Gregory Lukow (UCLA Film and Television Archive)
"The Politics of Orphanage: The Rise and Impact of the 'Orphan Film' Metaphor on Contemporary Preservation Practice"

A paper delivered at Orphans of the Storm I, September 23, 1999



I should start by saying that I am not out to define the term orphan film preservation. That implies pinning it down. I don't want to pin it down. I want to expand it out as a matter of public policy interest. Rather I am here to do more of a historical meditation, perhaps even a historical critique, of the rise of this term, which is now very much a part of the rhetoric of our field. My goal is to examine what orphan film preservation means. It certainly is not intended to limit the thinking about orphan films as things before 1923 in terms of strict public domain.

In the early 1990s concept of the orphan film emerged as the dominant metaphor within the moving image archival community for use in positioning film preservation as a legitimate enterprise on the national public policy cultural agenda. As such, the undeniably wholesome and heartfelt evocation of "Save the Orphan Film" effectively replaced the early 1980s credo of "Nitrate Won't Wait," an unofficial field-wide motto. In both instances, these mottoes were designed to serve as a totemic plea to both the general public and to potential funders alike. By the end of the 1980s the rallying cry of "Nitrate Won't Wait" had disappeared from everyday preservation discourse, having lost its credibility as a legitimate appeal for specific historical reasons. Namely, gradual recognition was brought about by new research that indeed nitrate film can wait and that all film material, whether nitrate or acetate or even now the first rumorings of polyester are potentially equally at risk in the absence of proper storage.

The contemporary turn to and embrace of the orphan film metaphor arose within its own specific historical circumstances and under unique public policy pressures. The use of the term orphan film was nonexistent within the archival field prior to the early 1990s. This situation changed when the term was brought into the linguistic foreground as a result of the passage by Congress of the National Film Preservation Act of 1992. This Act was fashioned in direct contrast to its predecessor, The National Film Preservation Act of 1988. The earlier 1988 act was the first piece of US federal legislation ever to contain the word film preservation in its title. In reality the 1988 act had almost nothing to do with actual film preservation. But this was ironic only on the surface until one understood that the roots of the legislation lay in the artist rights controversies of the late 1980s, controversies centered then in the now near-forgotten debates over computer colorization and film labeling.

The 1992 Film Preservation act did finally have something to do with film preservation. The 1992 act was designed to implement a fieldwide study and National Planning Initiative on film preservation, a program intended to establish a new mechanism for increased preservation funding support including federal appropriations. This mechanism was later realized with the passage of the National Film Preservation Act of 1996 and through it, shortly thereafter, through the establishment of the federally chartered National Film Preservation Foundation. To secure congressional support and federal matching dollars for this new foundation, US lawmakers needed reassurances regarding a crucial public policy dilemma that had never been confronted within the moving image archival community. That is, the prima facie concern of utilizing public funds for the preservation of moving image materials whose rights of intellectual property and commercial exploitation were still maintained by private sector corporations, regardless of whether or not the materials themselves were held by or the physical property of public or non-profit cultural institutions. In other words, what was needed prior to securing congressional support for any national preservation foundation was the drawing of a clear boundary between the types of moving image material [AUDIO is LOST on TAPE] rights holders.

At base level the orphan film metaphor eliminated a political problem. Its political utility came in the way it serves to identify and describe types of moving image material that qualify for federally recognized chartered or otherwise supported preservation funding. Within the context of the publication of the seminal "Report Film Preservation 1993" by the Library of Congress, the concept of the orphan film was first proposed and strategically reified as the new public policy metaphor. In its follow-up report redefining film preservation in 1994, this new metaphor enabled the Library to navigate past the policy contradiction and proceed with new forms of federal preservation funding.

An earlier attempt was set forth during the early years of the Reagan administration by that administration's first appointed chair of the National Endowment for the Arts, Frank Hodsol. To the surprise of many, the Arts Endowment embraced film preservation with more passion than any other activity on the Endowment's agenda. But the Endowment was also motivated to articulate the federal governments qualms about appropriating public monies to preserve movies owned by Hollywood studios. It was the Endowment's goal to avoid duplication of effort, another familiar motto from an earlier era in the archival field, that have been surpassed by the orphan film process.

At that time, the early 1980's, the NEA's policies led to the establishment in 1983 of the National Center for Film and Video Preservation at the American Film Institute. It was an agency initially intended to serve as an instrument of national coordination that would assist in this effort to avoid duplication of effort, most specifically through one of the key programs, the National Moving Image Database (NAMID for short). The NAMID database was an NEA-mandated brainchild and insofar as it was designed as an earlier model for sorting out public and private holdings and avoiding duplication of effort, it can be seen as a conceptual precursor to the role that the orphan film metaphor has come to play in contemporary archival practice. The fact that NAMID failed to involve private sector collections in any meaningful way within its holding database (it did gather a lot of public sector information) can be seen today as in no small way responsible for the need for and the rise of the orphan film metaphor.

To return from this historical aside to our consideration of the metaphor itself as a by product of its political utility, the orphan film concept has emerged as a valuable device for promoting many types of moving image collections and materials that did not receive sufficient public attention. These materials are the documentaries, newsreels, avant-garde, and independent film, home movies, amateur and local productions, educational and industrial shorts, et cetera. The orphan film metaphor has been largely responsible for putting these moving images on the map of our cultural heritage. Despite the positive and productive "Save the Children" connotations of the orphan film, the question remains as to whether or not there are attendant costs to the public archives or to the public interest that emerges in the wake of this new metaphor. Is it a double edged sword?

It is important to acknowledge the definition of an orphan film is bound up within the discourses and legal distinctions of US copyright law and the various revisions to these laws that have occurred in the past decade. Those revisions have been brought about first by NAFTA then the GATT treaty and more recently the 20-year term extension signed into law in October 1998. The definition of the orphan is not always or necessarily a simple matter of declaring a specific film title to be unpublished or never copyrighted or not renewed or in some other way having entered the public domain. Much too often such determinations are elusive at best. Both the legality and the politics of orphanage need to be defined so the key criteria is not that a public archive can determine in all cases films or footage that are guaranteed to be in the public domain with no rights holder legally on the books. Rather the initial key criteria should be that there is no private sector entity actively responsible for such materials. Purely in terms of historical chronology, what if a given set of films were clearly still within their term of copyright, but the corporate rights holder no longer exists or was dissolved without a clear disposition of assets, or the materials have otherwise fallen through the proverbial cracks. Such situations do not describe rare occurrences, but rather the classic cases of thousands of films abandoned or held against debt in laboratories across the country.

Conversely, what if there is a clearly identified corporate rights holder, but one which over time has changed its business activities or demonstrated no involvement with its film holdings or otherwise disavowed any interest in taking responsibility for their preservation. Perhaps more pointedly for the moving image preservation community as a whole, the ultimate and most powerful impact of the politics of orphanage has been to reinforce in a new way the historic division of labor between the public and private sector archives.

On the one hand, this division of labor provides the challenge and opportunity for vital new public-private partnerships of the kind embodied in recent years by the Sony Pictures Entertainment Film and Video Tape Preservation Committee. On the other hand, where private rights holders are less motivated to such collaborative partnerships with the archives, this division of labor keeps public sector archives at arm's length from dealing with materials they previously might have more proactively sought to preserve--materials for which the compelling case can be made that they should remain within cultural institutions. The division of labor fostered by the orphan film metaphor should not be limited to the simple sorting out of who, the public sector or the private sector, will preserve what materials under the assumption that it doesn't matter who does the preserving as long as the materials are preserved.

Another relevant division exists: that between raw preservation and preservation within cultural institutions, whether archives, libraries, museums, historical societies, etc. This distinction is between asset protection within the context of commercial re-purposing and exploitation and, on the other hand, cultural preservation and access in the context of national or local institutions with public interest mandates.

While the term Œorphan film¹ evokes the emotional appeal of saving the individual film, television or video Œchild,¹ a variation on this metaphor is that of the Œorphan library¹ or orphan collection. Orphan library I use not in the sense of a building, but in terms of all of these materials that are out there from orphan producers. It is perhaps only by viewing the politics of orphanage and these more expansive terms that one can begin to address both the scale and contradictions within the continuing problem of orphanage while also anticipating the new cultural canons that will be established through their adoption or forever lost through their abandonment.