which she also co-edited) “A History of Intellectual Property in 50 Objects.”

Book Cover

The book is wonderful and highly recommended, and but I wanted to share some of the research that didn’t make it in – especially about how the forms of registration were chosen, and some of the additional legal history of how motion pictures were finally added to the copyright law in their own category in 1912. So keep reading for more!

The first copyright registration of a motion picture was 1894’s “The Sneeze,” which lasts only a few seconds. Until 1912 motion pictures were required to be registered as “paper prints” – considered to be a single photograph deposited as a paper strip of all the frames – and the Library of Congress how holds nearly 3,000 of these paper prints. There’s a very good C-Span program about the paper prints, worth watching to learn more of the background. In 1953 the Copyright Office produced a catalog of all the motion picture copyrights that could be identified for 1894-1912.

But how exactly was this procedure chosen? It seems to have happened largely out of the blue, and not much documentation is known to exist. Even the collection of copyright registration rules for 1866-1956 I’ve assembled isn’t particularly helpful – motion pictures aren’t even mentioned until 1910. However, that isn’t necessarily unusual, as there’s precious little documentation of procedural rules for copyright in this era.

Prior to 1870, copyrights were registered with the clerks of the local federal district courts, in accordance with the procedures set out in great detail in the 1790 and 1831 Acts, which set forth the exact language to use for the registration among other things. However, subject matter was always an amorphous question – the 1790 Act included “books, maps, and charts,” with “prints” added in 1802, but these categories were generally regarded as amorphous. Musical works were registered as books almost immediately after the 1790 Act was passed, and in 1829 in Clayton v. Stone it was clarified that even a single sheet could be a “book” for purposes of the copyright law. However, no official document ever codified these customary administrative practices, and the clerks of the District Courts simply registered copyrights as they felt best. There are some regulatory circulars which were sent from Washington regarding copyright, but these were addressed to the clerks of the courts, not the public, mostly regarding product labels being registered for copyright.

With the move of copyright registration to the Library of Congress regulations to the public appeared, as my compendium of these regulations shows. But it remains unclear how exactly these regulations were reached, beyond fiat of the Librarian of Congress. Additionally, anecdotal reports tell us that the Library of Congress was making decisions about registrability of copyrights based on substantive criteria during this time, but there was no published guide to these criteria and what would and would not be registered.

And so, in 1893, motion pictures were in their infancy, and in Thomas Edison’s workshop a photographer named W.K.L. Dickson made some of the earliest ones, to be used on the newly invented “kinetoscope” for exhibiting short movies – what we now think of as an old-fashioned peephole viewer. Photographs had been added to the copyright law in 1865, but there was no provision for registration of motion pictures for copyright per se, in terms of form or substance. It wasn’t necessarily clear they were just like photographs (or other types of works like prints) or how the deposit provisions of the copyright law could be complied with. However, the copyright records available from the Copyright Office offer some suggestions.

Card from Copyright Card Catalog showing earlier motion picture records

Registration number 2887Z is “The Sneeze,” generally considered the first known motion picture, and preserved by the copyright deposit. The Sneeze was subsequently published as a series of photos in Harper’s Weekly in March of 1894, with Edison hoping it would be a “good ad for the kinetoscope.”

But the card above indicates an even earlier record – from 1893, but called a “form.” Pulling the registration record only raises more questions.

Copyright registration 44732Y (the Y indicates 1893)

So, the registration says it’s for a “book or form,” but there were two different photos deposited at different dates, and photos wouldn’t be appropriate deposits if it was truly a book or form. What this registration implies is that a first attempt to register was made on August 16, 1893, but the Librarian or someone else at the Library of Congress refused the registration as not being acceptable deposit material or otherwise not within the scope of copyright. A second attempt was made October 6, 1893, which was accepted. The note “2 photo copies (different photos)” suggests both attempts were to register photographic versions of the deposit material. In his book The Man Who Made Movies, a biography of Dickson, Paul Spehr speculates that these were photographs taken for Dickson’s articles in Cassier’s magazine, like this one. However, he notes that others believe it was a barber shop subject published in Phonogram in October of 1892 (perhaps this refers to the handshake), or a blacksmith scene shown in Brooklyn in May of 1893 (note 439).

If I had to guess, the first attempt to deposit was likely a single frame or some other attempt to depict the film, and the Library of Congress decided to require all the frames instead. I suspect the second deposit was of multiple frames. The framing of it as a “book or form” is curious though, since for “The Sneeze” it was readily registered as a photograph.

Registration record for “The Sneeze,” January 6, 1894.

So, naturally, I tried to find this 1893 registration deposit material. I’m not the first try to try (previous references here, , but I figured since most people who’ve looked are film scholars, and my expertise is more in the actual copyright records, I might have more luck. and this post has sat in my drafts folder waiting for me to find it, to great fanfare.

But, I never did find it. I did learn a lot about where the title pages deposited for copyright under the 1870 Copyright Act went, though. Although the 1870 Act moved copyright to the Library of Congress, it didn’t actually change the procedure for getting a copyright that much otherwise. You still needed to deposit the printed title page and pay the fee before publication, you just did it at the Library of Congress. The Rare Book Room of the Library of Congress now has well over a hundred boxes of this material, and it isn’t really cataloged as I understand it, nor is it readily available to the public. They have made stabs at creating indexes and such, but their resources are thinly spread and it’s still a long way away.

The title pages for 1870-1890 are in the Rare Book Room. I’ve heard conflicting reports about where the title pages for 1890-1896 are – they might be in the Rare Book Room, they might be mostly lost, with the remainder in the Manuscript Collections of the Library. I do know that from 1897 forward the title pages are held by the Copyright Offices, which has taken stabs at indexing them itself using its summer interns. I suspect the 1893 deposit material is lurking somewhere in the Library of Congress, and when the 1870-1897 deposit material is digitized (however far in the future that is), we’ll find it.

What about the other copyright registrations listed on the above card? I found the registrations, but only got the deposit material for one other one.

The first is additional kinetoscopic registrations. There’s not much detail on what they are in the registration, and I’m not sure if they’ve been identified – let me know if they have!

Registration 10776Z from 1894 – details unknown. The note after 2 copies reads “unalike,” so likely at least 2 different films.
Registration 10777Z from 1894, not on the index card above.

It’s interesting to note that even though the two above have consecutive registration numbers, they’re over a month apart. The record books are generally pretty much direct marches through time, day by day; I’m not sure what happened there but it suggests another administrative holdup or perhaps a previous arrangement. In addition to those, there are two registrations clearly not of motion pictures – a bizarrely named Edison Phonographic Polka, and a lithograph about the kinetoscope.

Registration 20071Z from 1894.

At first I thought this might be something really interesting – a sound recording of a polka being registered as a musical composition, in spite of a general consensus that no sound recordings had been registered for federal copyright before 1972. However, I managed to pull the deposit material and it’s actually an actual musical composition – sheet music about the Edison Phonograph. It’s pretty cool, and worth checking out. There’s also some mentions online that the cornettist Jules Levy recorded a work of the same title, North American Cylinder No. 510, although it doesn’t seem to have survived.

Registration 50345Z from 1894, for a lithograph.

Finally, I’ll confess I haven’t found the above lithograph – if people are aware of it please let me know. I suspect it’s in the Library of Congress Prints and Photographs division if it still exists.

For some further reading, I’d suggest Paul Spehr’s book on WKL Dickson, mentioned above, along with Peter Decherny’s work on the subject. Dickson and his wife Antonia also wrote a book on the subject that’s worth having a look at, although it’s very much aimed at contemporary audiences.

In the end, the procedure for registering copyrights in motion pictures solidified into “paper print” registrations, as discussed above. So much more happened in the following 20 years – litigation between Edison and rivals like Siegmund Lubin, the failure to include motion pictures by name in the 1909 Copyright Act, the Supreme Court’s 1911 decision in Kalem v. Harper holding that a motion picture could infringe copyright in an underlying work (I uploaded the Supreme Court casefile for those interested), and the quick passage of the 1912 Copyright Act in response formally adding motion pictures to copyright. I had sort of wanted to do justice to all of this, but this post has grown long as is – perhaps another post! Ideally that one won’t take this long to get done. And of course once the 1893 material appears, I’ll update this, finally to great fanfare.

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