Hollywood vs. Evan H. Foreman
The first real salvo in the protracted legal battle between the major film studios, on the one hand, and film dealers and collectors, on the other, was fired, oddly enough, not in Hollywood, but far, far away, in Mobile, Alabama. As described by Evan H. Foreman, owner of 16mm Filmland, on the front page of his 1972 catalogue—a bulletin advertising used prints for sale—this is how it began:
On August 19, 1971, four deputy U.S. Marshals, two film company attorneys and one film company private investigator entered my premises at 260 N. Jackson St., Mobile, Ala., and seized six of my film prints as called for by a Writ of Seizure issued by the U.S. District Court in Mobile, as part of seven simultaneous lawsuits brought against me, without notice by American-International Pictures, Inc., Columbia Pictures Industries, Inc., Metro-Goldwyn-Mayer, Inc., Twentieth Century-Fox Film Corporation, Walt Disney Productions, Universal City Studios, Inc., [and] United Artists Corporation. The Court also issued a temporary restraining order preventing me from dealing in any of the used film prints copyrighted by the plaintiffs.
Hollywood had declared war on Evan H. Foreman.
The civil case that arose came to be known as American International Pictures, Inc. v. Foreman, and has been described by legal scholar Francis M. Nevins in the Cleveland Law Review as “the most important civil precedent with respect to the copyright aspects of the sale of film prints to collectors.”8 The Foreman case came nearly three years before the widely publicized film busts of 1974–1975, including the seizure of Roddy McDowall’s collection. In many ways it anticipated the key issues that the FBI, the Justice Department, and the MPAA would bring to bear against dealers and collectors, namely, the right of the major studios to exercise their legal copyrights vs. the protections guaranteed to dealers and collectors under what is called the “first sale doctrine.” This little-known but quite important principle of law was first established in a 1908 Supreme Court decision Bobbs-Merrill Co. v. Straus.9 It guarantees that if you legally purchase a copy of, say, the latest Stephen King novel, once you read it you can sell it at a yard sale or on eBay, Amazon, and so on. You can also loan it, give it away, or destroy it if you choose: that particular copy is now yours, although you don’t own the copyright to the book, and you aren’t allowed to reproduce it. The first sale doctrine applies to just about any kind of media that can be copyrighted and sold: CDs, DVDs and Blu-rays, or—in the early 1970s—used 16mm film prints like those being offered for sale by Evan Foreman in his bare-bones, eight-page catalogue featuring such gems as Law of the Range, starring Johnny Mack Brown, Thunder in the Pines, with future Superman star George Reeves, and the delightfully alliterative sword-and-sandal flick Hercules Against the Sons of the Sun.
The man at the center of this lopsided David-vs.-Goliath struggle was an unlikely combatant. Born in 1928 in Atlanta, Georgia, and now well into his eighties, Foreman continues to send out e-mail broadsides to anyone who’ll listen about copyright issues. His father served as a captain during World War I. “He couldn’t see because of the poison gas,” Foreman recalls. “It fogged up his goggles, so he took his gas mask off. He led his men across the river but at a high cost to himself.” The price Foreman’s father paid for his heroism was indeed severe: he spent over twenty years in Veterans Administration hospitals, leaving Foreman’s mother to raise their son on her own. Foreman became fascinated with the movies at the age of eight, after a boyfriend of his mother’s gave him a 16mm projector and a Bob Steele short in which the B-western star appeared through movie magic to catch a knife in mid-air. “I was living in Mobile, Alabama,” he recalls, using the Deep South pronunciation “Moe-beel.” “My allowance at the time was twenty-five cents a week, and I could get two streetcar tokens for fifteen cents or one for eight cents. I’d get on a streetcar and have a dime left over, and that car would take me four miles to the heart of downtown. I’d go to the movies at the Empire Theatre, and that dime would buy me a cowboy movie with Buck Jones, Gene Autry, and Roy Rogers.”
After graduating from the Todd School for Boys in Woodstock, Illinois (whose most famous alumnus is Orson Welles), Foreman studied premed and psychology at UCLA in Los Angeles. He seems to have had a wandering spirit: after college he worked a colorful variety of jobs, including mining gypsum in the hot Nevada desert, installing Western Electric telephone equipment, and prospecting for gold in the Superstition Mountains in Arizona. He sounds a bit like Humphrey Bogart’s Fred C. Dobbs character in The Treasure of the Sierra Madre.
In the mid-1960s Foreman began shooting his own amateur productions with a Bolex camera and soon after started 16mm Filmland, rejuvenating beat-up prints that he purchased cheaply from other dealers like Gaines Sixteen Films Co. in Van Nuys and reselling them to collectors. “I got into it because I wanted to see movies,” Foreman says now. “I was pretty limited in what I could find. There was a local film rental library—Mobile’s the only port in Alabama. The library furnished films to merchant steamers while they were at sea.” His prices ranged from $58 to $150: “The $58 films would be a B film in poor shape that had some pretty heavy cutting to fix the sprocket damage so it wouldn’t flip out of the gate. One hundred fifty dollars would be a decent film in decent condition.” By his own admission Foreman never sold new prints, and he never made illegal dupes like some other dealers.10 Even by the standards of film dealers in the early 1970s, Foreman’s was a tiny operation, far from the limelight of Hollywood.
But he’s the man the studios chose to go after. In the complaint lodged against him, the studios asserted that “the defendant has offered to deal in specific motion pictures copyrighted by the respective plaintiffs and that he has sold prints of these pictures. These actions, according to the plaintiffs, constitute an infringement of their copyrights because they were without authority from the plaintiffs.” Among the films he was charged with acquiring and reselling were Secret Agent Fireball (AIP), The Devil at 4 O’Clock, The Gallant Blade, and Miami Exposé (Columbia Pictures), Anastasia and How to Marry a Millionaire (20th Century Fox), Big House U.S.A. (United Artists), Abbott and Costello Meet the Mummy and Bride of Frankenstein (Universal), and Emil and the Detectives and The Sword and the Rose (Walt Disney). It’s worth noting that the complaint filed against Foreman by the majors was a purely civil case, as opposed to later film busts like the “U.S. Indicts 16 in Movie, TV Film Pirating Case” in 1975, where criminal charges were leveled against my writing partner Jeff, Peter Dyck, Woody Wise, and other dealers.11 Today, Foreman insists that the studios were trying to intimidate him with their tactics: “They just roll over you like they’re using a tank and you’ve got a bow and arrow. Word gets around and people get scared. It’s film Nazis, that’s what I call ’em.”
If the studios thought he would surrender quickly and admit guilt, they underestimated the man who had mined for gold at Weavers Needle in the Superstition Mountains. One of the most remarkable aspects of the case is the lengths to which Foreman went to fight the seven majors and their massive legal departments. Using the “first sale” defense, Foreman asserted that he had legally purchased used 16mm prints from a number of dealers, including the well-known Willoughby-Peerless Camera Store in New York City, which he then rejuvenated and resold. (To prove his point, during the trial Foreman asked a friend to surreptitiously purchase a used 16mm print from Willoughby-Peerless, which was entered as evidence.) More impressive than his legal defense, though, are the efforts he made to publicize the proceedings against him, to educate others about copyright law, and to warn other collectors and dealers that the same thing might soon happen to them. To that end he used every means at his disposal. In his own 16mm Filmland bulletin, he published the headline “Legal Blitzkrieg Fails” and then asked fellow collectors and dealers,
Who will be next? Surely not you? The film companies are now pushing for copyright law revisions which would give to the copyright owner of the film the right to prohibit “performances”—that is, projections—of the copyrighted film. So, you buy a film, and show it at home. How could that be a problem? Unless you write or otherwise secure permission from the copyright owner, then conceivably you might find deputy U.S. Marshals, several film company private investigators and/or attorneys coming through your front door.
While this may seem paranoid at first, remember that almost every film collector or dealer active in the 1970s that Jeff and I spoke with was visited by the FBI at some point. A dozen years later, in the landmark 1984 Sony Corp. of America v. Universal Studios, Inc., or “Betamax case,” the major studios sued Sony to make all VCRs playback-only, insisting that recording shows off the air would be an infringement of copyright. Imagine the FBI banging on your door over that old episode of Seinfeld you recorded off the TV. Maybe Foreman wasn’t being so paranoid after all.
In the same self-published essay, Foreman urged that “you should make certain your views as a film collector are known to your congressman” and included addresses to write to at the U.S. Department of Justice and Federal Trade Commission. Along with several other film dealers, he took out ads in The Big Reel, advising collectors what to do in case they were approached by the FBI. The warnings clearly had an impact. Former Thunderbird Films employee Kingsley Candler remembers when he was investigated: “The first thing this head [FBI] officer did: he gave me a sheet of paper and said, ‘Would you please sign this?’ I read through it very quickly and realized what it was and said, ‘You cannot force me to sign this.’ It was a waiver of rights. Thanks to The Big Reel: it was about a four-page spread in one issue, people like Evan Foreman, Woody Wise, Ray Atherton all contributed to this huge article about interrogation by the FBI, and they published a portion of a waiver of rights.”
The ne plus ultra of Foreman’s extraordinary one-man battle was his massive, self-published book Copywrong, which he advertised for sale for $99 in collectors’ magazines:
At last! The film companies’ legal tactics revealed! With the documents reproduced in this giant volume one, you and your attorney should be able to fully understand the legal issues involved in any phase of copyright litigation that you are likely to encounter as a film collector who buys and sells used film prints…. Your lawyer, if and when he needs it, will have untold thousands of dollars worth of information at his fingertips.
Copywrong was less a book than an obsessive compilation of the court actions directed against Foreman, and a “how-to guide” on defending yourself in case the FBI and the MPAA came knocking.12
The small-time 16mm dealer from Mobile, Alabama—who by now had become something of an expert and cause célèbre in copyright matters—was even invited to appear before the United States Senate Subcommittee on Patents, Trademarks, and Copyrights. On June 15, 1973, Foreman testified:
Although I own several dozen copyrights on forms used in connection with a small family business,[13] I oppose this bill on the grounds that it drastically and unfairly extends the rights of copyright holders to the detriment of the public…. The Constitution, Article I, Section 8, Clause 8, provides that the Congress shall have the power ‘to promote the progress of science and useful arts by securing for limited time to authors and inventors the exclusive rights to their respective writings.
He continued, in an eerie prediction of the current rampant extension and re-extension of copyright, that
the intent of such copyright owners is amply demonstrated by a statement of Mr. E. Cardon Walker, president of Walt Disney Productions, quoted in the newspaper supplement Parade, March 18, 1973, page 4, “A large share of our product is timeless, which means that we can rerelease our pictures generation by generation.” This industry practice does violence to the constitutional mandate that copyrights shall be “for limited times” by insuring that Snow White and the Seven Dwarfs will never fall into the public domain and that our great-grandchildren and theirs as well, will perpetually be paying Mr. Walker’s stockholders to enjoy it.
Whatever your feelings about Foreman or film dealers in general, you have to admire a guy who could gaze into the looking glass of the future and predict exactly what the major media companies have done in the four decades since his testimony, namely, push back the public’s right to works entering the public domain, in favor of extending copyright protection again and again.
On August 7, 1975, Senior District Judge Daniel Holcombe Thomas—of the United States District Court for the Southern District of Alabama—ruled in the case of American International Pictures, Inc. v. Foreman. As summarized in the Cleveland Law Review,
At trial the studios presented proof merely that they were or represented the holders of copyrights in the films at issue, and that Foreman had sold prints of those films without authorization. As for the “first sale” issue, each studio supplied a single employee who took the stand and testified that his studio never sold prints of any of its films. If this testimony was to be believed, it followed by deduction that the studios had never “first sold” prints of the particular films at issue. The defense discredited these witnesses, however, by establishing on cross-examination that they did not know enough about the practices of their own studios to be able to make such sweeping declarations under oath. Furthermore, Foreman’s attorneys argued that over the years the plaintiff studios had transferred huge numbers of prints—not necessarily prints of the films at issue—to television stations, salvage dealers, and other parties under circumstances which made those transfers “first sales” under section 27…. The district judge agreed with Foreman, holding that the burden was on the plaintiff in such cases to establish by a preponderance of the evidence that no “first sales” of prints of the films at issue had occurred, and that the studios had failed to sustain that burden.14
The court found in his favor. In the lopsided battle against Hollywood, Foreman had, amazingly, won.
Or so it seemed. Loath to give up on such a well-publicized case—even against a dealer in Alabama who resold 16mm prints of The Blonde Bandit and Curse of the Swamp Creature—and with deep legal pockets, the studios appealed the Foreman case. On July 17, 1978, the United States Court of Appeals, Fifth Circuit, reversed the lower court’s decision, essentially finding in the studios’ favor by placing the burden on Foreman to prove that he’d acquired the films from someone who’d legally acquired them from the studios to begin with (and thus falling under the first sale doctrine). The court stated that “the person claiming authority to … vend generally must show that his authority to do so flows from the copyright holder,” and that Foreman’s mere possession of the film prints wasn’t enough to meet the burden. Francis M. Nevins later pointed out, “Despite the murkiness of the language, the Fifth Circuit decision clearly requires a defendant in a civil right-to-vend case to show something about how he obtained the particular film prints for which sale he has been sued.”15
If the case of American International Pictures, Inc. v. Foreman were a Hollywood movie, then the plucky, embattled film dealer from the Deep South, the self-educated copyright expert who waged a lopsided battle against big business, would win out in the end.
In real life, Evan H. Foreman was put out of business and 16mm Filmland closed down immediately as a direct result of the Fifth Circuit ruling.
To this day, the feisty Foreman continues his efforts to educate others about copyright law, but now instead of the flimsy eight-page film catalogue he sent out in the 1970s, he uses e-mail. Recent articles forwarded by him include “How Intellectual Property Distorts Big Business, Science, and Creativity” and “Lawyers, Film, and Money: Copyrighting the First Movies.” I ask Foreman if he knows how much he spent in legal bills fighting the studios, and he simply shrugs: “I don’t remember. I’ll say this, the film industry spent a whole hell of a lot more.” He still loves the movies, and even after thirty-five years have passed, he still loves raising hell against the big media companies. “They’re not interested in art, they’re interested in squeezing the last nickel out of the film,” he says with righteous fervor. “They’re stealing from the American public. That’s the real piracy. You see, the copyright law is not written for business or profit. It’s written for the people of the United States.”
When I ask if he has any regrets about his struggles with the Hollywood studios, he thinks for a moment, then sighs: “[It’s] like that joke about the man who’s asked about the war: ‘What would you say about your experience in World War II?’ The man replies, ‘I wouldn’t give it away for a million dollars—but I wouldn’t give you a damn dime to do it again.’” Even though Evan Foreman lost his case on appeal and was driven out of the film business, maybe he won in the end simply by having the ornery Fred C. Dobbs spirit to stand up to the major studios and spit in their eyes: “You have to understand, when these people throw the hand grenade in, in the past no one had ever stood up to them before with all this nonsense.”