Re: Welles's "Touch Of Evil"

James Rogers <jetan[_at_]ionet.net> wrote:
>
> ... prior to Orson Welles's death, he left a very detailed set of
> notes specifying how he would have cut the film TOUCH OF EVIL. A
> version of the film has been edited in accordance with his wishes and
> is now slated for release. The new edit apparently adds no unreleased
> footage and subtracts nothing other than some of the music in the famous
> opening shot (probably the longest and most complex in film in history).
> The other changes are entirely a matter of the placement of the shots
> in relation to one another.

Actually, the opening shot of Robert Altman's THE PLAYER, which consciously parodies the famous TOUCH OF EVIL opening, is close to three times as long, and vastly more complex. Of course, Welles didn't have a steadicam, and his shot is loaded with meaning and significance, while Altman's is just an elaborate sight gag. But back to business:

> The question therfore is... is the new cut a separate derivative work
> with protection dating from now, or is it simply the same thing as the
> old flick?

It would be, in my estimation, a derivative work, but the only protection "dating from now" would be the protection afforded the previously-unpublished materials. Since none of the actual shots are previously unpublished, the only "new" material afforded copyright protection as a derivative work would be the "new" ARRANGEMENT of previously published shots---a fairly thin copyright. Of course, since you can't get the new without getting a lot of the old as well, an interesting situation will be created when the film enters the public domain in its original 1958 version, but portions of the film that were in a "new arrangement" in 1998 remain copyright-protected. Rather like the awkward situation that was created when IT'S A WONDERFUL LIFE entered the public domain, but p.d. videotapes had to be withdrawn from the market when it was discovered that the music in the film was still protected by copyright.

> How has this issue been treated in the past, as in so-called
> "director's cuts" available on videotape, the STAR WARS reissue, and
> the current digitally enhanced GONE W/ THE WIND?

To the best of my knowledge, the issue has not come up; but you can bet the IP attorneys at Warner Brothers, MGM/UA, Paramount, etc. are thinking about it.

> Does it make any difference that the new edit only realizes the
> director's original intent?

I don't think author's intent has anything to do with what is protected and what is not; but even if it did, in the US the production company, not the director, is the author and copyright owner of a motion picture.

> In the coursepacks thread, I have expressed my distrust of
> editorial function providing an extra term of protection. However,
> film editing cuts pretty close, in my opinion, to the core of the
> issue...

Nice turn of phrase!

> but there seems no logical reason why film should be treated diferently
> than Shakespeare's prose. ... Maybe this is a "no-brainer" but I would
> be curious to know what you folks think.

Not a "no brainer" at all, but a stimulating question. I'll be interested in the thoughts of others.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Thu Jul 16 1998 - 17:23:09 GMT