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The Motion Picture Industry After the National Film Preservation Act of 1992 and Film Disclosure Bill of 1992

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The Motion Picture Industry After the National Film Preservation Act of 1992 and Film Disclosure Bill of 1992 DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 1 Fall 1992 Article 3 Rewards Without Rights: The Motion Picture Industry After the National Film Preservation Act of 1992 and Film Disclosure Bill of 1992 Leslie A. Morse Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Leslie A. Morse, Rewards Without Rights: The Motion Picture Industry After the National Film Preservation Act of 1992 and Film Disclosure Bill of 1992, 3 DePaul J. Art, Tech. & Intell. Prop. L. 16 (1992) Available at: https://via.library.depaul.edu/jatip/vol3/iss1/3 This Legislative Updates is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Morse: Rewards Without Rights: The Motion Picture Industry After the Nat LEGISLATIVE UPDATES editing, colorization or other technical processes.7 As REWARDS WITHOUT RIGHTS: a result, Hollywood's most prominent directors and THE MOTION PICTURE screenwriters who support the labeling requirement are aligning against producers and distributors who INDUSTRY AFTER THE oppose the Disclosure Bill. This update will examine the congressional intent NATIONAL FILM underlying the National Film Preservation Act of 1992 PRESERVATION ACT OF 1992 and its effect on the present motion picture industry. A comparison will be made between the Preservation AND FILM DISCLOSURE BILL Act and the 1988 version of the same act which included a narrow labeling requirement. An examina- OF 1992 tion of the Disclosure Bill will explore the benefits and burdens of mandatory film labeling, as well as a brief analysis of the artists' rights to be protected if INTRODUCTION the legislation is enacted. Finally, the ramifications of Throughout the twentieth century, Americans the Disclosure Bill on the motion picture industry, as have watched motion pictures evolve from the silent well as the American viewing public, will be screen to the big box office, and most recently, to explored. home television viewing. As the birthplace of the moving pictures, the United States has used films to THE NATIONAL FILM PRESERVATION ACT educate, inform, chronologize, and entertain genera- The passage of the National Preservation Act into tions. law this year marked Congress' rededication to pre- In June 1992, Congress ensured that motion pic- serving motion pictures as a part of Americana.8 The tures will retain their place as part of America's 1992 version of the Preservation Act provides for national culture with its passage of the National Film many of the same methods and guidelines for preser- Preservation Act (the Preservation Act),, which vation as did its predecessor, but significant differ- replaced the original National Film Preservation Act of ences are also apparent. Generally, the new Pres- 1988 (the 1988 Act). Like its predecessor, the ervation Act is viewed as a positive step towards Preservation Act recognizes that motion pictures are guaranteeing that motion pictures, like literature, will "an indigenous American art form [which] represent enjoy a long legacy for generations of film viewers. an enduring part of [the] Nation's historical and cultur- al heritage."' An enduring National Film Registry A. The 1988 National Collection was established as part of the Library of Film Preservation Act Congress specifically for the purpose of maintaining When Congress passed the original National Film and preserving films that are chosen for their cultural, Preservation Act of 1988, it, in effect, created the historical or aesthetic significance.' equivalent of a Library of Congress for motion pic- With the passage of the original Act in 1988, tures and films." A film that was selected for inclusion beloved film characters such as Scarlett O'Hara, in the National Film Registry Collection bore a distinc- George Bailey, Vito Corleone, and Dorothy and Toto tive seal designating it as a nationally recognized 0 were assured a place in the nation's history. Under film.' the terms of the new Preservation Act, however, A thirteen-member National Film Preservation many of the film artists who gave dimension to these Board (the Board) was established with its member- characters feel less than privileged.4 Noticeably lack- ship comprised of one representative each from vari- ing from the new Preservation Act is a 1988 provision ous film industry organizations, including motion pic- that prohibited the distribution or public exhibition of ture directors, copyright owners, educators and film a "materially altered" film bearing the Registry seal, archivists." Board members served for three-year unless it carried a label conspicuously stating that it terms during which time they were responsible for original version.' In selecting those films for inclusion in the National Film was an altered form of the film's 12 response to that omission, S. 2256 and H.R. 5868 (the Registry. 6 Disclosure Bill) were introduced in 1992 in Congress. The 1988 Act included a controversial provision Collectively titled The Film Disclosure Act of 1992, which required all studios, broadcasters, exhibitors these bills, if passed, would mandate the labeling of and video cassette distributors to label any Registry any film that has been "materially altered" through film that had been "materially altered" prior to exhibi- Published16 by Via Sapientiae, 2016 Journal of Art & Entertainment Law 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 1 [2016], Art. 3 tion or distribution." The label was to state: "This is a director's notes.' materially altered version of this film ...It has been Like the 1988 Act, the Preservation Act requires a altered without the participation of the principal film selected for the Registry to bear a seal designat- director, screenwriter, and other creators of the origi- ing it as a nationally-registered film, and prohibits dis- nal film.""4 Labeling was not mandated for the vast tribution of that film without prior approval by the majority of altered films that had not been selected by Board.* Failure to obtain the approval of the Board the National Film Preservation Board. prior to distribution of an unauthorized copy may The Librarian of Congress and the National Film result in injunctive relief and a maximum $10,000 fine Preservation Board had the responsibility of defining against the distributor." what constituted a "materially altered" film, and to Conspicuously missing from the 1992 Preservation refine periodically that definition." Under the 1988 Act, however, is the mandatory labeling requirement Act, material alterations included colorization or any for Registry-protected films that have been materially "fundamental post-production changes" made to the altered prior to broadcast or distribution. Under the original version, but excluded the "reasonable new Preservation Act, no film, whether included in requirements of preparing a work for distribution or the Registry or not, needs to carry a label explaining broadcast." 6 If a film had been edited to meet FCC that it has been altered from its original version. The standards or to make time for commercials, or if for- removal of the labeling requirement from the eign subtitles had been added, it was not deemed to Preservation Act has produced a renewed effort on have been materially altered and did not require the the part of motion picture artists to demand stringent label notification." labeling of not only films in the Registry, but of all The 1988 Act prohibited the knowing distribution films presented in substantially different forms from or exhibition of a materially altered version of a film their original versions. bearing the Registry seal without the mandatory The labeling requirement under the 1988 Act gen- label." The author of a Registry-protected film was erated a great deal of controversy among owners, able to sue the studio or distributor who, after the artists, the motion picture industry and the Board over enactment of the Act, failed to comply with the label- the definition of "materially altered" and the enforce- ing requirement prior to distribution. 9 Although no ment of the labeling provision.' The Librarian of case exists of an artist bringing suit under the 1988 Congress interpreted materially altered to include col- Act, a recovery was allowable up to $10,000. " orization or any fundamental changes in theme, plot or character, or any removal of over five percent of B. The 1992 National the original running time of a film." However, Dr. Film Preservation Act Billington believed that he was not in a position to With the passage of the National Film determine the definition of materially altered." Preservation Act in June 1992, the 1988 Act was According to Billington, the Librarian of Congress's repealed in its entirety. " However, the new primary responsibility should be to secure original Preservation Act permanently entrenches the National copies of films for preservation, not to determine the Film Registry Collection initiated in 1988. Over the criteria for mandatory labeling.51 At his behest, next four years, the Librarian of Congress will expand Congress shifted its focus away from any labeling the Registry and investigate film preservation tech- requirement and moved toward an expansive view of niques.22 Dr. James Billington, the present Librarian of preservation
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