In the 1970s, the copyright for "It's a Wonderful Life," the now-classic holiday film from director Frank Capra, expired for the reason that the owners, Republic Films forgot to file an extension.

This didn't appear to be a problem at first since the film had not been much of a commercial success when it was first introduced to the film-going public on December 20, 1946 at New York's Globe Theatre. The film failed to impress as a whole, opening to mixed reviews and a steady but less than enthusiastic box office. Notwithstanding numerous Academy Award nominations[1] it didn't have "legs" and was pretty much forgotten by the end of 1947, after being one of the top ten grossing films of that year.

It wasn't until later, 1974 to be exact, that the film was revived over an event that was seemingly trivial at first. Republic Films had somehow forgotten to file an extension to the original 28-year copyright term that had been granted when the copyright to the film was filed in 1946. Television stations soon learned, more by word of mouth than anything, the film was now in the "public domain" and could be shown without the payment of any royalties.

This revival was a blessing and a curse as it turned out. It finally reached the audience that Frank Capra had originally hoped for but it was not always the same film that he had created. Copies of the film were made and copies of copies were made, lowering the production quality and worse. In some cases it was reported that unauthorized edits were made to improve compatibility for showing on commercial television. Perhaps as a tribute to the enduring spirit of the film, the audience didn't seem to care about or notice the deficits that came with the repeated holiday showings, and the popularity of "It's a Wonderful Life" increased to the point that it became the classic that it now is.

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Such a problem.

Well it is a problem if you viewed it from Republic's viewpoint. They were now relegated to watching their production become the most watched holiday film since "White Christmas" and in the spirit of Potter's Bank, they weren't able to cash in on their once-exclusive property. A little creative energy on the part of Spelling Entertainment and Republic Films changed all of this. It turned out that the musical score and the underlying story hadn't lost their copyrights. Piggybacking this fact on top of their original status as "owners" of the film, they were able to persuade one television network that they would have the exclusive rights to show the film. NBC was interested in the proposition since the nearly iconic stature of "It's a Wonderful Life" was certainly a big draw. It was agreed that in advance of NBC acquiring the "exclusive" rights to show the film, that the Spelling/Republic collaboration would send out warning (cease and desist) letters to television stations that might be tempted to show the film, informing them of the newly assertable rights.

Whatever result, and the result appears to be mixed, NBC has enjoyed some benefit as the only network broadcaster of the film, although as one can readily attest, there are numerous other opportunities to view the flick during the holiday season from other sources.

So what's this got to do with Intellectual Property rights? A lot actually. It was the potential (in some cases the reality) for copyright lapses like this that caused Hollywood minions to lobby and obtain passage of the "Sonny Bono Copyright Term Extension Act" Pub. Law. No. 105-298, 112 Stat. 2827 (1998).

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No I'm not kidding. The act was quickly challenged and was upheld against arguments that extending copyrights for another 20 years (including savings provisions for some that had been cast into the public domain already) was far beyond the original intent of the founding fathers who had originally contemplated 14 years worth of protection for authors and their works.[2]

What had happened since the crafting of the constitution was the advent of new mediums and the growth of huge entertainment industries whose lifeblood depended on protecting the exclusivity of their artistic output. Congress saw the danger that public domain status could generate if something wasn't done . . . and soon, so they passed the legislation with overwhelming bi-partisanship. The fact that there were ongoing trade talks with the global Intellectual Property community[3] didn't go unnoticed either, and it turns out that provisions of the act square up pretty closely with the standards for copyright protection found in many other countries.

Now even Disney can breathe a little easier. Mickey Mouse, whose visage was due to enter the public domain this year (2004) is now safe for another 20 years! He and approximately 400,000 other copyrights that were due to expire are now protected and will continue as the exclusive property of their copyright owners. Consider for a moment how much this could be worth to the Disney company. Beyond the films, there are numerous uses of the Mickey Mouse image on everything from t-shirts to coffee mugs.

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Ok, one could argue (and many people do) that commitment to the public domain is a good thing once the piece has had an appropriate time to return value back to the owner. Ironically, the moral of the story, at least when it comes to "It's a Wonderful Life," is that maybe its more. "It'

s a Wonderful After-Life." The public became endeared with a film that could have been considered a 1946 also-ran, but only after it had been treated as public domain property.

Hard to believe isn't it? That after spending so many times in the last 30 years with George Bailey and company, and inviting them into our homes to help celebrate the Christmas season, this tradition might never have become what it is today . . . except for a bureaucratic mistake.

By the way, Frank Capra had said on several occasions that "It's A Wonderful Life" was his favorite film. In the film, James Stewart was extremely nervous about kissing his co-star, Donna Reed; his first on-screen kiss since returning from his duties in the service during WWII. And the names of the two policemen in Bedford Falls; remember them? Bert and Ernie.

©2004 Harrington Law Offices

January 2004 www.thinkpatent.com

[1] Best Picture, Frank Capra Producer; Best Director, Frank Capra; Best Actor, James Stewart; Best Film Editing, William Hornbeck; Best Sound Recording, John Aalberg.

[2] Eldred v. Ashcroft, 123 S. Ct. 769 (2003), reh'g denied, 123 S. Ct. 1505 (2003).

[3] GATT/TRIPP

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