Film studios traditionally captured their revenue from exhibiting new films. For the industry's first 60 years, there was no mass audience for "last-year's pictures"; after a film's theatrical release cycle, most prints were destroyed and the preprint material, if still useable, was shelved and perhaps used as a source for clips.⁴² The advent of television brought a new market for some older sound films but still left studios with many other titles of little apparent commercial value. Confronted with limited markets, rising storage costs, and increasing insurance premiums for keeping nitrate film on the backlot, most studios either sold their libraries or copied more valuable titles onto safety stock, disposing of the nitrate. During the 1960s and 1970s some major studios, such as Columbia, MGM and United Artists, deposited their nitrate materials with public film archives.

The growth of secondary markets over the past decade has reversed the industry's traditional revenue sources. After their theatrical run, films now have several additional lives through licensing to cable, network television, home videotape and laserdisc (and can be expected to have more as new electronic delivery technologies develop).⁴³ For an "average" major studio feature in 1990, revenues from these ancillary markets outstripped those from domestic and foreign theatrical release by about a million dollars, and the balance continues to shift.⁴⁴ With films generating revenue over an extended time span, the studio library has become a key corporate asset. (For diversified corporations, film libraries also serve as "software" for other operations.⁴⁵ For example, after purchasing MGM/UA in 1986, Ted Turner sold off the production operations but retained the MGM library for broadcast on his cable networks.)

The actual value of film libraries has been hotly debated by industry analysts.⁴⁶ Each title's evaluation depends on anticipated audience interest over time and ownership of the exploitation rights as well as new technological applications. Commercial rights can be divided among different parties by geographic market, time period, distribution medium, language, and other factors. The approximate size of the libraries of industry respondents participating in the Los Angeles hearing is shown in Figure 4.

[Figure 4: Film Libraries of Studio Respondents]⁴⁷

Since the beginning of the "home video era" around 1980, most studios have come to recognize the potential long-term value of their film libraries and some have embarked on ambitious "asset protection" programs. Paramount is a case in point. In the last five years it has spent over $35 million inspecting its negatives, audio tracks and color separations, doing film repair, and printing new preservation materials. In 1990 it opened a new $11-million archives building, with low-humidity cold vaults for preprint and color materials. Paramount stores second master printing copies in an underground facility in Pennsylvania and tracks its 750,000 items worldwide through an automated inventory system. By investing in the physical care of its collections, the studio expects to extend the shelf life of film elements and expedite retrieval.⁴⁸ Industry storage practices, of course, vary. For example, two studio respondents store most film material at commercial vaults; several are in the process of automating their film inventory.

Most large studios now routinely keep preservation masters⁴⁹ of films they produce as well as additional materials--such as foreign-language soundtracks or edited airline versions--required for ancillary markets. For each title, the studio may keep many different preprint and sound elements. For films distributed by major studios but produced by an independent company, the situation is somewhat different. Studios usually hold sufficient materials to generate release copies, but not the preservation back- up of color separations or the original camera negative. The depth of preservation protection depends on the scope and duration of the studio's commercial rights and the film's expected value over time. Films in which studios hold limited commercial interest generally do not receive the same depth of protection as the studio's own productions.⁵⁰

Post-1950 safety films made before the introduction of studio asset protection programs present other complicated problems. According to some witnesses, the preprint materials of many well-known films of the 1950s and 1960s have deteriorated through color fading and soundtrack decay.⁵¹ The inherent physical problems were aggravated by substandard laboratory work, poor storage conditions, and inadequate inventory control. To redress past archival practices and capitalize on public interest in older titles, some studios have mounted well-publicized restoration campaigns. In 1990, for example, Warner Bros. announced the restoration of 26 "classics," including Rebel Without a Cause.⁵² Disney, Paramount, Sony and Universal have undertaken similar efforts.⁵³ One central question remains about studio preservation: Will the secondary markets stimulate high-quality preservation of all studio-held films, including newsreels, ⁵⁴ shorts and B-pictures?⁵⁵ While industry sources see that potential, others wonder if efforts will be extended beyond the more commercially viable titles and urge public-private programs to verify the quality of preservation materials for privately owned American film titles.⁵⁶

B. Independent Producers and Distributors

Lucasfilm, founded by director George Lucas, has gone to great lengths to preserve film, paper records and artifacts related to its productions.⁵⁷ To use Star Wars (1977) as an example, Lucasfilm's distributor keeps the usual master cut negative and printing materials in a climate-controlled vault but, in addition, Lucasfilm has retained all other production elements. The firm has built its own archives building to house these materials.

Filmmaker Victor Nunez, whose Ruby in Paradise shared the 1993 Sundance Festival best picture award, represents the other end of the feature-production spectrum. To Nunez's independent company, raising funds is of more immediate concern than preserving past works. Nunez pays for storage of some preprint materials at a commercial lab, and discards outtakes and the original camera negatives. He does not own prints of his features. In fact, since the distributor of his 1984 feature A Flash of Green went bankrupt, he has been unable to get a print for theatrical screenings and cannot legally make a new one. He suspects that the Library of Congress copy, deposited for copyright protection, is one of the few prints in existence.⁵⁸

Problems with distributors have led some independents to store and release films themselves. Documentary filmmaker Frederick Wiseman distributes through his own company, Zipporah Films, and has retained the full record--outtakes, preprint, one- quarter-inch tape, magnetic soundtrack and prints--for his 26 films. This amounts to roughly 16.5 million feet of film, tape and track and a $7000 yearly storage bill.⁵⁹

The works of avant-garde and documentary filmmakers are among the most at risk--due to the conditions under which the films were originally made, the limited number of release prints, and inability of filmmakers to pay for adequate storage for preprint materials.⁶⁰ For many years laboratories filled a gap by storing films free of charge to clients that used their services. Lab closings in New York City, however, left filmmakers and archives scurrying to rescue abandoned films and revealed the shortcomings of this arrangement.⁶¹ Filmmaker cooperatives and media centers sometimes house and distribute the only known print of contemporary avant-garde works.

As witnesses in Los Angeles point out,⁶² probably the first step is educating filmmakers about the preservation needs of their works. Canyon Cinema, a filmmaker-run distribution cooperative in San Francisco, recently recognized that some of its prints were rare works on color reversal stock and initiated a preservation program, funded by the Andy Warhol Foundation, through which filmmakers supervise the making of preprint material and new prints of their own works.⁶³ The Estate Project for Artists with AIDS now assists filmmakers with AIDS to plan for the orderly disposition and archival housing of their films.⁶⁴

The point to be gleaned from these examples is that independently made films are much less likely than studio productions to be maintained under conditions that will prolong their survival. Nationally distributed independent features present a particular problem, as their print and preprint materials may be scattered and controlled by different commercial interests who have limited rights and hence little incentive to invest in long- term preservation. Most smaller independents who maintain rights to their own films lack the resources, information, and scale of operations to develop comprehensive archival programs.

C. Stock Footage Libraries

Stock footage libraries have, in some cases, the only known copy of films of historical interest and fill a special niche by their documentation of regional lifestyles, popular pastimes and daily life and work--activities generally considered too ordinary for national newsreels but whose documentation has increased in value over time. As market-driven operations, such businesses pay for their own preservation work and generally give priority to the most salable footage.

Moviecraft, Inc., is a typical example. Moviecraft specializes in abandoned films-- educational, industrial, and advertising shorts produced for specialized audiences, discarded after use and no longer under copyright protection. The firm licenses footage to researchers and copies its nitrate, preprint and print materials as income permits.⁶⁶ Moviecraft and other commercial archival respondents point out that the Copyright Amendments Act of 1992, which effectively extends the initial copyright term of all post-1963 titles to 75 years, has had the result of discouraging stock footage libraries from salvaging and copying abandoned films of that era.⁶⁷

D. Large Public Archives

These archives began collecting film before the industry took an active interest in preservation. MoMA, the oldest U.S. fiction film archive, started collecting films in 1935 to guarantee that copies of important titles would be preserved as a cultural record; it reached special agreements with studios to distribute films for educational use. The George Eastman House, opening in 1949 with the support of Eastman Kodak, formed a study collection of silent and independent films as part of its documentation of the history of photography. UCLA Film and Television Archive, founded in 1965 as part of the University of California, has developed extensive holdings of Hollywood fiction film and newsreels to support academic research and study.

The two federal film repositories began as collections of government and cultural record. The National Archives retains preprint and print material for U.S. government-produced films as well as actuality footage⁶⁹ documenting U.S. history. In a sense, the National Archives serves as the "studio archive" for the federal government. ⁷⁰ The Library of Congress selects prints of films deposited for U.S. copyright protection and has extensive holdings of American film productions of all types.

In their early years, these archives acquired culturally significant films in whatever form was available. Prints were obtained for in-house study and exhibition, but preprint material was also sought, as its acquisition assured that the title could be preserved and eventually made available to the public. In the 1960s and 1970s studios transferred to MoMA, GEH, UCLA, and LC extensive nitrate preprint collections; many newsreels, notably the series Universal News and The March of Time, were donated to the National Archives which completed conversion of its nitrate to safety film in the mid-1980s.

The four large fiction film archives now house a wide range of preservation source materials--nitrate preprint, nitrate prints representing the best surviving copy, vintage theatrical prints on safety film, and preservation masters created by the archives. In terms of number of titles, these collections are far larger than industry collections (compare Figures 4 and 5). But for each feature title, particularly for the post-nitrate period (post-1950), the public archives have less depth and variety of preservation source material. To return to the Star Wars example, the Library of Congress has copyrighted release prints and reference videodiscs, but the distributor Twentieth Century Fox holds extensive preprint materials and some circulation copies, and Lucasfilm maintains other production elements.

The preservation priority for the large public archives has been the duplication of nitrate film, particularly from the silent and early sound periods. Specialists have learned to restore films by working backward from the surviving prints and piecing together preprint elements. All five archives share information on preservation activities through International Federation of Film Archives (FIAF) and have on-going programs to copy deteriorating film.⁷¹ UCLA, for example, has five full-time preservation employees as well as vault attendants who inspect and service its collections. The UCLA preservation staff coordinate restoration projects and physically prepare film for copying at specialized commercial laboratories. Like most archives outside of the federal government, UCLA contracts out for photographic and sound recording services (see Section 6.B.3).

The defining problem for public archive preservation programs is funding. The increasing difficulty in securing funds for routine film copying was a recurrent theme in the interviews, written submissions and hearings. While the federal institutions support most preservation copying internally, MoMA, UCLA, and GEH are heavily dependent on outside fund-raising and piece together their preservation budgets from many sources. MoMA's $350,000 1992 laboratory copying budget, for example, came entirely from endowment income, grants, and donations.⁷² In 1992 UCLA funded nearly 92% of its laboratory expenditures of $292,694 from outside sources.⁷³ With federal grants and state arts council support decreasing (see Sections 6.B.1 and 7), these archives are increasingly turning to high profile preservation projects to generate income for more routine work.

Can the sale and distribution of films by these tax-exempt archives become a funding source for preservation? Only to a limited extent. It should be remembered that the large fiction archives hold copies, but not the rights to most films in their collections. In cases where the films are in the public domain or the rights have been transferred, the archive may sell footage to help sustain its program. In 1992 UCLA raised 29% of its entire operating budget though revenue-generating activities, principally the licensing of footage from the Hearst Metrotone News, the rights to which, along with the physical copies were donated to the University in the early 1980s.⁷⁴ George Eastman House preserved and distributed through Kino International the Josephine Baker film Princess Tam-Tam (1935), netting some $20,000 for other projects.⁷⁵ To judge from the submissions, however, this funding option seems more immediately feasible for regional archives holding primarily news and amateur footage.

With recent research reinforcing the importance of environmentally controlled storage, many archives are now working to improve vault conditions. MoMA's facility now under construction consists of a 28,000-square-foot building for safety film and a separate 9000-square-foot structure for nitrate. Aside from a small studio vault since converted to other uses, this is probably the first U.S. building specifically designed for nitrate storage in the last three decades.⁷⁶ Archives II, the new National Archives building nearing completion in College Park, Maryland, will store color film at 25 degrees Fahrenheit and 30% relative humidity and black-and-white preprint at 65 degrees F, 30% RH. The vaults feature an air filtration system to strain out pollutants.⁷⁷

Other archives are struggling to retrofit existing buildings to meet to new storage standards. LC has spent several years upgrading the mechanical systems in two of its three vault facilities, at Suitland, Maryland, and Dayton, Ohio. Within the next few years, UCLA will place its acetate film in the University of California southern library storage facility, now under construction. Its nitrate, however, will remain in commercial storage, built over forty years ago and lacking mechanical humidity and temperature controls.⁷⁸

[Figure 5: Collection and Access Programs of Public Archive Respondents]

E. Specialist Archives

Specialist archives may be units within larger libraries, museums or universities, such as Iowa State University's American Archives of the Factual Film, or autonomous nonprofits such as Northeast Historic Film, a regional collection devoted to the moving images of northern New England. Fifteen specialist archives submitted comments for this study; the range of interests is suggested in Figure 5.⁷⁹

Newer to the field, these specialists generally do not have as well-established (or as well- funded) preservation programs as the five large public archives. With several significant exceptions,⁸⁰ these archives are primarily safety-film collections, and thus have not been compelled by the nitrate threat to focus energies on film copying. Indeed, as is pointed out in the submissions, their first preservation task is identifying endangered material and bringing it into archival custody.⁸¹ The Southwest Film/Video Archives at Southern Methodist University rescued from disposal entertainment films made for African American audiences; the Japanese American National Museum has located home movies of Japanese American daily life in the 1920s-1940s (including film clandestinely shot in World War II internment camps) through ties with the Japanese American community; the National Center for Jewish Film has searched several continents for films relating to the Jewish experience. It should be mentioned, too, that some collections, such as the New York Public Library's Donnell Media Center, were never intended as archives. They were started as film screening and study centers and were pressed into a preservation role, as titles dropped out of distribution and prints became increasingly rare. Others--particularly the regional archives like the Oregon Historical Society--hold small gauge stock (8mm and super 8mm), reversal film for which there is no economical and practical means of film copying.

The common thread for these organizations is an "as-funds-permit" approach to preservation. Usually they support preservation copying through a patchwork of funding sources, and their small staffs juggle many other duties. Among the specialist archives participating in this study, only half received funds from their own institution for laboratory work in 1992; most supported film preservation primarily through outside grants or gifts. To offset operational expenses, some collections of amateur and documentary film are turning to licensing footage. The Bishop Museum Archives promotes itself as one of two sources of Hawaiian actuality film in that state. The National Center for Jewish Film (NCJF) helps subsidize preservation through the sale of videotapes and the rental of exhibition prints as well as the licensing of footage for which it controls the rights. The NCJF likens these operations to its "museum store," a means of raising money while increasing public access to its collections.

Increasingly concerned by vinegar syndrome and color fading, specialist archives are stepping up efforts to improve storage conditions and regularize film inspection. A few, like the Academy of Motion Picture Arts and Sciences, have new environmentally controlled facilities; others, like the American Archives of the Factual Film and the Pacific Film Archive, are refitting storage areas in their parent institutions. Large and small alike, public archives generally see their fundamental preservation problem as funding: As films decay and public demands increase, how can they raise the funds to accelerate copying and improve storage?⁸²

F. Public Institutions with Small Film Collections

In terms of film preservation, the major problem for these disparate "non-film" organizations is simply finding out what to do. The Grand Rapids Public Library submission⁸⁵ describes the effort required by smaller generalist organizations to save deteriorating films found in their collections. Receiving the Blissveldt Romance as a gift, the public library discovered through research that the locally produced 1915 nitrate film contained the earliest known footage of Grand Rapids, Michigan, and represented a rare surviving example of a type of regional fiction filmmaking common to the Teens. After the city historian made numerous contacts, the library eventually received an AFI-NEA grant to cover part of the laboratory copying costs. Using this $1,100 in federal money as leverage, it then worked to raise an additional $5,000 locally to cover the full preservation of Blissveldt and a second early nonfiction film. The copies have since been shown in Grand Rapids and reproduced in several productions. The point here is that most small public organizations with historically valuable films are not equipped to preserve them without expert technical advice and support.

G. Collectors

Studios have long argued that collectors are a major market for pirates trafficking in unauthorized prints. The industry-funded Motion Picture Association of America, through its Film Security Office, has investigated film collecting activities. Several well- publicized law suits in the 1970s discouraged collectors from openly discussing their holdings.⁸⁸

Studio restoration projects, however, have spurred new interest in working with private collectors. Seeking lost stereo sound tracks for some its 1950s films, Warners Bros., for example, put out a call to borrow stereo release prints in private hands. The studio guaranteed immunity from legal prosecution to those who lent the prints for copying.⁸⁹ Several studio archivists privately admit to obtaining copies from collectors of titles the studio has lost. At both hearings, there was discussion among industry representatives of the possibility of an amnesty for collectors of Hollywood film.⁹⁰

H. Foreign Archives

It is known, however, that a large number of lost or damaged American films exist in copies held abroad, particularly in Eastern Europe. For the film production of the 1920s, for example, approximately 35% of complete American features survive only in foreign archives (see Figure 11). In an international survey of archival holdings of films listed in the National Film Registry, foreign archives, when guaranteed anonymity, reported holding some form of preprint material for about 50%. There were three European archives that each had 20 to 25 titles, roughly equal to numbers found at the Museum of Modern Art or the Library of Congress.⁹¹

6. Federal Funding of Film Preservation

A. Preservation Copying and the Copyright Law

The U.S. House of Representatives Judiciary Committee's discussions preceding passage of the 1976 Copyright Act took note of the copyright questions surrounding film preservation work and cited a "fair use" exemption for archives copying deteriorating films for preservation purposes.⁹³ Archives, however, are restricted in certain other uses of the copyright-protected films they physically preserve. (They may make films available for on-site study but without permission of the copyright holder or the transfer of rights, archives generally cannot publicly exhibit copyrighted films or distribute them for sale. For further discussion of these access questions, involving copyright, fair use, and "public domain" films, see Section 8.)

B. Direct Federal Support of Preservation Copying

1. AFI-NEA Film Preservation Grants.

The AFI-NEA grants subsidize laboratory costs for copying deteriorating film onto new stock.⁹⁶ To qualify for support, applicants must demonstrate the cultural value and rarity of the films proposed for copying, give evidence of a sound implementation plan (including laboratory estimates), and match the federal money with local funds on at least a one-to-one basis. Like many federal arts grants, the AFI-NEA awards are decided through a peer review panel.

[Figure 6: AFI-NEA Film Preservation Grant Distribution, 1979-92]⁹⁷

Program scope and participation. The AFI-NEA program grew from the AFI's effort to collect and copy nitrate films in the late 1960s. Since 1979 about 85% of the funds have gone to the largest nitrate archives: the Museum of Modern Art, the International Museum of Photography and Film at George Eastman House, and the UCLA Film and Television Archive, which, taken together, report approximately 97% of the uncopied nitrate in public hands (not counting the Library of Congress).⁹⁸

The AFI-NEA grants now fund copying of decaying acetate as well as nitrate film in a broad range of non-federal institutions. (Major recipients are shown in Figure 6). Between 1979 and 1992, 37 archives, historical societies, libraries, and universities received grants; ⁹⁹ overall 65% of the yearly applicants are awarded some amount of support. Recipients of smaller awards emphasize that the value of the federal grants goes far beyond the actual dollars.¹⁰⁰ The grants help validate the cultural interest of the preservation projects and thus attract matching funds from local donors. From 1979 to 1992, the program awarded over $5.5 million in grants, stimulating at least double that dollar amount in film preservation expenditures. (For yearly totals, see Figure 8.)

What types of films are copied with federal grants? The AFI-NEA program provides a preservation safety net for lesser-known American films of cultural and historic value. The overwhelming number of titles copied with grant funds are silent, factual, avant- garde, or dance films--film types less likely to receive asset protection in the industry or to attract preservation donations to public archives. The program has consistently worked to preserve America's oldest motion pictures. Over 50% of the titles copied between 1979 and 1992 were made before 1929, the year that "talkies" became common (see Figure 7). Without the AFI-NEA program many American silent films would not survive today.

[Figure 7: What Types of Films Are Preserved with AFI-NEA Grants?¹⁰¹ (Based on grant records for titles copied, 1979-92)]

The remaining titles are a diverse group. The studio sound features on nitrate were largely funded in the early years of the program, before the industry began its major retrospective preservation efforts. Roughly 2% of the total are nitrate sound features by smaller or now-defunct independent producers. Most of the post-nitrate era films are experimental or dance works. Since 1979 three specialist archives--the National Center for Jewish Film, the New York Public Library Dance Collection and Anthology Film Archives--have received roughly 10% of the total funding, thus assuring a certain threshold of preservation copying in these recipients' subject areas. All told over the last 14 years, the AFI-NEA program has funded copying of over 3,300 films.

The gray area for AFI-NEA grants is nonfiction film. The AFI-NEA grants are administratively linked with the NEA's Media Arts, a unit mandated to support works of "artistic excellence" and the AFI-NEA grants are expected to follow the general principles of the larger program.¹⁰² In practical terms, this means that the AFI-NEA program is asked to distinguish between films of "artistic" and purely factual interest. Working within these guidelines, it has awarded preservation funds to nonfiction film and actuality footage, some 16% of the total titles copied.¹⁰³

Declining funding. Though interest has expanded, the AFI-NEA preservation funding has declined markedly since 1979, in both actual and inflation-adjusted dollars (see Figure 8). Federal support has not kept pace with rising laboratory costs (see Section 6.B.3) or with the growing list of film preservation problems documented in recent scientific research. In 1980 the program distributed $514,215 in federal grants, an amount sufficient to copy the equivalent of 159 black-and-white silent features (not counting the matching funds provided by recipients); in 1992 the $355,600 in awards could support copying for fewer than 26.¹⁰⁴ Thus U.S. film archives have been competing for decreasing federal preservation money that buys decreasing amounts of preservation copying. In 1979, the AFI-NEA program funded 82% of the preservation project dollars requested by applicants; in 1993 it funded only 27%.

2. The Library of Congress and the National Archives Programs.

The Library of Congress established its own preservation lab in 1971,¹⁰⁶ with the funding assistance of the NEA, to manage conversion of its extensive nitrate holdings to safety film. Now located at Wright-Patterson Air Force Base in Dayton, Ohio, the conservation laboratory specializes in black-and-white nitrate film, duplicating over a million feet yearly. It has customized equipment to handle brittle and shrunken filmstock and other problems common to deteriorating nitrate.

[Figure 8: AFI-NEA and LC Funding for Film Preservation Copying, 1979-92]¹⁰⁷

By the mid-1980s the National Archives and Records Administration had copied all federally held nitrate titles, outside of those in the LC.¹⁰⁸ Its laboratory work now involves safety film and videotape. The NARA actively promotes preventive measures to slow film deterioration; it has used polyester-base film and low-fade color stock for copying projects and encourages federal agencies to place government-made films under archival conditions soon after production.

Like the AFI-NEA grants, the LC funds for film preservation copying have markedly declined from their 1980 level. When adjusted for inflation (see Figure 8), the LC 1992 film copying allocation¹⁰⁹ was less than half of the 1980 amount, although the size of its film collection has grown by some 100,000 reels. Putting aside the NARA expenditures for film preservation copying, which are difficult to isolate, ¹¹⁰ the total federal funding for film preservation through the AFI-NEA and the Library of Congress was $796,080 in FY 1992.

3. The Role of Commercial Laboratories

While serving both public and industry clients, commercial preservation laboratories receive most of their work from the private sector. All specialist labs responding to this study reported that 40% or less of their business came from public and nonprofit archives. Generally preservation labs employ fewer than 20 technicians. To fully train an employee for film preservation work, one lab estimates, requires two years.

Preservation laboratory work is priced by the labor and time required for the task. The cost for even so seemingly standard a product as a black-and-white duplicate silent-film negative varies with the condition of the deteriorating film and the preparation work required. With more complex reconstructions--sound, color, widescreen formats--costs increase. Costs therefore vary within a range and are difficult to reduce to a single price-per-foot measurement.

That said, average film preservation copying costs have indeed increased over the last decade. Based on figures supplied by the UCLA Film and Television Archive, the average cost for copying a 90-minute black-and-white silent film has more than doubled over the last 12 years, even after adjusting for inflation (see Figure 9). Preservation of sound film or of two- or three-strip Technicolor is more expensive, due to the greater amount of material examined and copied.¹¹³ With the declining level of federal funding, these cost increases are more difficult to absorb for public archives than for industry clients. To put this in terms of the shrinking federal preservation dollars, in 1980 the UCLA AFI-NEA preservation grant of $107,349 would have funded the copying of 33 deteriorating black-and-white silent films; in 1992 its $101,000 grant could only preserve 7.

[Figure 9: Cost of Preserving a Black-and-White Silent Feature (Based on UCLA figures for a 90-minute 35mm film, copied from a print)]^114,115

Specialist labs argue that their facilities are now operating below peak capacity and could better serve public and nonprofit clients if the flow of preservation copying work were regularized. To justify investment in customized equipment or training additional staff, labs have to be confident of receiving a certain threshold of work over time.¹¹⁶ Publicly funded projects are now a less reliable source of revenue than commercial work. The very nature of the AFI-NEA grant program--its annual cycle and project-by-project approach--discourages multi-year commitment to broad initiatives with large start-up costs.¹¹⁷

C. Support of Preservation-Related Activities

AFI Catalog. The AFI Catalog of Motion Pictures Produced in the United States, an authoritative description and index, has over the years received research grants from the National Endowment for the Humanities and the NEA. The project has completed volumes on the features of the Teens, the 1920s, 1930s and 1960s, and begun research on the earliest U.S. films (1893-1910) and the features of the 1940s. It hopes to extend coverage eventually to American shorts and newsreels.

The AFI Catalog has many applications. For scholars of film and American culture, the Catalog is a basic reference book and will probably become even more accessible when issued on CD-Rom, as is currently under discussion. For film archivists, the Catalog defines the baseline for U.S. film production. It gives accurate information for identifying films acquired without titles or credits, and verifies the length, technical processes and versions of features as they were originally released. By recording studio and independent production decade-by-decade, the Catalog provides a statistical population against which film survival rates can be reliably calculated.

National Moving Image Database. A project less visible to scholars is the National Moving Image Database (NAMID), launched in 1984 as means for sharing information on archival film holdings. NAMID is conceived as a family of databases linking public/nonprofit archives and studio collections through a common communication format; the goal is to facilitate film preservation, scholarly research, and shared cataloging. Between 1984 and 1993, the project received $1,370,000 in NEA support.¹¹⁸

NAMID currently operates as a data-purchase program. NAMID awards selected tax- exempt archives "conversion funds" to organize and automate their film catalogs and submit data to the National Center for Film and Video Preservation in Los Angeles.¹¹⁹ The program has been a major vehicle for introducing automated systems to smaller archives. As of April 1993, it had collected data from 21 archives¹²⁰ and amassed a database of 165,000 records representing some 100,000 feature, short, video and avant- garde titles.¹²¹

NAMID, however, has failed to become a regularly consulted preservation tool among U.S. archivists. Little of the database is available for direct, dial-in consultation. Access protocol complexities and the delays in updating holdings information have discouraged use.¹²² To find out if specific titles have been copied, most archivists still prefer calling colleagues or requesting a search of the AFI-NEA grants database, an in-house tool developed for tracking the distribution of grants and AFI Collection materials.¹²³

National Film Registry. The National Film Registry was created by Congress in 1988 to single out American films of particular cultural, historical, or aesthetic significance. Films listed in the Registry are collected and preserved by the Library of Congress in their original release version. Each year nominations to the Film Registry are solicited from the public, and 25 selections are added by the Librarian of Congress, in consultation with the National Film Preservation Board (NFPB), an eighteen-member advisory group of film industry, academic and archival representatives. The National Film Registry now numbers 100 titles. While some respondents fault the Registry for overrepresenting studio-produced Hollywood features,¹²⁴ the Registry has moved toward greater coverage of independent and documentary film.

The renewal of the National Film Preservation Act in 1992 reauthorized the activities of the NFPB for four more years and expanded the role of the Librarian of Congress and the National Film Preservation Board in preservation planning.¹²⁵ The 1992 law mandated this study and a national film preservation program, both to be submitted to the appropriate Congressional committees. Congress authorizes $250,000 yearly for the National Film Preservation Board activities. In 1992 the funds supported the cost of National Film Preservation Board meetings, the two hearings, preparation of this study, and acquisition and preservation of several independent films listed on the National Registry.

Other federal support. Other grantmaking agencies play a lesser role in film preservation. The National Historical Publications and Records Commission (NHPRC), a statutory body affiliated with the National Archives and Records Administration, funds efforts to organize, describe and preserve collections of paper and non-textual records of documentary importance for American history. To date, among tax-exempt moving image archives, NHPRC has funded largely television newsfilm projects, although it has been open to proposals involving other types of unpublished documentary footage.¹²⁶ Motion picture collections within large research libraries are eligible for support through the "Strengthening Research Library Resources Program" (Higher Education Act, Title II-C). Administered by the Department of Education, Office of Educational Research and Improvement, this effort funds the cataloging and preservation of publicly accessible collections; relatively few film-related applications are received.¹²⁷

The National Endowment for the Humanities (NEH), a long-time supporter of the AFI Catalog, has no program specifically designed for film archives. While traditionally deferring to the NEA in funding the physical preservation of motion pictures, the NEH Division of Preservation and Access has, as of June 1993, a pending grant for a newsreel preservation project, its first for motion picture preservation in nearly a decade.

Summary. To sum up, federal funds, through the in-house programs of the Library of Congress and the National Archives and more recently the AFI-NEA grants, have sustained film preservation copying for several decades, although support has decreased by half in the last fourteen years. The NEA, NHPRC and Department of Education also fund, on a more occasional basis, projects to collect and organize motion pictures and film information in institutions that meet application criteria. What is missing from this national framework is funding for improving film storage conditions¹²⁸ and for the preservation copying of documentaries and newsreels produced and circulated outside of the federal government.

7. Foundations Funding Film Preservation

Probably the foundation most actively supporting American film preservation has been the David and Lucile Packard Foundation. Between 1981 and 1992, the Packard Foundation distributed over $2 million for film copying, exhibition, and research to the National Center for Film and Video Preservation, the Library of Congress, the Pacific Film Archive, and the UCLA Film and Television Archive. The Packard Foundation has been a major funder of the AFI Catalog and the nitrate conversion of newsreels and feature films of the 1930s. It is particularly concerned with the quality of film access and has supported the striking of new 35mm prints so that the public can experience films as they were originally intended to be seen.¹³⁰

The John D. and Catherine T. MacArthur Foundation's principal film interests are independent filmmaking and public affairs documentaries. The MacArthur grants to media centers, $7 million from 1987-1991, support a variety of local access, exhibition and preservation activities as well as production facilities for independent filmmakers and videomakers. The foundation has also funded public screening programs; in 1991, for example, UCLA received a MacArthur grant to make prints of films by Mexican directors for exhibition in the U.S. and Mexico.¹³¹

Several foundations developed from the estates of filmmakers are involved in film preservation. The Louis B. Mayer Foundation is funding a demonstration project to create new Technicolor prints from original three-strip Technicolor negatives at the Beijing Film and Video facilities.¹³² Both the Andy Warhol and the Mary Pickford Foundations have underwritten preservation efforts in their respective areas of interest-- the avant-garde and the Hollywood film.

The Film Foundation, begun in 1990 by Martin Scorsese, Woody Allen, Francis Coppola, Stanley Kubrick, George Lucas, Sydney Pollack, Robert Redford, and Steven Spielberg, presents a very different profile. The Film Foundation is, in a sense, a grassroots organization started by successful filmmakers to increase preservation awareness within the industry and cooperation with public archives. Scorsese has lobbied studios to protect older films in their libraries and persistently pushed to improve the quality of preservation laboratory work.

The Film Foundation has gone directly to the public to convey the urgency of current preservation problems. This March it cosponsored with the American Movie Classics (AMC) cable network a three-day festival of film preservation. The AMC festival broadcast features, shorts, and nonfiction films restored by the public archives as well as short documentaries and celebrity interviews on film preservation, and solicited preservation donations from the audience by means of an 800-number.¹³³

8. Public Access

"Access"--as it is used in the hearings, submissions, and elsewhere--is a catch-all term for a wide variety of film uses, including study, public exhibition, distribution, and footage licensing. Some of these uses are broadly educational, others clearly commercial. A correspondingly wide array of public constituencies seek access to preserved films, including scholars, classroom viewers, telejournalists, filmmakers, cable operators, video distributors, filmgoers and video renters. Access means different things to each of these groups. Access to film also requires either on-site viewing or a method of off-site delivery, and formats for both are also varied, chiefly 35mm prints, 16mm prints, videotape, videodisc, and electronic transmission.

Among the institutions and businesses that hold film, the policies regarding access are as multiple as the possible combinations of uses, users, and formats suggest. For the major studios and other rights holders, access is a key commercial decision. The Walt Disney Studio's longstanding policy of regular seven-year theatrical re-releases of its animated features is only the best known example of the way that cycles of access and access-denial can prolong a title's commercial life. A number of filmmakers, including Alfred Hitchcock, John Wayne, and John Cassavetes (and their estates), turned the withholding of access into a tool for creating scarcity and audience anticipation that probably adds to commercial value. No doubt the public's right to view a privately owned cultural heritage needs to be factored in here, but the commercial principle is fairly clear.

Access and the public archives. Where the question of access is currently most contentious is in regard to films held by public archives. For many of those seeking copies of films, archivists can look as if they are perversely saving films for a posterity that never quite arrives.¹³⁵ The frustration is understandable, but it needs also to be noted that archivists are working under certain constraints, both legal and practical.

Access to a great many films held in public archives is restricted legally in two ways: through copyright and through contracts. As mentioned at the opening of Section 6, U.S. copyright law distinguishes between "ownership" and the "material object" in which that ownership is embodied. For film titles under copyright protection, public archives typically hold only the material objects--the film copies--which "fair use" exceptions allow archives to make available for on-site educational study and to duplicate for preservation purposes.¹³⁶ Other rights to reproduce, distribute, and publicly exhibit the film are generally retained by the copyright owner.

Films without copyright protection, and thus available for use without licensing, are usually labeled "public domain," a sometimes confusing term because of its application to several groups of films. The term deserves a brief digression because of its frequent use in the submissions and testimony.

Public domain. Titles most clearly in the public domain are those created and distributed over 75 years ago--the greatest length for which copyright is generally allowed. By the end of 1993, therefore, films distributed before 1919 will have fallen into public domain. (There are, however, exceptions even to this rule, notably for so-called "unpublished" films.)¹³⁷ Other more recent films are also labeled "public domain," and for them the determination of copyright status can become extremely complicated. Under the 1909 Copyright Act, registered works could enjoy two terms of protection, a 28-year first term and, if renewed at the end of that term, a second 28-year term. In the 1960s Congress made various extensions for works already in their renewal term, eventually adding 19 years, thus bringing the total potential protection to 75 years. However, if an owner neglected to submit a renewal at the end of that first term, the film fell into public domain. Current law has simplified this procedure so that, in effect, films registered after 1963 have a single 75-year term.¹³⁸

What further muddies public domain is the copyright status of "underlying works," such as a film's literary source or music. Even if the film itself lacks copyright protection, these underlying works may have owners different from the film's owner and who may possess some control over it. The current legal battle over two videotape versions of John Wayne's 1963 film McLintock! suggests the complexity of public domain issues. Although copyright for the film itself lapsed, several copyrights involving the music score were renewed and the dispute centers over those rights.¹³⁹ Even the most famous example of a film long presumed to be in the public domain, Frank Capra's It's a Wonderful Life (1946) whose copyright expired in 1974, is now claimed to be controlled by rights holders of the original short story and soundtrack music.¹⁴⁰ Public archives have been reluctant to insert themselves into these legal disputes by releasing films less than 75 years old, especially as archives would be liable for copyright infringement should they exceed the narrow fair use exceptions.¹⁴¹

In addition, the use of films at public archives is often governed by legally binding instruments of gift or deposit. In certain rare cases, these contracts give the archives the copyright ownership as well as the physical material (as with the Hearst Metrotone News collection at the UCLA Film and Television Archive). More often, the contracts restrict the use of both the donated or deposited material and of the preservation copies made from that material, even after the expiration of copyright. (The contentious situation that has resulted from such contracts is discussed more fully in Section 9.)

Balancing preservation and access. Beyond the legal issues, public archives labor under practical constraints that also hinder access. As is evident from the earlier discussion of funding, archives are making do with considerably fewer preservation resources than a decade ago, and recent calls for greater access have coincided with the acknowledgement of such additional problems as color fading and acetate-base degradation that have stretched basic nitrate-copying and storage resources even thinner. Providing greater access to film titles in public archives often requires not simply the diversion of employees but the more difficult decision to carry copying to the viewable "reference print" stage, a perhaps unjustifiable trade-off when it comes at the cost of preprint preservation for nitrate in danger of being lost forever.¹⁴²

Access is thus less a matter of opening the vault doors than of balancing responsibilities. In physical terms, access may be the opposite of preservation. But archivists seek a balance. As Robert Rosen, Director of the UCLA Film and Television Archive, puts it in his submission, "Preservation without access is dead storage; access without preservation is destructively short-sighted." Stephen Gong, General Manager of the Pacific Film Archive, speaks of "the interconnectedness of collection, preservation, access, exhibition and study of film."¹⁴³

Film access today. It is difficult to generalize about the current state of film access because of that extreme variety of film uses, users, formats, and institutions. A decade and a half into the "home video era," it is already hard to recall just how greatly access to Hollywood features has improved--at least on videotape and disc. The profusion of commercially available videos has brought evolutions, too, in the kinds of access asked of public archives; there are fewer requests for individual screenings of mainstream films but more requests for archives themselves to make their public domain titles available for video release. The National Archives and Records Administration estimates that 70-80% of its researchers are seeking footage or conducting background research for new productions.¹⁴⁴ The increased sophistication of film scholarship has brought greater published use of and requests for "frame enlargements"--still photographs made directly from film prints--an unresolved issue that touches on both legal and physical constraints.¹⁴⁵

Access in museums and local history organizations is often through exhibitions that incorporate video and interactive displays.¹⁴⁶ 16mm remains a vital format among independent filmmakers and distribution cooperatives, but 16mm prints of feature films are becoming more difficult to find for classroom rental, as studios and commercial distributors abandon the format; currently unavailable are key works of American film directed by Samuel Fuller, Alfred Hitchcock, Douglas Sirk and many others. Theatrical screenings of 35mm prints of older titles in repertory houses is a spotty proposition, with certain studios making their library titles actively available (e.g., MGM, Paramount, Turner), and others only rarely (e.g., Disney, Twentieth Century Fox, Universal).¹⁴⁷ Public archives are often pressed to fill the gaps in such requests for 35mm prints but generally do so only for established non-profit theatrical venues and film festivals. Users often must pay both fees to the copyright holders and shipping costs to the archives.¹⁴⁸

Each of the five largest public archives maintains a screening program in their on-site theaters. (See Figure 5 for the number of screenings in FY 1992). For such screenings of the archives' own physical holdings, the major-studio copyright owners usually forego their fees, through contract agreements and case-by-case permissions. For titles to which public archives do hold rights or which are in the public domain, there is that potential for developing revenue-generating ventures mentioned earlier.

Generally speaking, access programs in the public archives have been conceived more as public services than revenue sources. The Museum of Modern Art's Circulating Film Library (the pioneer rental program for educational institutions) of 1100 titles, primarily in 16mm, attempts to operate on a break-even budget and pays royalties (generally 50% of rental) to copyright holders.¹⁴⁹ The UCLA Film and Television Archive does earn funds from licensing its Hearst Metrotone News collection. The George Eastman House distributes about 30 titles through MoMA's Circulating Film Library and has begun to distribute other restored titles on videodisc (through the Lumivision company); thus far, the seven videodiscs released have not been a significant source of income (although $20,000 was generated by the Josephine Baker film, Princess Tam-Tam, mentioned earlier). The first six videotapes in the "Library of Congress Video Collection," due for public release in December, will make available six early silent features and 29 silent shorts from the Library of Congress preservation program. Largely unexplored has been educational access through newer electronic and computer technologies.¹⁵⁰

Access to cataloged information about titles held in the public archives and the private studios also generally remains an unfulfilled potential, as discussed earlier in connection with the National Moving Image Database. Currently among the largest public archives, UCLA and the Library of Congress have the most accessible databases. UCLA's is available nationally by computer modem with payment of a fee.¹⁵¹ The main database of the Library of Congress' holdings (LOCIS) became nationally available without charge through the Internet in 1993, although this database currently includes only about a third of the Library's total film holdings.¹⁵² Representatives of each of the Hollywood studios participating in the hearings expressed a willingness, if in general terms, to make information about their holdings more widely accessible.¹⁵³

9. Who Benefits from Publicly Funded Film Preservation?

Benefits to rights holders. While the public benefits of film preservation are relatively obvious, less frequently discussed are the private benefits--advantages enjoyed by the rights owners of films maintained and preserved by the public and nonprofit archives. These benefits are part of the full preservation cost/benefit equation. Before describing these benefits, it is helpful to return once again to the legal context under which studios place their films in archives.

Studios either give physical copies of films to public archives outright or place them on long-term deposit. In either case, the studios generally retain the rights to their titles and negotiate the terms for archival use. A major portion of the Hollywood preprint collections at the four large nitrate archives are on long-term deposit; that is, the physical copies are still owned by their studios. While the deposit agreements differ from case to case, typically they allow the archive to show films to individual scholars, screen them for limited in-house exhibition, and, most importantly, make preservation copies for the archive's own collections. Loans to film festivals and similar events generally require the permission of the copyright holder. In return, the archive stores the material and allows depositors access to the original nitrate elements and, generally, one-time use of any new preservation masters made by the archive. In most cases, the studio contracts carry prohibitions against commercial use that do not expire when the term of copyright ends.

Gift agreements generally carry similar provisions. With gifts, however, the ownership of the physical property (although usually not the rights) passes to the tax-exempt archive, thus opening up the possibility for the donor to claim a charitable contribution for tax purposes. Transamerica Corp. v. United States, an appeals court decision noted in some submissions, explores the balance of private/public benefits from such arrangements.¹⁵⁵ In 1969 United Artists donated to the Library of Congress the earliest surviving preprint material for 3000 Warner Bros. and Monogram films. Under the instrument of gift, the donor retained full commercial exploitation rights as well as the power to control access to the collection, aside from preservation and on-site scholarly use, even after the copyrights expired. The court found that the Transamerica (which at the time owned United Artists) received "substantial benefit" from its transfer and disallowed the charitable contribution.¹⁵⁶

What are the private benefits of public film preservation? For donors or depositors of nitrate materials, a key benefit is storage.¹⁵⁷ To appreciate the full value of this benefit requires some historical perspective. Studios transferring films before the late 1970s generally presumed their libraries had exhausted most of their commercial life. Public institutions were a safety net, a means of warehousing the earliest generation preprint without having to pay for its upkeep. Archives recognized that culturally significant nitrate films might be lost to the public if they did not provide this service. Now, of course, the market has changed, and studios value their preprint differently, but past agreements are still in force.

The public archives pick up the costs of storing and caring for the nitrate preprint materials to which the studios have ongoing access. Archives without their own nitrate vaults, such as UCLA, pay for commercial storage in specially designed, explosion- proof vaults. The cost of nitrate storage ranges from about $120 to $240 per month for 1 million feet of film (one thousand 1000-foot reels), depending on the location of the facility, features of the vault, services offered by the vendor, and total quantity of film stored. At these 1993 rates, the combined studio preprint nitrate currently housed by the Library of Congress, for example, would cost the equivalent of $138,096 to $276,192 yearly to keep in a commercial vault, not counting retrieval fees and other service costs. ¹⁵⁸ Figure 10 lists, by archive, the amount of the nitrate preprint footage for which studios still maintain rights. For this material, the yearly storage costs at average 1993 commercial rates would total $275,730.

[Figure 10: Privately Controlled Nitrate Preprint at Public Archives: How Much Would It Cost in 1993 To Store This Material Commercially?]¹⁵⁹

In the 1990s the terms of these arrangements are being rethought. In conjunction with its recent deposit agreement with the Library of Congress, Disney is paying the salary of the technician who inspects and services Disney preprint elements at the LC nitrate facilities in Ohio. Similarly Sony has begun contributing to the upkeep of the Columbia nitrate collection, donated to LC in the 1970s through the American Film Institute, by paying for two support staff.

The restoration work done by archives contributes to another private benefit. As the testimony suggests, restoration work is a costly, labor-intensive activity involving careful comparisons of many generations of film materials to identify the best surviving source for copying. Several well-known film restorers work at public or nonprofit archives; their reconstruction of films physically held by their archives can increase the films' commercial value. Furthermore, the FIAF-member archives, through contacts with foreign archives, are able to tap sources of preservation material unavailable to the studios. The recent restoration of the Spanish-language Dracula (1930) suggests the importance of such contacts in restoring older titles. Dracula, shot with a Spanish- sp