How Fred Ott Sneezed on Copyright Legislation

Who owns the films we watch? And should they be ow ned? Jay Weissberg explores that question in relation to The Sneeze, one of the first Edison films and the first copyrighted motion picture in the United States.

When Fred Ott sneezed on camera (but not on the camera) in 1894, little could he have guessed that his snuff-induced reflex would usher in more than a century of lawsuits. Ott was an assistant to Thomas Edison when he volunteered to be filmed by W.K.L. Dickson and William Heise, for what was to become a direct precursor to cinema, Edison Kinetoscopic Record of a Sneeze. A day or so later, the photographs – the “film” was printed as a series of photographs and not actually animated through a projector until 1953 – were registered at the Library of Congress and became the first ever copyrighted motion picture.
That’s when the trouble began.
Not directly for Mr. Ott, or his sneeze. At least, not yet. But just over two decades later, as detailed in Louis D. Frohlich and Charles Schwartz’s exhausting 943-page The Law of Motion Pictures, published in 1918, “Litigation between the different parties associated with the business has been frequent and has resulted in a large body of case law on the questions peculiar to the industry.” In other words, from practically the moment motion pictures were copyrighted, someone other than their creator was duping it, pirating it, re-editing it, or laying claim to the income it generated. Benjamin Franklin wrote that the only certainties in life are death and taxes, but we can add “the desire to possess what shouldn’t belong to us” to the list.
In the film world, the most legendary perpetrator of this shibboleth was Raymond Rohauer. “King of the Film Freebooters” was how scholar-collector William K. Everson christened him, though most who came in contact with the man used more colorful language. As early as the 1940s, Rohauer, an exhibitor and collector, began laying copyright claim to every film that entered his collection – and many that didn’t. He befriended out-of-fashion stars, bought their prints, and asserted ownership, engaging a phalanx of lawyers to bully anyone who dared to screen prints that hadn’t come through his hands, including archives showing reels in their own collections.
Rohauer’s extravagant declarations and acquaintance with an unending gallery of process servers made him more than a nuisance: his pretense to copyright prevented hundreds of films from being screened, and an equal number from undergoing much-needed restoration, since archives were afraid to spend money restoring movies that would invariably trigger a legally groundless yet often effective Rohauer lawsuit. He would re-edit films and claim ownership, or circulate second-rate dupes to deter others from making copies: film lovers like myself knew scores of classics only through lousy prints, always with the “RAYMOND ROHAUER presents” title card in fuzzy Futura typeface.
In 1970, film preservationist David Shepard decided to poke fun by making RAYMOND ROHAUER presents “The Sneeze”, a hilarious parody of Rohauer’s extravagant assertions via the use of Ott’s starring vehicle. Imitating the style of all Rohauer prints, Shepard loaded the first two minutes with long descriptive title cards, including the not-so-unfeasible claim: “Recently, perservering Film Archivist RAYMOND ROHAUER secured the Estate of Thomas A. Edison and so acquired exclusive world rights in perpetuity to all motion picture films produced with sprocket holes.” The Sneeze itself takes up just eight seconds at the end, and that includes the anachronistic intertitles “Ahhh–” and “–Choo!!!” Look it up on You Tube.
Like all good jokes, Shepard’s parody is rooted in a very serious issue: who owns the films we watch? More to the point, should they be owned? The answer to the latter question is a highly qualified “yes.” Culture is a commodity: it exists because someone pays for it, and in most cases, that person or entity wants a return on their investment. Films in public domain, or held hostage by contested rights holders, tend to languish in a multiplicity of thirdrate copies because no one will spend the money to restore and release a movie for which they don’t have exclusive rights. The big question is how do we make it financially viable for archival films to be properly conserved and then made available to the general public? Who’s going to ensure we get access to the best prints, if the print owners (as opposed to rights holders) fear their restoration work will be superseded by someone else’s release of the same title?
Ironically, the footage every film historian knows as Fred Ott’s Sneeze is actually not the full story. In 2014, Dan Streible made the stunning announcement that the 45 frames copyrighted in 1894 at the Library of Congress were just over half the actual number of frames shot: an additional 36 frames had been published in Harper’s Weekly the year they were taken, which means the complete film is nearly twice the length of the original copyrighted version. Ott sneezed twice on camera; good thing the copyright expired.

Jay Weissberg is the director of the Pordenone Silent Film Festival, and a film critic with Variety.