Paolo Cherchi Usai (George Eastman House)
"What is an Orphan Film? Definition, Rationale and Controversy"

University of South Carolina September 23, 1999

I am reminded what happened about two years ago at Eastman House, when one day I opened the side door, and there right in front of me were three piles of films, very carefully stacked. There was a message written on a piece of paper, covered by a stone: "Take good care of these films. I am moving to South Carolina. Hope they are of use to you." No signature. The films were 16mm prints made approximately in the 1920s. They were arranged in alphabetical order. They were not crying. They were in great shape. So we took them in. Took them to the registrar's office and tried to find out what they were and what views we could do of them.

So this is the most obvious instance of orphan films. They couldn't be more orphaned than that. In fact, the very term 'orphan films,' to the best of my knowledge, was used for the first time in a public context by David Francis [chief of the Division of Motion Pictures, Broadcasting and Recorded Sound at the Library of Congress; former head of the National Film and Television Archive at the British Film Institute] in 1993 at the time of the Los Angeles hearings for the National Film Preservation Plan. It was at that point the term orphan film became officially part of the archival language and the scholarly language in general. It is not the first time that David Francis has come up with some very powerful definition. What is powerful about the term orphan film is not only its effectiveness, it is something that is fairly easy to understand without much explanation, but also its emotional resonance: 'Oh, let's save these poor, poor orphan films.' That's what potential donors say, even those who know nothing about film.

What these people don't know, and what we tend to underestimate sometimes, is the fact that under this broad term orphan films, there is a very complex reality which I will try to briefly describe. I will do it first by pointing out that as in all good Dickens novels and all good orphan stories, when it comes to orphans, there is one mother, but there is normally more than one father. In our case the mother will have to be defined as the negative from which the orphans were produced. As for the various fathers, the producers, the bad guy, the filmmaker (s), and sometimes the archive. When I refer to the parents, which I will do often, I would like you to keep in mind this. The negative of the print, the producer, the filmmaker and the archive.

So in general, what we call orphan film is quite simple. Earlier today Karen Lund [of the Library of Congress and the National Digital Library] defined orphan films as films in public domain and mute, which is great -- again Dickens, the poor things don't even talk.. According to Annette Melville and the National Film Preservation Foundation, an orphan film is a film outside commercial preservation programs and newsreels, silent films, avant-garde works, documentaries and others.

This is all true indeed. But this is a very small tip of a huge iceberg. In order to agree on what is an orphan film, we should first agree on what we mean by orphan. I will start with a little bit of history by saying that, as the story goes, in the first chapter of our novel, in the beginning, all films were orphans. They were all orphans because from the beginnings of cinema to the summer of 1908, children were sold. Producers would make the films, make prints, and sell the prints. From the moment you owned the print, you could do whatever you wanted with it. You could cut the orphan into pieces, force the orphan to labor, create your own film. Once you bought the print, the producer didn't want to know what was happening to it. This state of things ceased to exist when a large group of film producers, manufacturers, distributors, exhibitors decided that this had to end and there was a better way to exploit children. Instead of selling them, let's rent them out. Which is exactly what happened. The date of 1908 is a crucial date exactly for this reason. From that moment you could get the print from the production company or from the distributor. You could show the film, but the film was supposed to go back home to their parents. If you didn't do that, there could be trouble.

Here we have the first great divide. Films made before 1908 are technically orphans. The fact that they were produced by Pathé or Edison or Biograph didn't make much of a difference in terms of their survival. Afterwards, the world became divided into big categories. The possessive parents, those who absolutely wanted to have their children going back home, and those who would have perhaps care or perhaps not, or think about it or maybe get the prints back home after a while or if they were going too far away just forget about it, such as in the case of the films sent up to Dawson City, Alaska and never returned and actually buried in a swimming pool for 60 years.

In both cases, what provokes the so called orphan phenomenon is what I would call the demographic explosion of orphans. A demographic explosion that derives from the decision of the producer to manufacturer and distribute a fairly large number of prints. So how many children were generated by these parents? The number goes from zero to several hundred. In some cases, a negative was made but no print was actually produced because no one wanted to see the film, such as in the case of some American Mutoscope and Biograph films. In other cases, an average of 80-120 prints, or in the most successful cases, several hundred prints. For example, some Chaplain films where even before the film was completed over 130 copies were already produced. Instead of trying to describe in detail the circumstances of this demographic explosion, I'd like to show you some sort of very simplified model of how this demographic explosion occurs. [Diagram reproduced in Usai¹s book THE SILENT CINEMA, 2000] What you see there at the top is Mother, a negative of a film made, for the sake of argument, in 1915, and for the sake of argument we will assume that 9 children were generated, 9 prints. Over the years this first generation was the starting point of further generations. Print #3 was used in 1931, and this is an imaginary example. In 1931 reissue of a film which was originally tinted and toned, but the new negative made from print #3 was a black-and-white print with a sound track, and five prints were made from this negative. In 1948 someone found print #11 made another internegative and produced three prints. We are not interested in knowing why these prints were made. In 1952 someone else found print #13 and decided to make another internegative unbeknownst to the guy who made the internegative in 1948 and made five more prints. Then nothing happens until 1978 when someone, let's say a collector, finds print #8 from the first generation and decides to make a 16 mm reduction negative. With the same color, although not with the same technique, a color reproducing the tinting and toning of the original. From this negative #5 we have two prints, prints #23 and #24. Now from the point of view of the archive what really matters is what print ends up in the archive's vaults? Let's say we get print #22. We at Eastman House find print #22 of this film. We realize that no other print of this film is known to exist; and therefore, we take this orphan and cure him and feed him, and we make sure he finds the most appropriate home. Automatically this means we have produced at least 23 orphans, plus five other orphans of a different form. So, we tend to behave as if these other prints almost never existed. If we happen to find some other print that will be better, because we will compare the two orphans, and maybe create a new orphan in better shape. The other prints disappear from our mental horizon.

Forget about the dates of this diagram, and imagine that all these generations were produced before a certain date, a date at which a public domain film becomes a film under copyright. Or let's assume the copyright for this film was not renewed. In this case, all these prints are orphans, but they are orphans in a different sense. They are orphans because nobody can claim legal ownership on them. There is no parent who can actually demonstrate with a piece of paper that this orphan belongs to me. It is itself a complex concept. Saying that a film is in public domain or isn't describes only one part of the reality.

In fact, we could at least mention three possible realities within this category. The first, most obvious one, this film is an orphan because the parents are just dead. There is no more production company and the filmmaker is no longer living, which may open an interesting strand of conversation about what is the estate of the filmmaker going to say about the status of this orphan? There is a second possibility, as important as the first. The parents are alive but they are very old, so old they have forgotten they have these children, and when you ask the owners about them, they may not acknowledge. . . . . inventories. These are orphans as well and are likely to remain orphans for reasons I am going to discuss later. The third possibility is that the parents may be unknown, both from the point of view of who produced it and who actually made the film. This may open another interesting case, the case of people who realize that the parents are completely unknown and they show up and say "I am the parent of this child and I want tutelage because it's mine and I can prove it. They never do, but some how they claim that this is their child. This is what "public domain" may mean. Let's now consider the case where the parents are alive and well, young and wealthy, but they don't care. They don't care because they think they have already more beautiful children to take care of. Adoptive parents like to have a child who is tall, blonde, blue-eyed, and here you have this rotten thing that is decomposing and all scratched. I don't want that. So, we don't want this orphan because we have a better print. Another print of Gone with the Wind completely scratched on Eastmancolor? No, I don't want this. It might be mine, but I don't want it. Stay away.

Second, this might be a nice print, but I have made my own internegative and I have better prints. I certainly don't need it.

Third, I am the parent and I found the orphan, but my house is too small. I don't have room for these children, so could you please take this child and keep it for me? This happens often, and that's why many production companies know very well what archives have but have no interest in reclaiming the prints because in the meantime there was an adoptive parent taking care of the orphan.

Finally, we have those that become orphans because of what we defined as forced labor. Whatever is not useful for forced labor can become an orphan. The production company may realize this is our film, but how much money are we likely to make? No money, why take the child in my home? So even when producers know these are their films, they are likely to become orphans. A revealing and interesting shift happening today has to do with the renewed interest of production companies in this kind of orphan because of the increased awareness of the fact that these apparently useless children can be used to make money. So the stock footage business is what provoked the resurgence of the concept orphan films. Orphan films may be good for money.

An overlapping element over all these categories is the fact that an orphan might exist because there were too many siblings within a single generation. The mother died of exhaustion. If you look at a print of Manhattan what you see is ectoplasm where you can recognize skyscrapers and other forms and titles, but this is a print that no one how to take care of because it is presumed that someone else has taken care of this film somewhere else. Taking any Charlie Chaplin film and I will show you hundreds of orphans resulting from this phenomenon. You think someone else has taken care of the orphan. As a result no one takes care of these. Therefore, there are very few nitrate prints of Chaplin films, in archives or elsewhere.

Now that we have a better idea of what happens to orphans, let's talk about the life of the orphans. What happens to them? From an archival point of view, orphans are easier to find than legitimate children, and this is because no one reclaimed them. Since 1908 whatever film was produced by a company still surviving and caring for its children, this print had to go back to its owner. On the average, when

or with parents unknown. They are likely to be orphans also because parent production companies had quickly established some system in order to recognize their children (a necklace around the baby) -- from the logo of the production company on each intertitle, to the two or three systems used by the Disney company in order to recognize their vintage prints from illegal reproductions.

Both inside and outside the archives, parents sometimes change their mind and claim the children years later. As all archivists know, some of these parents end up pressuring or harassing archives to regain possession of the orphans. The best argument that archives can bring forward is the fact before the parents showed up, archives had to care for the orphans and had to preserve them and put them under appropriate environmental conditions.

Even the best use of the orphans can be damaging to the life of the orphan films. This is where we find the most frequent instances of parental abuse. We are dealing with poor parents, who do not have enough money to properly care for the orphan.

Outside the archive we have the case of home movies. The movies that become orphans as soon as their owners, parents, filmmakers, producers, exhibitors decide that they are no longer of use and throw them away, or make a VHS tape copy and discard the originals. However well known, these are not the only cases. Take the case of substandard formats. Prints of films that are known to exist in other forms and are neglected because their format does not correspond to what is perceived to be the best format.

When the films get restored, they are subjected to another form of exploitation. That is the orphan because the potential donor is not interested in a specific orphan. This is creating a powerful subcategory of orphans, orphans that may or may not be in public domain, but will never be restored for this reason. Public agencies are not interested and private donors have no interest. Some of these films are more unhappy than others because they are not only uninteresting, they are also foreign films.

Finally, at the bottom of the orphans is the unidentified film, and I think we tend to underestimate the number of unidentified films that are in archives. These films are orphans from all possible view points. People don't go to archives to see things without a name. They want to know what they are looking at. The look at unidentified films by mistake because a location number was wrong or they have time to waste and a sense of adventure. Archives are not going to money into the preservation of these films either. In some archives policies there is the provision that you are not going to put money on the preservation of something that is not identified or something that is not complete. So orphans have to be complete.

As if this wasn't enough, we come to the last chapter of the orphan story, the medieval digital age. The digital age is going to create a new massive generation of orphan films, and because of the digital age, a cyclical conception of history is going to find a pretty good justification because all the prints will be orphans more or less in the same way they have been orphans before 1908. The will become orphans because the owners, producer filmmakers and archive, will think transferring the films on a digital medium will make the orphan more or less useless. Best case, some archives may choose to keep the orphans in a vault without touching them. Unless another new form of digital migration will make their use necessary again. This has to do with the commercial exploitation of the films and also the scholarly use of the film. The very fact that it will be no longer necessary to watch actual film because we will be able to look at them in their digital form. I'm not saying digital is a bad. The result is that as soon as the industry stops producing prints there will be only a mother, a child; and the mother will be the camera negative and the child will be color separation, or CRI, or an internegative or there will be nothing else.

What we have touched here is at least a four-fold concept of orphan film. There was the legal definition, having someone who can demonstrate in legal terms that he owns the film. Then there is the authorial definition. The presence or absence of a filmmaker. This is not a very relevant category in this country today. Then we have the material definition of orphan, regardless of its copyright status. And finally, the archival definition, that fact that whatever the other three categories are, there are-- even within the archive -- films that are considered orphans.

From the point of view of archives, we now have a greater responsibility than ever. Millions of orphans, the parents always away for business, except for coming home when they need money.

I don't like the term film archive. It doesn't really describe the reality of what is going on in this place. Why not film orphanage? Here is an alternative for you.