Ephemera and the Public Domain

On January 1st, 2019 the above image, best known as The Great Wave (c. 1829-1832) by Japanese artist Katsushika Hokusai entered the United States public domain in a figurative wave of previously copyrighted works held hostage by the 1998 Copyright Term Extension Act. What’s interesting about Hokusai’s work in particular is that it was never meant to last even this long. The Great Wave is a type of woodblock print made on cheap, flimsy paper called ukiyo-e, which translates as “pictures of the floating, fleeting, or transient world.”

Ephemeral images of an ephemeral world

My gateway to the public domain was through Mystery Science Theater 3000 (back in the Joel and Mike days). The shorts that occasionally played before the schlock feature were stagey social propaganda from the 1940s and 50s, recontextualized as high camp. Later in high school, I learned about Rick Prelinger after catching a presentation of his mental hygiene film collection in New York City. This was the guy supplying shorts to MST3K, and he built a vast archive of such material that was free for public use. Prelinger called these works “Ephemeral Films”, made for specific purposes at specific times, such as advertising, educational, and industrial use.

To their creators, these were films without worth beyond their initial purpose, and so they fell into the public’s lap along with works whose copyright had naturally expired or never existed — a progressively smaller pool as corporations extended their reach and altered copyright laws for their own benefit. Prelinger, on the other hand, warmly encouraged the public to download, transfer, share, and reuse the archive to whatever purpose they saw fit.

As a programmer at Spectacle, a volunteer-run theater in Brooklyn, New York I tried to take his advice: our ongoing Ephemera series freely remixes and edits films from the Prelinger Archive, lumping them together on a theme. My most straightforward effort was Going To The Chapel, a narrowly focused pre- and post-war look at serious relationships and marriage. The footage was nearly all public domain, save for some home movies of weddings stitched throughout. People are surprised to hear home movies aren’t automatically public domain — they usually fall in the legal category of “unpublished works”, meaning they’re automatically protected for 70 years after the death of their creator.

In the very common case where the creator is unknown, the protection lasts for 120 years after creation. Right now, that means only home movies whose known maker died before 1949 could possibly be public domain. And yet, I used them anyway — copyright enforcement hinges on the holder challenging use, or even noticing in the first place. With orphaned films, the odds are slim enough to justify bringing such gems to the public’s attention.

For Safety First! I dug deeper into a specific genre: the safety film, in which some shortcut-taking ne’er-do-well veers from the established path and suffers dire injury or death for their carelessness. This meant sourcing items both in and out of public purview — while several of the films were public domain, many were also created and licensed out by companies who specifically sold VHS tapes or DVDs at industrial rates, or to license and rent. These rates are nigh-impossible for an individual (or microcinema) to afford, and my attempts to explain the concept of “ephemera” to the films’ rightsholders merely resulted in confusion.

Turns out showcasing ephemera before it’s ephemeral doesn’t scan with creators. One currently operational company in particular goes full “scared straight”, using realistic gore and brutal manglings to highlight the importance of proper procedure; their films license at no less than $900 and they refused to budge for a three-time screening. Luckily I’d ripped best-of compilations from their YouTube page months earlier — a highlight reel of ripped arms, crushed legs, and in one glorious moment, an exploding oxygen tank that rips across the factory floor, smashes through a foreman’s office crushing his head against the wall, explodes and lights the entire room on fire. 

Several program attendees came up after the screening and said they’d been shown the entire film at work, and after seeing the severed finger warning, never wore a wedding ring to work again. I’d used the cover of my then-Ivy League employ to get similar tapes via interlibrary loan — the sheen of educational use wasn’t exactly a lie; this is educational material inaccessible by design, yet intended for layman viewing. Removing it from a purely instructive setting and contextualizing it among similar examples revealed how closely they paralleled the horror films of their respective eras.

The problem with working within the stringent laws of public domain is not only that the goalposts keep moving, with three new laws proposed to pass for 2019 alone, but that current statutes — 70 years after the death of the author, or in the case of a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first — mean elements finally becoming public are at least two generations removed, and when it comes to allocating preservation funds, the balance could tip in favor of materials perceived as more widely accessible. When these new works are freed from their time capsule to find a new audience, does it actually happen? The way people talk about movies online you’d think they didn’t exist before 1976.

Ephemeral elements of a digital era

The public gets tiny sops to our access — 1994’s Campbell v. Acuff-Rose Music Inc gave some wiggle room for permissible use, both in asking whether a new work was transformative — an entirely new dimension of consideration — as well as opening up the possibility that even commercial and for-profit intents could still be considered fair use. While that won’t keep litigious companies from bringing down the hammer, it’s a sliver of hope towards altering the general American mindset that our cultural capital isn’t ultimately ours (something I wrote in my Johann Lurf piece).

The present-day problem is that our era’s ephemera might not survive to reach public domain. The majority of it is mediated by third party platforms like YouTube, where over 500 hours of video are uploaded every minute, with no physical or tangible elements to be left behind. The scattered remnants of Vine are still at the whim of Twitter. The Internet Archive can only crawl sites that allow it, and digital archiving is still nascent. It may be that the only existing record of our era’s uploaded videos will be films like 2016’s The Road Movie, a theatrical release of carefully compiled dashcam footage from hundreds of cars. With the future increasingly uncertain and corporations looming ever larger over everyday life, these evanescent snippets of humanity are more important than ever.