CBS uncovers rare Jack Benny treasures, puts them back and tosses out the key

When Jack Benny fans discovered that the CBS vaults contained some 25 original Jack Benny TV show episodes previously thought lost, they rejoiced. They approached the network for release of the public-domain footage, even offering to foot the bill for digital transfer and preservation. CBS balked, insisting that the fan club get approval from the Benny estate. No problem: Jack Benny's descendants were only too glad to have his original TV shows rescued from obscurity and given to the world.

But CBS balked again, citing unspecified "issues" (presumably potential copyrights in the score or other materials). Basically, CBS has decided that it could cost too much to pay a lawyer to figure out if they can release these films -- or even turn them over to Benny's fans and family for release -- and so it has decided to simply abandon them, sealing them back up in the vault forever.

This isn't how it's supposed to work. In the Constitution's progress clause, Congress is empowered to "promote the progress of the arts" through copyright. When copyright creates these deadlocks that doom America's artistic heritage to history's scrapheap, copyright needs to change.

Late last week the International Jack Benny Fan Club got some very bad news: rather than allow the club with the Benny family's enthusiastic blessing to digitally preserve some unreleased public domain Benny show masters that CBS has in its possession, the network is giving a thumbs down to the idea -- thus sealing these shows' fate so they will never be seen again. In effect, it's a bullet through the head of this body of Benny work. And here is the most frustrating tidbit for comedy fans and those who study comedy: the Fan Club offered to do the preservation at no cost to CBS.

Why does this matter? Benny invented the situation comedy on radio in the 1930s, had perfect timing, assembled a cast of zany characters who poked fun at him, could extend a laugh by the way he slowly panned around the room after a punch line and influenced comedians such as Kelsey Grammer and Johnny Carson. In his final years, he could literally read a page out of the phone book and get laughs. His final weekly series went off the air in 1964 but he continued to do specials until he died in 1974.

Killing Comedic Heritage? CBS Reportedly Seals Some Classic Jack Benny Show Comedy Masters

Facebook: Tell Les Moonves to preserve The Jack Benny Benny Program masters (Thanks, Dale!)


  1. First of all, this is probably the first time I hear of Jack Benny, what with me not being in the right country and all.

    Still, I just can’t believe this.
    Having the opportunity to release unique, public domain media, with the cost of it taken care of by a third party and … just refusing ?

    What the hell, CBS ? Seriously ?

    I mean, it even would have been fairly easy to turn this into a decent PR stunt and win some love at little cost.
    I hope there will be a better explanation to this non-sense at some point, I’m curious as to what those “issues” could be.

    And as someone pointed out on the original post’s comments, masters aren’t exactly the most stable of things, they won’t last forever.
    Would be sad to see them lost, especially in those circumstances and because of the very company that made money out of them.

  2. Why did anyone expect that CBS would want to give away free entertainment that would potentially draw viewers away from their current broadcasting? That would be like Burger King handing out free tacos outside their stores.

    1. RE: Anon • #2 • 7:05 AM Monday, Jan 18, 2010 •
      Why did anyone expect that CBS would want to give away free entertainment that would potentially draw viewers away from their current broadcasting? That would be like Burger King handing out free tacos outside their stores.

      If putting out 25 half-hour episodes of vintage comedy would hurt CBS in any way, they have much bigger problems. Thats just ridiculous. And who says they have to give it away for free?

      This is vintage, historical footage. Seems the would have an obligation to at least preserve it, have it remastered. They could air it themselves if selling it would bankrupt them, as you suggest.

  3. As a fan of Jack Benny and his famously dry wit, I would love to see these episodes. I’ll be writing CBS about this.

  4. CBS isn’t telling them “you can’t make copies”, they’re saying “you can’t use OUR copies as your master”.

    There is nothing in copyright law that requires the content to be made available for copying after the copyright expires. If the preservation folks can get other copies to use as masters, nothing stops them from copying them to their hearts’ content.

    I might CBS are being d-bags for their behavior here, but there’s nothing legally requiring them to cooperate.

    1. I think the point here is that there AREN’T any other copies. These are “lost” episodes that have been locked in the vault for ages. If they were already out there and available, these folks wouldn’t be so anxious to preserve them.

      It’s the really weak part of U.S. copyright law, effecting music more than any other area, that there ISN’T any provision for protecting our cultural heritage. Too often the law is used to prevent that protection, rather than provide it, as the constitution was intended to do.

  5. Maybe the fan club should offer to pay CBS’ legal and clerical fees, just to demonstrate that they’ve offered to pay for all potential expenses. Can CBS make the request that all past costs associated with the material be paid for, regardless of profits made? Is there any legal precedent for this particular scenario?

  6. @dballing #2

    CBS isn’t being the dog in the manger. CBS is refusing to release out of fear that the release will infringe someone else’s copyright, combined with an apparent desire to maintain file copies for itself.

    If CBS wanted to burn the footage, that would be its right. If CBS were to give away the footage in its surviving form, that would not be the subject of copyright; CBS is the rightful owner of the media, and has “first sale” rights to dispose of them as it pleases. It’s only the act of copying the footage for the fan club that would be the subject of copyright law at all.

    Alas, CBS is forced into the position where the footage may have to moulder in the archives. If it no longer has the copy rights (its rights to soundtrack music may have reverted to the composers and performers, for instance), it cannot digitize; it cannot broadcast; it might as well burn, because by the time the copyrights expire, the film will have degraded beyond usability.

    Copyright today advances progress by making sure that new works must be created – because old works become inaccessible through situations like this. If a network is to have anything to air, it must continue to create new material because the rights to the old are so uncertain. I suppose that’s progress of a sort.

  7. The chances are really high that these are the only existing copies of these shows. Making these copies unavailable guarantees the shows will never be seen again. Maybe CBS is waiting for a financial incentive, like selling them to Turner?

  8. The news in this item is that the family is cool with the rescue. No, they’re even enthusiastic about it!

    Way to go, Benny estate.
    Way not to go, pretty much any other estate (Jean Miro, Hendrix, etc)

  9. And this is why copyright laws have to change. The whole point of copyright in the first place was to provide incentive for people to produce media outside of comissions. If Romeo and Juliet were written with these current copyright laws most of us probably wouldn’t even be able to get our hands on it cause of garbage like this, and the same can be said about most classical music. It’s just ridiculous when they can extend the copyrgiht of something to over 100 years, which in turn does NOTHING to help society as a whole.

    As one of the policy makers for the first copyright laws had said, copyright is an evil, but it is a necessary evil. He also mentioned this kind of thing happening saying that once copyright gets out of control it is only evil, and thus unnecessary. I can’t remember the exact words of how it was said so I’ll leave it out of quotes, but with enough research you can probably find the guy who said it.

  10. In keeping with other copyright-lapse cases recently, I’m pretty sure this is the issue:

    – The Jack Benny tapes are of very-good quality, and the best out there.

    – If CBS digitizes & restores these tapes themselves, they can claim Copyright protections on the remasters, and sell them.

    – If CBS gives them , or a 2nd generation xfer, to the Jack Benny Fan Club, they lose having the only ‘best’ copies out there… and would have to compete if they decided to remaster and sell them at some point.

    I’m pretty sure the ability to claim copyright on remasters is the huge issue here. It’s a concept that has danced around probably 1/3 of the copyright issues on BoingBoing posts, while sheer stupidity and greed seem to dominate the other 2/3.

    1. “- If CBS digitizes & restores these tapes themselves, they can claim Copyright protections on the remasters, and sell them.”

      They most certainly can not.

  11. I will guarantee you that these are not tapes. They are film masters. Motion picture film, properly stored, can last for over a century. (Preventing the shrinkage of the base is the critical issue for this.)

    CBS is literally locking away a precious bit of American comic (and cultural) history.

    And yes, I’m old enough to remember Jack Benny. He was hilarious.

    And I wonder if they are also concerned with the character Rochester, and whether he’d play well in today’s enhanced-sensitivities world.

  12. These recordings probably date from the very early 1950s, by which time the presentation of Rochester was pretty “clean”, and should not cause any problems properly framed. It was mainly in the radio series of the 1930s that the occasional racist implication slipped through — though never I think harped upon — and by the great years (1945-1950 or so) Rochester was usually at the top of the intelligence tree.
    Note also that Eddie Anderson stayed close to Benny (and the various iterations of “Benny” and “Rochester”) for almost 40 years.

  13. It’s worth noting on MLK day that Jack Benny is credited as being a forerunner to changing media stereotypes of African-American characters. Rochester, Jack Benny’s butler frequently portrayed in many of his sketches, often was portrayed as witty and smart and getting the last word in with his boss. Jack would often make himself the butt of jokes with Rochester bringing in the punchline.

  14. @#4 nailed it. i used to work for a company called Westwood One. they’ve been doing radio content — news, sports, talk, concerts — for eons, and have a HUGE historical sound library. unfortunately, they can’t do a darn thing with it due to time and expense of tracking down copyright holders. anyone want to volunteer?

  15. I find it odd that if the episodes themselves have passed into public domain, how is it that there may be other material contained within that has not?

    Do we put greater value on music and “other materials” which gives them longer copyright protection than that given to visual entertainment?

  16. What a terrible sign of the times. Please tell all of CBS’ advertisers that I personally will avoid purchasing their products and I will watch any alternative channel to CBS. CBS, look ashamed.

  17. They’re probably waiting for the next round of copyright legislation to put 1930’s work back into their exclusive ownership. Obviously this would promote the progress of the arts by providing new revenue streams for the entertainment industry, so I’m sure the supreme court won’t object.

  18. @Cory –

    They most certainly can and will.

    That’s what happened with the Beatles remasters, and all the classic rock stuff. BoingBoing actually covered that a few months ago. The original masters aren’t under copyright, but the remasters are – as they’re considered new work.

    1. The club doesn’t seem to be talking about changing anything about the recording of the show except what it’s saved on. I think that’s why CBS wouldn’t hold the copyright on the new copies. If copying a work from one holder to another creates a new work, then there would be a leg for the RIAA to stand on for their copyright infringement suits. The Beatles remastered albums actually clarified the sound and changed the actual songs. This club doesn’t sound like they’re willing or wanting to pay for changing the quality of the recordings, but the simple transfer of data.

  19. For you whippersnappers who aren’t familiar with Jack Benny, he pretty much invented the facepalm.

  20. I think it is very important to share the things that we love and cherish with the people we love and cherish and I think it is important to pass the appreciation of those things on to the next generation. I have two young daughters. They know the comedians, actors, musicians, and artists who have passed because their father and I have made sure to introduce them. What CBS is doing is just pathetic and sad.

  21. “- If CBS digitizes & restores these tapes themselves, they can claim Copyright protections on the remasters, and sell them.”

    They most certainly can not.

    …Actually, Cory, having worked for a See-BS affiliate, I know from first hand experience that this is exactly what they’ll claim. During my highly unsuccessful attempts to get copies of the network’s coverage of NASA’s various missions – Apollo 11, the Surveyor I hour-long special, the Gemini VII bulletins, etc – one of the things I learned is that there were, at the time, some tens of thousands of hours of programming that would probably remain in the network vaults because some suit had determined that even though they had been advised by their attorneys that remastering for the home market – VHS at the time – would give them *sole* rights to distribution and profity, there wouldn’t be enough demand to justify even hiring the lawyer to file the copyright paperwork involved. This mostly applied to shows that had a sole sponsor, as many of those sponsors never got copies of the shows due to lack of interest once the show was aired.

    1. They can claim anything they want, it doesn’t make it true. First of all, @jonathan_v, the Beatles masters are not in the PD, except in Europe, where some are headed that way in the years to come. Remastering does not extend the copyright in the underlying work, nor does it create a new copyright unless the remastering is, in fact, a remix. Restoration does not create copyright. For copyrights to arise, you need to apply creative, transformative effort, not simply recreating the masters as they sounded before decay set in. Copyright rewards creativity, not “sweat of the brow.” You can work hard on something, but without creative effort, no copyright is attracted to the product. A haiku that you dash off in 10 seconds gets the full term of copyright. A phone book that you spend 10 years on gets not one second of copyright.

      Copyright hoarders make all kinds of crazy claims about their rights — a Disney exec I know once claimed that Disney got a new copyright every time they *aired* a TV show — but they’re lying.

      If you dispute this, please cite a single US case in which a court upheld the idea that remastering or other restoration efforts give rise to a new copyright.

      @jonathan_v I’m pretty sure that the post you’re talking about is the guy who claimed that because he’d remastered the Beatles using some kind of psycho-acoustic gobbledegook, he had created a new copyright and didn’t have to get permission from EMI. The court laughed, granted EMI its injunction, and then they ground him into paste.

  22. Perhaps the fan club could interest CBS in allowing the Library of Congress to preserve them for the American Memory project. Funds from CBS for the project would repair public relations and probably get the sponsors to a Capitol Hill party. Copyright problems would probably be avoided since the Copyright Office is part of the Library.

  23. If your conjecture is right — that CBS’s “issues” are potential copyrights of other parties — I’m less likely to call that a problem with the copyright law and more likely to say it’s a problem typical of corporate decision-making.

  24. Cory’s right. Digitizing stuff, no matter how much cleanup or “enhancement” you do, is not creation of a new work. A pretty good rule of thumb is probably whether the intended audience, “consuming” the work the way in which it was meant to be consumed, would be able to tell the difference between the original and the remaster or scan other than in a way reflected by reactions such as “this looks a lot cleaner” or “this sounds better or more rich.”

    Cory also is not saying that CBS has itself offended the letter or spirit of copyright by what it has done, or at least I don’t think he is. I think the point here is not about its copyright in the Benny shows. The argument is that CBS is in fact acting rationally in the face of how copyright claims by others would likely affect its economic incentive to reissue these broadcasts and benefit from copyright itself. Notwithstanding the arguable bona fides of those individual claims, the net loss to society here is hard to square with the notional policy goal of copyright law.

    Works for me, anyway.

  25. I don’t know if this is related to releasing the Red Skelton Show. CBS may have some ownership issues but Skelton’s productions also own them. The estate has release many videos but mostly the half hour ones and the last season on NBC. They are also on B/W but I know that some were in color. The ones released only through the web by Timeless also have a copywrite by David Rose. This might be an example to CBS worry about who else has a copywrite to Jack Benny’s shows.

  26. This brings to mind something I’ve always wondered about…are postcards, posters, etc., of famous old works of art protected by copyright? Thinks like a poster of the Mona Lisa. Can the person who took the straight photo of the Mona Lisa claim copyright on that photo? Can the person who made a poster using that photo claim copyright on the poster? Why or why not?

  27. The shows are kinescopes (film recordings off the video screen) and not videotape. Kinescopes are quite robust if kept cool and dry. I very much doubt they are rotting.

    I’m not defending CBS here, but two considerations exist:

    1. CBS probably doesn’t own the shows. A production company that holds the writers’ rights claims co-ownership. Their claims (and others, such as union payments due) need to be resolved before any official release.

    2. The shows are very likely NOT in the public domain. Those who claim they are PD typically rely on an error of interpretation. Until 1979, publication of a work without proper copyright notice threw it into the public domain in the United States. Just like almost all TV programming from the 1950s and 1960s, kinescopes typically don’t have copyright notices. But unlike films, books, recordings, etc., kinescopes were never published in the legal sense. US copyright law defines “publication” as selling or offering to sell copies, or giving away or offering to give away copies. This has not happened in the case of kinescopes. I would be extremely surprised if these shows were in public domain (not to mention the music, etc. that they contain.)

    Two takeaways: First, copyright law often inhibits public literacy, free expression, cultural awareness, and causes many works to physically disintegrate before they can reach potential audiences. It needs to change. But even if we won a model 14-year (or 5-year) copyright term for both published and unpublished works, and it went into effect tomorrow morning, that would not change hundreds of thousands of restrictive contracts that limit free distribution of cultural materials.

    And second: Don’t believe everything you hear about copyright law. Since we put 2000 of our films online for free in late 2001, I’ve heard just about every Net-enabled assertion about copyright law, and I’ve concluded that copyright law on the Internet is what people WANT to believe is true, rather than what is actually true.

    Rick Prelinger

  28. Here (with his permission) is a comment from Stan Taffel, who is a media preservationist and posted this to the Association of Moving Image Archivists listserv (AMIA-L). According to Stan, this controversy has been orchestrated by a fan club person who sells copies of the shows.

    Stan also tells me he’s just been speaking with a company who is trying to secure a license to release the shows.

    Again, I’m just reporting what others have said, and have no personal stake or opinion other than that these shows should be made available to those who fervently want to see them.

    Stan’s comment:

    “I have spoken to my source at CBS and am happy to report that the “hype” is just what it is; all hype.

    CBS is ready and willing to sub license any property (as they did with Studio One etc.) for a fee.
    Laura Leff, the “President” of the Jack Benny Fan Club she began a few years ago, is very good at generating P R and has done a very good job at starting a Facebook petition against CBS and getting articles and giving interviews pleading for the release of 25 Benny shows. She says that CBS has “locked” these films away and will not be preserved. This is not the case.

    The 25 Benny shows as well as the full run of the series is stored in state of the art facilities. The film elements are safe and in good shape. CBS is also aware of the fact that Ms. Leff has a library of many existing shows and charges for making copies; dupes of both copywritten and PD shows are offered from her website. 

    While I applaud her tenacity and love for Jack Benny (she organized a fine website and a convention a few years ago), it seems that the truth has been diluted and the actual state of the predicament has been reported in error. She is great at “self promoting”.

    What it boils down to is this: She is a huge fan who just wants to have copies of the shows and has gone this route to try and obtain them. CBS doesn’t know how she was “supervising” a transfer of one of the color shows as that is not her job. True, it was an NBC special and maybe she was invited to see a conversion but “supervising”? She is friends with Joan Benny (Jack’s daughter) so perhaps that’s how she was invited to see the inner workings. She has gained attention to her fan club and her plight, however misrepresented it is.

    CBS is not the enemy here; they will sub contract The Jack Benny out. As these are supposedly P D shows (and that’s not definite) there are other sources to locate them and once they’re out, anyone can dupe them and sell them for no fee. CBS isn’t the only source for 16mm kinescopes. They even told her to try to find them through other avenues, fully aware she wants to add them to her “collection”.

    Should these films be available – of course. However, business is business and CBS pays for the storage of these and hundreds and hundreds of thousands of elements and that’s not cheap. To give copies to her for her archive is not so simple even if she pays for her copies. Maybe some company will come forward and these shows will be seen. Time will tell.”

    1. I would like to respond to a few specific points from Stan Taffel’s comments:

      * “Laura Leff, the “President” of the Jack Benny Fan Club she began a few years ago” – I started the club 30 years ago, so we’re a well-established and respected group that has been doing research on the work of Jack Benny for a long time.

      * “starting a Facebook petition against CBS” – I did not start this petition, but I do support the effort.

      * “CBS is also aware of the fact that Ms. Leff has a library of many existing shows
      and charges for making copies” – Our video library is just that…a library, which operates within the definition of our organization as a 501(c)(3) non-profit group. While we encourage voluntary donations for obtaining material from the library to support the costs of operating the organization and efforts such as preserving the shows, I have never turned down an order that didn’t make a donation.

      * “CBS doesn’t know how she was “supervising” a transfer of one of the color shows as that is not her job. True, it was an NBC special and maybe she was invited to see a conversion but “supervising”?” – Perhaps there’s a clarification on the term “supervising”. The Estate authorized me to arrange transfers of the color specials to long-term preservation media. I was at CBS Television City during this work. While I can’t tell the folks who work there how to operate the equipment, I was there as an agent of the Estate to see the transfers being done.

      *”CBS isn’t the only source for 16mm kinescopes. They even told her to try to find
      them through other avenues” – This is completely untrue. CBS never made any such statement to me.

      Additionally, I specifically asked my contact at CBS if this was an issue with us being an nonprofit and not a production company, since it was taking so long to get a response. I was told they were dealing with it just as they would for anyone else.

      I’m sorry that Mr. Taffel doesn’t support our efforts to preserve this work, but I guess you can’t have everyone agree with you. The Benny family wants his work to be out and available so that people can enjoy it for generations to come. And that’s what the International Jack Benny Fan Club is trying to do.

      –Laura Leff
      President, IJBFC

  29. I just read the wikipedia article on the Corel decision from the 2nd District Court in the USA that declared a scan/photograph of a public domain image does not get copyright. The appellate decision *only* applies to the 2nd US District. Universities outside the 2nd district still are vigorously enforcing copyright on scans of their public domain holdings.

    The UK does give a new copyright to a scan of a public domain image.

    I’m not sure how this would mesh with digitizing video but I can’t believe it’s not relevant.

    Wikipedia entry on the Corel decision:

  30. Just another sad bit of proof that our current copyright laws are a complete mess and need to be changed ASAP.

    The greedy scumbags at these corporations could care less about these priceless American treasures, all they care about is money. It’s just pitiful that so many times valiant preservationists have had to rescue copyrighted material from the very owners of that material. And this is another case of such a travesty.

    I say lets pass some new legislation that has some teeth, like making it a criminal offense for copyright holders to allow the materials (that they are fortunate enough to be allowed to hold) to be destroyed or “locked away” ever again due to their negligence or incompetence. This is the information age and all of it should be available, instead of being “locked away” because of cowardice, greed or ignorance.

  31. Welcome to corporate America land of the lawyers.

    Corporate America is corrupt to the core. Those tapes aren’t going to be released till everyone gets their share of the gold that they are worth. It is all about greed. Greed is good and America is full of Gordon Geckos.

  32. This is sad, both on a historical basis but also on a personal one. I grew up with Jack Benny’s TV show, and he was one of my heroes. I can’t think of anyone other than my father that influenced me more. It’s sad that future generations won’t get to see this part of American history.

    I’ve written a blog post about it – I’m not sure I’m saying anything that hasn’t already been said, but I want to add one more voice.

  33. In view of the difficulty the networks have in getting even second-rate comic talent, CBS could make a killing with a season of Benny reruns.

    What are they thinking?

  34. It seems wrong that copyright laws do not include some sort of obligation on the owner to give market access to the work that is being protected.

    We need CopyResponsibility laws too.

  35. One of the big problems with releasing the material is copyright on musical performances – rights and fees can be astronomical. Anything after 1924 is protected. Legal types will happily go after all deep pockets involved in distribution if that is not handled up front, and there was a fair bit of music in the Benny programs that I remember.

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