What silent film can teach us about media preservation: a case study in Section 108
Dave Rodriguez is a former member of the Video Trust Board of Directors (2020-2022) and serves as one of the partners in maintaining the Academic Libraries Video Trust. In his 10+ year career, he has worked in museums, academic libraries, and in the private and non-profit sectors preserving and exhibiting a wide variety of film & audiovisual collections. He is currently the Digital Services Librarian at Florida State University, where he helps sustain FSU’s digital repository and preservation infrastructure.
A still from the documentary series Hollywood: A Celebration of American Silent Film
Lessons from history
In 2013, historian and archivist David Pierce published a landmark study on the “survival rate” of feature-length American films from the silent era (1912-1929). His findings are somewhat shocking: of the 10,919 films released during this period, only 14% still exist in their original “complete domestic-release version” (p. 1). Some titles also survive only in “foreign-release” versions, on small-gauge copies, or as fragments.
But all taken together, Pierce’s extensive research revealed that approximately 70% of the titles released in this seminal era of cinematic history are believed to be completely lost. While there are rare instances when films are miraculously unearthed (sometimes literally—like the incredible discovery of films preserved in the permafrost of the Yukon Territory chronicled in Bill Morrison’s documentary Dawson City: Frozen Time (2016)), it is likely that the vast majority of these works will never be seen again.
The time-period of Pierce's study is notable not only for its significance to film history (as he notes, the era reflected “the most diversity of creative technique and certainly the period in which the aesthetics of filmmaking underwent major evolution”), but also as one of incredibly rapid production (p. 18). With the exploding popularity of cinema in the 1910s and 20s, movie-houses cropped up in nearly every town in the US and studios flooded the market with as many films as they could finance, enabling some theaters to show a completely different bill of features every single day (p. 19).
But with this popularity and influx of productions also came a sense that movies were merely disposable entertainment, with their value judged against their capacity for “economic—not artistic” achievement (p. 21). In the eyes of distributors, once a film had its run, there was little incentive to keep it around and, more often than not, the volatile nitrate prints and negatives were discarded or left to decompose. As such, in the ensuing decades, a decentralized network of fledgling archives, collectors, and a handful of intrepid studio executives would work to preserve and salvage what they could of the silent era.
It’s been about 100 years since this time of cinema’s expansive adolescence, and much remains the same. Like the 1910s and 20s, the early 21st century sees both an ever increasing number of venues in which to experience moving images—from luxury multiplexes to iPads to airplanes—and an exponentially increasing number of creators pouring content into too many social media and streaming platforms to name. The situation is a mirror-image of the 1920s, with Poverty Row and any other able producer churning out westerns and melodramas in droves with little to no budget (p. 20). Both are times of enormous growth and production, with the resources needed to preserve even a modest portion of its output quickly falling behind.
But unlike the silent era (and thanks to the work of scholars and archivists like Pierce), 21st century institutions have the advantage of hindsight and greater understanding of what is at stake. Furthermore, the formats and media associated with moving images have proliferated and are no longer bound solely to photochemical film. U-Matic, Betacam, and VHS videotape in addition to Laserdisc, DVD, Blu-Ray, and digital bitstreams—all have become part and parcel to the ways contemporary audiences learn from, enjoy, and take solace in the movies.
Additionally, libraries serving communities and college campuses alike have become bastians for safeguarding and maintaining access to these media. These works become embedded in coursework and sought out by eager patrons, regularly becoming worn out through repeated use on sometimes aged, faulty VCRs and other equipment. While commercial streaming services have become the norm in many living rooms, libraries remain a common access point for moving-image materials and continue to serve a vital, necessary function in making them available to everyone.
Copyright superpowers
In 1976, Congress passed the US Copyright Act, an enormous consolidation and codification of earlier laws related to intellectual property. Included in this legislation is an enormously powerful tool (one of libraries’ “copyright superpowers” as termed by attorney and copyright expert Kyle Courtney) that helps libraries ensure that the massive losses chronicled by Pierce’s report on the silent era do not befall another generation: Section 108.
Section 108 outlines many activities that non-profit libraries and archives are allowed under the law, a key one being the ability to create up to three “preservation copies” of titles on obsolete formats (e.g. VHS, U-matic tapes) in their collections for which no non-obsolete replacement (e.g. a DVD, Blu-ray, or other digital version) can be acquired at a fair price. In practice, this permits a library to take an out-of-print, obsolete copy of a work, digitize it (up to three copies), and make them available to patrons in lieu of the original. This important legal right carves out a space for libraries not only to increase the longevity and impact of their collections, but to contribute to global efforts ensuring long-term access to important pieces of the historical record.
The Hollywood case study
Appropriately, one of these important pieces of the historical record concerns itself with the preservation and study of the silent film era: David Gill and Kevin Brownlow’s landmark series Hollywood: A Celebration of American Silent Film. This multi-BAFTA winning, 13-part documentary originally aired on British television in 1980 and features clips from 100+ films made between 1894 and 1956. Supplementing this treasure trove of silent cinema’s greatest hits are detailed, candid interviews with some of the most noted performers, directors, and technicians of the silent era discussing everything from the star system to stunt driving to sex scandals. Threaded together by incomparable narration from actor James Mason, it functions at once as an extensive oral history of the American film industry’s formative years, a masterclass in silent film analysis, and, like any great film documentary, offers an extensive, captivating selection of film excerpts that leaves an audience scribbling down titles to look up later. The fingerprints of Hollywood can be seen on so many documentaries and essay films about cinematic history that preceded it, including Thom Anderson’s Los Angeles Plays Itself (2003), Hsieh Chin-lin’s Flowers of Taipei: Taiwan New Cinema (2014), and Mark Cousins’ The Story of Film (2011) and Women Make Film (2018), among others.
Pictured here, silent film stars like Gloria Swanson, Lillian Gish, and many other performers and filmmakers offer first hand experiences about working in Hollywood in the 1910s and 1920s. The series also contains clips from many films of the era.
After airing in the UK, distribution of the series in the United States was acquired by a then fairly young company called Home Box Office (HBO) who released Hollywood as a 13-tape series on VHS (with an even rarer and, allegedly, more “complete” version also put out on Laserdisc). Libraries and collectors alike, recognizing the tremendous importance of Brownlow and Gill’s deep archival and historical research, flocked to acquire the series. It remained available for some time, but as the era of VHS waned and digital forms of distribution rose to prominence, a non-obsolete (and legal) version of the series has yet to be made available.
The reasons for this are complex, but can be adequately summarized in a single phrase: rights clearances. Despite the fact that many of the clips used in the film have fallen into the public domain, as Ben Model notes: “the costs of clearing all the clips used in all the episodes is what is in the way of the landmark series...being re-released on DVD and Blu-ray.” Kevin Brownlow himself has also publicly lamented this situation. In his acceptance speech of the Robert Osborne Award from Turner Classic Movies in 2019, he begs the question: “Where is the Hollywood series? It’s been forty years. Everybody in it has died. Do the lawyers in the front office still demand impossible figures?” Further, as discussed by Dennis Doros (co-founder of Milestone Films) and Jessica Rosner (independent media consultant) on the American Library Association’s [videolib] list-serv in February 2021, the costs of technically remastering and replacing the film clips and interview footage is likely too daunting for a title that may have limited commercial appeal, despite its huge historical value.
This constellation of unfortunate legal and logistical circumstances is a quintessential example of why Section 108 is so vital to the core mission of libraries and archives. The world may never get a “re-mastered” Hollywood, so the VHS copies sitting in academic and public libraries may be the only version of the series that is possible for anyone to ever see. Digitizing and creating preservation copies of the Hollywood episodes under the auspices of Section 108 will help ensure that collecting institutions will be able to provide their patrons access to this series long after their tapes have succumbed to wear and decay.
How to get involved
While the legal affordances of Section 108 lay out a path for libraries to undertake this important work, actually forging ahead is another consideration entirely. The financial, technical, and staffing resources needed to digitize legacy video formats in-house or outsource them to vendors can be hard to come by for many libraries. Furthermore, while Section 108 outlines fairly clear criteria for what it permits, the process of performing due diligence determinations and documenting compliance with the law does take time to design and implement within an organization. All institutions, regardless of size, type, or affiliation, can benefit from collectively tackling and sharing in the labor of copyright research and digitization related to Section 108. This un-siloing of preservation efforts, fortunately, has been undertaken by the Academic Libraries Video Trust (ALVT).
ALVT is a membership organization that provides an online catalog and clearinghouse for legacy video materials in library collections. The catalog contains bibliographic records for thousands of VHS and other video materials, including information about their availability on non-obsolete formats and other findings relevant to Section 108. While anyone is free to browse the catalog of records, the ability to create new records and upload or download Section 108-compliant digitized video material is limited to members of the organization. Membership provides both a secure storage environment for libraries to keep their own digitized video materials and the ability to download files to replace materials in their own collections. In practice, this means if an institution owns a VHS copy of the Hollywood series, they can head to its record in ALVT and download all 13 episodes which have been digitized by Florida State University to replace their own copies. Alternatively, if an organization is just engaged in research about the copyright status of works in their collection, existing records in ALVT’s catalog can save precious time and resources.
Joining ALVT will help any library trying to manage the pressing “magnetic media crisis” and ensure its patrons will continue to have access to their important collections housed on legacy video long after the tapes have succumbed to wear and decay. If your institution is interested in learning more about ALVT and the benefits of membership, please contact the organization.
The Hollywood series is just one gem in the mountain of important educational films, documentaries, and other motion pictures languishing in library collections, bound to obsolete formats by any number of constraints. And while so many of the films from the silent era celebrated by the series have been lost to time and neglect, Section 108, ALVT, and the dedicated labor of librarians, archivists, and other information professionals can help prevent these sorts of staggering losses in the future.
