Just Like In The Movies: Little Things Mean a Lot – How a Two-Day Screenplay, a One-Day Shoot, Fifteen Minutes of Film, and One Lady Set Off The Modern Intellectual Property Wars.*

 *And Made It Increasingly Unlikely J.K. Rowling Will Ever Live Long Enough To Spend All Her Money (Stephen King, Too)

Micah S. Harris

The legacy of the nineteenth century’s great age of invention includes not only cars, telephones, radios, and motion pictures, but also each and every cease and desist letter that ever broke a Brony’s heart.

Or a Treker’s. Or a Whovian’s. Whatever the case may be—if you are a fan who celebrates creatively stories and characters you love in the form of, but not limited to, art prints, fanfic, cosplay, homemade videos for YouTube—you may learn that the parent of the object of your affection objects to your intentions. Even that tattoo of Pinkie Pie you brandish on your thigh, young man, probably isn’t safe from a good laser grooming if the person who owns the trademark decides it must go.

But what creator and/or copyright holder would really complain that their work has captured an audience’s imagination to the degree that their fellow artists in the crowd are compelled to give them creative feedback? Something that could never possibly take a crumb from the property owner’s mouth, like, say, an eleven-year old girl posting her drawing depicting the Frozen girls?

Certainly, anyone can understand the concern of all owners of intellectual property that they may turn on their computers to find their trademarks have spread across social media like dandelions over the entire neighborhood’s lawns. To say nothing of losing control over their own characters (Harry Potter? Meet Gandalf. Yes—it happened in the unauthorized final volume of the Potter saga that hit the market before some amateur named J.K. Rowling’s version).

Particularly frustrating for people who make money by making up stories and characters is that new technology makes it increasingly harder to keep control of those stories and characters. And at the start of the twentieth-century, movies were the new storytelling technology.

In 1903, Edwin S. Porter’s The Great Train Robbery had more than resuscitated the dying vaudevillian novelty of moving pictures; it had resurrected them as a glorified entertainment industry.

Now there existed the potential for new audiences to be exposed to a writer’s story, people who would never attend a stage production or crack the spine of a book.

What author wouldn’t want a piece of that revolutionary market?

Early screenwriters, however, could have cared less what the actual authors of the stories they stole wanted. No, what the new industry’s fledgling studios wanted was an endless supply of narrative material. As one offending screenwriter, Gene Gauntier—“the Kalem Girl”—stated unapologetically, even gleefully: “There was no copyright law to protect authors and I could and did infringe upon everything.”

What made Gauntier “the Kalem Girl” was not her writing skills. She was also the small studio’s star, an embodiment in both real life and the characters she played of the spunky new twentieth-century’s ingenue, a girl not afraid of breaking a nail—or perhaps her neck—in search of contemporary adventures to be had.

Gauntier’s initial film career was something of a vagabond’s rough and tumble existence. For instance, as a working actress in “the flickers,” she might be called upon to leap into a quite possibly unsanitary river. In fact, that accurately describes part of her first day on the job. Though “terrified at each daring thing I had to do,” she continued to put her life at risk while filming her character’s perils—some of which were her own ideas!

Though Gauntier’s daredevil work as an actress made her “the Kalem Girl” in her day, it was her career as the company’s principle screen writer, more specifically its principle plagiarist, that would make her mark on movie history. Her first script, in fact, was an unlicensed adaptation of Tom Sawyer in 1907. She quickly followed that same year with rip-offs of Hiawatha, Evangeline, and As You Like It.

She was on safe ground with Shakespeare, of course, who, at that point, had not written anything new in three hundred years, and, even then, showed little to no interest in maintaining exclusive rights to his plays. But the first generation heirs of Twain and Longfellow were still alive, and they stood to take umbrage at the piracy of the family literary heirlooms.

Heedless—perhaps “brazen” is the word—Gauntier proceeded to whip up a script to take advantage of the closed-for-the season race track facilities at Shepherd’s Bay, New Jersey. And what literary property has ever gotten more mileage out of a race than General Lew Wallace’s novel Ben-Hur?

And so, a change of the seasons prompting the departure of the fireworks company which had been using the grounds all summer, a young screenwriter capable of whittling down the epic Ben-Hur in a two-day writing session for a one-day shoot…and voila! The powder is in place to be lit and fire the first shot over the bow in the modern war for all creators of fiction, characters and entire worlds to maintain exclusive rights to their intellectual property.

The film was only going to be the standard Kalem length, just fifteen minutes. It was only a small portion of a much larger work. Such a little thing, really. Who could possibly make a big deal out of fifteen minutes of film?

Well, Lew Wallace’s son for one, the guy who owned the rights to his late daddy’s novel.

Ben-Hur, though published in 1880, was still hot, still the best-selling novel in America. There was a popular play version (complete with on stage chariot race) whose owners had paid for the right to adapt the story, as opposed to Kalem which hadn’t forked over one nickel and garnered all the profits.

The result was the Wallace estate, Wallace’s publisher, and the theater company brought a law suit against Kalem and Gene Gauntier herself.

Amazingly, it wasn’t an easy win. There had to be a few years of legalities before the court decided against the Kalem company in 1911 and ordered them to pay $25,000 to the plaintiff.

Gauntier’s literary transgression led to the legal decision that if you turn a preexisting work of fiction into a movie…and, by precedent, create a derivative work in any new medium, in part or in whole… you pay the writer first. Really, it took four years for a court to reach that verdict?

Gauntier herself seems to have come out of it all smelling like a rose. She continued working in the movies, her career unimpeded by blatant literary theft.  She married a wealthy Swede in 1909, and retired from the film industry on her own terms in 1920.  She lived until 1966, dying at age 81.

Her remains are buried in Sweden, her chained off gravesite presided over by a large chunk of jutting rock which has been given by the locals the delightful sobriquet of  “Gene Gauntier’s thumb.”

Gene Gauntier’s thumb

I like to think of it as “Gene Gauntier’s thumbs up” from the grave to every creator in whatever medium who has made six figures from a studio just taking an option on their work, as well as those who have had so many “adaptive works” actually reach the big screen that they can now, shall we say, afford to leave Ben Franklin behind all flushed.

The “thumbs down” for fandom is that every time you go back to a YouTube link to rewatch a Tomb Raider fan film that was there yesterday, only to find a note saying it has been removed due to the copyright holder’s intervention….every time the amateur writer who loves the Vampire Lestat or Daenerys , Mother of Dragons, and wants nothing else but to make up their own adventures for the character and publish them on their little website, just for fun, but receives a cease and desist letter…..

Well, it all goes back 110 years ago to a two-day-to-script, one-day-to-film “epic;” the easy availability of a local race track determining the fateful choice of which popular novel to rip off; just fifteen minutes of silent film; and one little lady accustomed to acting (and writing) with abandon.