IT'S A WONDERFUL LIFE AND ARCH OBOLER

It's usually at this holiday time of year that I remember the endless showings of It's A Wonderful Life on all the local television stations in the mid 1970s. The story goes like this: due to a clerical error, the copyright to the film was not renewed and everyone was convinced that the film entered the public domain and TV stations everywhere could play it without having to pay anyone for the privilege. And what a joy it was to watch the film endlessly during the holiday season, because this was still at a time that Betamax/VHS was in its infancy.

By 1981/82, I was an entertainment lawyer, in that my clients were in the entertainment business.  I was retained by a New York specialty record label Nostalgia Lane and Arch Oboler, who was the creator, writer, director of the famous 1930/40s radio series Lights Out on NBC. Arch actually owned and properly copyrighted the scripts and licensed its use to NBC (although he had taped copies of the broadcasts, he did not claim to own the copyright to the taped copies of the broadcasts, just the scripts). In the late 1970s, Arch licensed to Nostalgia the right to use his copyrighted scripts to market the taped copies of the broadcasts on records and tapes, etc. but another competing company was claiming the taped copies of the broadcasts were in the public domain because NBC never filed or renewed any copyrights to the broadcasts. We commenced a copyright infringement action. The Defendant argued that Arch's radio shows were in no better a position than It's A Wonderful Life and it sure did appear that the industry was accepting this position: if a film/TV/radio broadcast did not have a copyright, anyone can copy it and market it just like It's A Wonderful Life.  

Many times, I spoke to Arch and even visited him at his home outside Los Angeles. He was something out of old Hollywood with plays on Broadway, TV, film (the first 3D movie was by Arch). He and I would discuss his case and the dilemma of other writers like him.  Arch argued that neither his radio series Lights Out or It's A Wonderful Life was in the public domain because the script is the original work and everything else derives from it (like Arch's radio shows, the film It's A Wonderful Life is a derivative work of the copyrighted story The Greatest Gift). Whether it is a movie or a radio show or a TV show, as a derivative work, the consent of the copyright holder of the original work script is required. And although a derivative work can be separately copyrighted, if that copyright expires or is otherwise thrown into the public domain, that does not affect the copyright of the original work script. 

It was a vexatious litigation and trial with the defendant raising some incredulous arguments as well as insisting on the validity of the It's A Wonderful Life defense; but the judge ruled that a derivative work still requires the consent of the underlying original work so that the failure to copyright or renew a derivative work will not affect the copyright of the underlying original work.  The judge even awarded Arch punitive damages. The press was made aware. Anyway, as a side note: on Defendant's appeal, the Second Circuit reversed Arch on the issue of punitive damages (but on remand, he wound up with the same amount in another form). And so Arch Oboler added one last achievement to his name as he will also be remembered for one more thing - his decision is still cited to this very day for the proposition that punitive damages are presumptively not available under the Copyright Act of 1976. Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983) cited recently in Freeman v. Deebs-Elkenaney, 22-CV-02435 (LLS)(SN) (S.D.N.Y. Feb. 24, 2023). 

Oh yes, eventually the It's A Wonderful Life copyright mess was sort of cleared up and there are no more endless public domain showings (see The Nation - Whose “It’s a Wonderful Life” Is It Anyway?). On the other hand, Arch's works may now be in the public domain as he passed in 1987 and works, some of which were the subject of his litigation in 1980s, are freely available online.