Thieves of Bombay: United Artists,Colonial Copyright,and Film Piracy in the 1920s

Setting the Scene: Hollywood and Fairbanks in 1920s India

Before examining the specifics of United Artists’ campaign against Indian piracy, it is important to understand the position that Douglas Fairbanks, United Artists, and Hollywood more broadly occupied in 1920s India. Prior to the dawn of World War I in 1914, the American film industry had little traction in the Indian market. As Kristin Thompson (1985) has noted, the French company Pathé was the leading foreign distributor to India’s small number of movie theaters and larger number of itinerant exhibitors. If an American film reached Indian shores, it was more likely to have arrived through a London-based intermediary who exported used prints to Asia for cut-rate prices rather than directly from an American distributor. However, the war’s devastating consequences for European nations, along with campaigns by American distributors to dominate the global market, transformed the Indian film marketplace. The period between the end of the war and the coming of sound was critical to Hollywood’s internationalization. By the early 1920s, U.S. films occupied an estimated 90 percent of screen time in India’s theaters (which numbered roughly 200 in 1922, expanding to 300 by 1926) (“React Against U.S.”, 1926; Thompson, 1985).

“Local” agents were critical to a burgeoning global Hollywood. In their campaign for Indian market share, the Hollywood studios found a valuable ally in J.F. Madan, whose company was among the first to build permanent theaters in India. By the mid-1920s, Madan Theatres owned one of the biggest distribution and exhibition outfits in India, with interests in studio production as well. Madan entered into agreements with several American studios, including United Artists, for the exclusive rights to distribute their films in the Empire of India (see “Consent Decree”, 1930). As the major importer of Hollywood films in India, Madan had a strong stake in Hollywood’s success, and throughout the 1920s, there were persistent rumors that Madan Theatres would be bought by an American film company. J.F. Madan’s son, J.J. Madan, made several trips to the U.S. and Europe, negotiating with Carl Laemmle, president of Universal Pictures, and even agreeing on terms of sale, which were eventually rejected by the Madan family back home (Barnouw and Krishnaswamy, 1980). ⁶ The 1927 ICC Report noted that foreign ownership of the nation’s largest exhibition network “would not be a desired eventuality”, adding that greater legislative restrictions would be needed now that it was “conceivable that powerful interests concerned in production in other countries might try to capture the market by acquiring control over the cinema trade here” (“Report of the Indian”, 1928). While the sale fell through, managing director J.J. Madan (as quoted in Sharma, 2004) noted that, “it meant great publicity … and it enhanced the prestige and popularity of my firm”.

As the key importer of foreign film in India, and in control of a vast distribution and exhibition network, Madan was critical to Hollywood’s success in the subcontinent. Granted, the revenue that Hollywood derived from India was relatively marginal compared to England and the major Western European nations. Yet India still represented a growing market for American films.

With fewer pictures than the other studios, United Artists took longer than other Hollywood outfits to stake out a meaningful position in the world market, only completing its global distribution network in 1926. United Artists’ apparent lack of interest in controlling international distribution networks might have been due, as Michael Walsh (1998) notes, to its confidence in the global recognition of its stars as the anchor for foreign sales. Indeed, United Artists had an asset that the other Hollywood studios envied: Douglas Fairbanks, the swashbuckling hero of The Thief of Bagdad (see Images 1 and 2). In 1919, Fairbanks cofounded United Artists with Mary Pickford, Charles Chaplin, and D.W. Griffith as a distribution company for independent producers. Of the four founders, Fairbanks was by far the studio’s most important and prolific producer. He was also the most popular American movie star in India. Although Hollywood movies dominated 90 percent of India’s market share, Indian audiences showed particular preference for daredevil pictures, thrillers, and slapstick comedy—all genres in which Fairbanks excelled. ⁷ Fairbanks pictures in the mid-1920s were regularly featured at Madan Theatres in Bombay such as the Excelsior and Empire. ⁸ Yet by any standard, The Thief of Bagdad, released in India in 1925, was United Artists’ biggest hit in India. As Anupama Kapse (2014) argues, Thief ’s “infectious ability to strike roots in a foreign culture” aligned with a long-standing Indian tradition of “Bagdadmania … whose new mascot was Douglas Fairbanks”. The Indian press lavished praise on Fairbanks’ performance and audiences flocked to packed houses. The film was a sensation particularly in Bombay, where it played to full houses at Madan’s Empress Theatre for months. The Times of India called it the “‘Chu Chin Chow’ of Bombay in its sensational success”, adding, “that an Eastern Film played in the West by Western actors should have such a success is the finest possible tribute to the skill of the production” (“Amusements”, 1925).

However, even with their dominant market share and the smashing success of films such as The Thief of Bagdad, Hollywood studios faced troubling times in India. British colonial censors in India had begun to curtail American films that might compromise white authority. Hollywood comedies and stunt films began to be seen by the British administration as public demonstrations of the vulnerability of white bodies, threatening to delegitimate white authority at a moment when Empire was challenged by mounting anti-colonial agitation in India. Indian press accounts railing against the tide of American films “plaguing” India helped strengthen emerging alignments between Indian cinema and British distribution interests. In 1926, the Imperial film conference advocated for the protection of British commerce against the onslaught of American industry in India. The same year, the scenarist and director Niranjan Pal claimed that six Indian princes had offered the equivalent of US$5 million to fight the monopoly of American cinema in India, with plans to build 300 theaters in India dedicated to Indian and British features and plans to establish reciprocal relations between British and Indian exhibition (“Move To Displace American Films”, 1926).

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Image 1.

Credit. Wisconsin Center for Film and Theater Research.

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Image 2.

Credit. Wisconsin Center for Film and Theater Research.

At the same time, growing domestic Indian production was convincing Bombay exhibitors that Indian films were more profitable than foreign pictures. The growth in new motion picture theater openings in and around Bombay showed that the industry, as Kaushik Bhaumik (2002) succinctly puts it, “was ready for take-off”. ⁹ The 1920s also saw a number of production studios opening in and around Bombay, including Excelsior, Imperial, Kohinoor, Krishna, and Sharda film companies. The speed of the shifting tide is evident in the changing American position on the Indian market. For example, in the early 1920s, trade papers such as The Film Daily announced that, “India is showing probably the most encouraging signs of all countries outside England, in its desire for American pictures” (“Foreign Field Better”, 1922). Yet, by mid-1925, Wilbur Keblinger, the American Consul in Bombay (as quoted in “Indian Films Gain”, 1925) would claim in a U.S. Department of Commerce report that “Made in India pictures” had “nearly driven the American serial out of the Indian market”. By 1928, the New York Times was reporting that the “majority of Indian theater managers” said that they “drew … 40% to 50% bigger houses with local productions and comparatively the same increase in box office receipts” (“Motion Pictures in India”, 1928). ¹⁰

With these industrial developments, followed by the indictments against Hollywood issued by the 1927 ICC Report, there was a dawning recognition that Hollywood’s future in India was troubled. That Hollywood would never recover its majority share in India could not have been clear to anyone at the time, but that is precisely what happened.

It was at this crucial moment, in September 1927, that United Artists learned that four films were being exhibited illegally in India. ¹¹ Even though India generated a relatively small (though not inconsequential) amount of revenue as a foreign market, there was a sense that the pirate film circulation represented a much graver threat. If left unchecked, United Artists believed that the pirate network would grow and spread to other nations—both in the East and the West. As a British attorney retained by United Artists phrased it: “I do not think the money is wasted in trying to kill a few wasps before their nest gets too big.” ¹² United Artists may have been especially aggressive in pursuing the piracies because three of those films in question starred Douglas Fairbanks, one of the company’s founders.

In 1927, antipiracy lawsuits were not novel to cinema, Hollywood, or India. As both Peter Decherney (2007) and Jane Gaines (2006) have shown, piracy was part of the film industry from the very beginning and predated the Hollywood studios. By the late-teens and 1920s, Hollywood studios had invested in large distribution networks of film exchanges in order to exercise greater control over print circulation and box office collections. The studios routinely filed lawsuits in the U.S. on copyright infringement grounds; so it is not surprising that by 1927 the fight against “the pirates” was taken to the shores of British India. Even prior to United Artists’ legal actions, Metro-Goldwyn-Mayer (MGM) had filed a lawsuit in India against the unauthorized distribution of Ben-Hur (Niblo, 1925). ¹³ And two months after United Artists launched its lawsuits, Universal accused the Kohinoor Film Company of extracting the racing sequences from Down the Stretch (Baggot, 1927) and editing them together with locally shot footage to create a film called My Pleasure (1927) (“Film Company in Trouble”, 1927). ¹⁴

Although piracy was not new, United Artists’ lawsuits in India were, in their own way, remarkable. To borrow from The Thief of Bagdad’s imagery, the lawsuits let a genie out of a bottle that was more powerful than the studio could control. United Artists entered the lawsuit with confidence that it could stop the piracies and obtain a favorable verdict—perhaps one establishing an important future precedent. However, by late 1929, a stunning inversion had occurred: the pirates held the high ground in court and Hollywood’s most basic assumptions about international copyright protection had been shaken.

Confronting the Pirate Network

In the late 1927, United Artists took action, granting powers of attorney to the Bombay firm of Craigie, Blunt & Caroe to investigate and prosecute the piracy. ¹⁵ Through powers of attorney, United Artists was able to obtain temporary injunctions against the Victory Film Company distributing or exhibiting the Fairbanks films. In taking action to stop the “Bombay piracies”, United Artists immediately faced an obstacle—how, on a material level, could they stop the unauthorized traffic of their films? The problem was that after Victory or some other Indian film company purchased a pirate film, they would exhibit the film and then sell it to another Indian exhibitor, who soon resold it to another exhibitor, and so on. It did not matter if United Artists or Madan filed for injunctions that restrained an exhibitor from showing a film. By the time the court order arrived, the exhibitor had already sold the print to another exhibitor. American attorney Benjamin Pepper referred to this as the “usual tactic” of film pirates once a copyright owner filed for an injunction. ¹⁶ However, the political geography of India compounded the need to recover the prints quickly. The print circulation network generally started in Bombay and progressed “up country”, eventually leaving British India and entering the “Native States” where British copyright law held no authority. ¹⁷

Where did the non-legal network originate? One of United Artists’ objectives in filing the lawsuits was to discover the source of the piracy. As the lawyers investigated the pirate network, they learned that Victory had imported the prints from English and European merchants. Victory presented United Artists’ attorneys a letter from one of the sellers—M. Baer of the Continental Film Exchange in London. Baer’s cut-rate prices would have been appealing to distributors and exhibitors. In the early 1920s, the average price paid in India for a “quality” American picture was ₹ 5,000 (then about US$ 1,200), which covered the cost of the film itself, import duties, and exhibition rights for three years. Indian exhibitors usually requested a five-year rights window to recoup costs (“Bureau of Foreign”, 1923). A few years later, Baer was offering, in outright sale, prints of Hollywood films for the equivalent of £30–60 (then about ₹ 400–800) in cash, with a film such as The Thief of Bagdad priced slightly higher at £65 (about ₹ 850). ¹⁸ The information from M. Baer’s letter and bills of sale provide an important insight into unauthorized film distribution as it functioned in practice.

M. Baer—whose first name we do not know—rented Hollywood films under a variety of subterfuges and “duped” them. Duping was the industry’s term for taking a positive print and using it to create a film negative, which, in turn, could be used to create more positive prints that were inferior in quality but still playable. The Hollywood films that Baer duped were nearly always versions with French, Portuguese, Spanish, or Italian inter-titles. This was not a matter of preference; instead, the foreign inter-titles came as a result of the weaknesses within Hollywood’s global distribution system. The studios were effective at controlling the circulation of prints in the U.S. and U.K., but the further away you travelled from there, even simply over to Continental Europe, the weaker the controls became.

In his offer to Victory, Baer noted that The Thief of Bagdad and Robin Hood were “without English titles, but as it is practically impossible to secure these subjects in England, you would be well advised to take advantage of the offer”. ¹⁹ Baer knew firsthand how difficult it was to obtain prints with English inter-titles. When United Artists informed its exchanges that Baer was persona non grata, a London exchange worker reported that Baer had recently telephoned him to request English language prints that he could show to British troops garrisoned in Malta. The London worker said no, but Baer had a far easier time acquiring prints in France. ²⁰

In his letter, Baer suggested that since “none of these copies are with English titles it would therefore be necessary to allow for the making of these”. Baer’s comment about the production of new inter-titles points to an aspect of piracy’s generative materiality. When he duped a French print, his English language clients had to show the Hollywood film with foreign inter-titles, insert new English inter-titles, eliminate all inter-titles, or choose some combination of these options. We can turn here to the work of Lawrence Liang (2008), Brian Larkin (2004), Lucas Hilderbrand (2009), and Jane Gaines (2006), who have all shown that unauthorized film circulation can be generative and not simply destructive. The “Bombay piracies” illustrate this proliferating and creative power. Indian audiences who watched the pirated version of The Thief of Bagdad watched a different film than the audiences at Madan’s theaters. As visually degraded dupes with missing, illegible, or newly created inter-titles, the provenance of the pirate Fairbanks prints was literally written onto the films.

United Artists urged its London representatives to “take the necessary steps to prosecute this pirate [Mr. Baer]”. ²¹ From the beginning of the lawsuits, the attorneys placed their hopes on rooting out the “source” of the European piracy. In January 1929, Benjamin Pepper remarked, “One immediate benefit which has already resulted from the United Artists action is the discovery of the source of these pirated films. There seems reason to believe that this was one of the chief sources for many piracies in all countries.” ²² It is unclear from the memo whether Baer was the “source” that Pepper describes, but if so, United Artists’ lawyers were fooling themselves. The real source was the lack of controls over the global distribution network. Baer merely capitalized on these weaknesses.

The Victory Film Company, for its part, denied that it had violated any laws through doing business with Baer. Victory explained it had “openly bought and sold” the prints from multiple sellers over a lengthy period. Victory challenged United Artists’ attorneys to “give us inspection in proof of the alleged proprietorship of the copyright of your clients in British India and the Native States”. ²³ By demanding United Artists proof of legitimate copyright ownership, Victory exposed the vulnerabilities and tensions inherent in global copyright.

Securing Copyright

United Artists’ struggle to assert legitimate copyright ownership in India makes up the bulk of the archival records, but understanding the studio’s difficulties requires an examination of the intersection of policy and practice. To begin at the level of policy, in 1886, the U.K. and nine other nations signed the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention asserted copyright’s historical standards for the jurisdictional protection of intellectual property and sought to regulate relations among signatory nations (Nimmer, 1967). Even as many states joined in the decades after the Convention, the U.S. refused to sign Berne. Although the U.S. was not a signatory, American authors and producers exploited a loophole that allowed them to enjoy some of Berne’s protections. The loophole came in Article 3 of the treaty (amended in 1896):

Authors not subject of one of the countries of the Union, but who shall first publish or cause to be published for the first time their literary or artistic works in one of those countries, shall enjoy for those works the protection accorded by the Berne Convention. (“Berne Convention”, 1886/1896)

Publishing a work in the U.S. did not provide protection abroad. On the other hand, if an author simultaneously published the same work in the U.K., the author obtained English copyright and copyright protection across the other Berne nations and their colonies. The U.S. lawyers believed that any publication in another foreign country within two weeks of American publication counted as “simultaneous”. ²⁴

As a medium, though, film differed from books in one key respect, you could “publish” a book or journal; you could not “publish” a film. You could copy and exhibit a film, but you never published it. For film producers in England and other Berne nations, this distinction had ceased to matter—British laws and the Berne Convention itself had been updated to recognize film as a copyrightable medium. By clinging to an antiquated loophole, however, the American film producers lacked the efficiencies enabled by these copyright revisions. Instead, the Hollywood studios—in consultation with British attorneys—devised a method to publish a work that was copyrightable. Here we can transition from a history of policy to a history of practice. “It has been the common practice to prepare a booklet giving the scenario in more or less elaborate form and publish them in England within two weeks from the first showing of the picture in this country”, noted attorney Benjamin Pepper. ²⁵ Image 3 shows the scenario booklet that United Artists created for The Thief Bagdad—a 30-page detailed plot summary, crediting Lotta Woods with the written summary and Elton Thomas (Douglas Fairbanks’ pseudonym) with the original screenplay. After publishing the scenario booklets in England, United Artists’ agents in London immediately deposited the booklets in “the Five Great Libraries of England”, creating a paper trail of receipts in the event of litigation. ²⁶ No law, single rule, or policy mandated that studios take these steps; instead, the practice grew from the common-sense assumptions of attorneys and workers and became accepted as a matter of course.

By publishing and depositing the scenario booklets, United Artists’ lawyers assumed that the studio could prove British copyright in its stories, which, in turn, offered protection to films based on them. Yet the process was cumbersome and the legal actions in India frustrated attorneys in the U.S. and U.K. about the best way to prove British copyright. As a microcosm of the confusion, consider three conflicting pieces of legal advice that O’Brien’s law firm received. The first legal expert that United Artists’ attorneys consulted was Sir Thomas Strangman, who had gained acclaim among Westerners in Bombay five years earlier for his successful prosecution of Mahatma Gandhi. Now retired from his post as India’s Advocate-General, Strangman suggested to United Artists that they could end the piracies simply by proving they owned the U.S. copyrights. ²⁷ However, Sir Thomas quickly reversed his opinion, advising United Artists of what they already assumed: only proof of English copyright would prevail in a Bombay courtroom. ²⁸ A second lawyer to opine on the matter represented Edith Hull, author of the novel The Sons of the Sheik. Hull’s lawyer remarked that the British and Indian attorneys must be ignorant of their own laws. He insisted that England’s 1915 Order in Council, which offered some protection to U.S. copyrighted works not yet published in England, was all the legal ammunition necessary to wipe out the Victory Film Company and the other pirates. ²⁹

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Image 3.

Credit. Wisconsin Center for Film and Theater Research.

Finally, and on the complete opposite side of the spectrum, there was the opinion of F.M. Guedalla, a British attorney hired by United Artists and frequently employed by other Hollywood studios. Guedalla’s eight-page memorandum on protecting U.S. film copyrights remains a masterpiece of the overcautious “belt and suspenders” approach to risk management. Guedalla listed the steps Hollywood producers needed to take. First, the studios needed to quietly import scenario manuscripts into England. By use of a “secret code”, an American studio representative would telegraph a British agent when the film was exhibited in the U.S. and it was time to publish the booklet. Next, the British agent would deposit the booklets at numerous British libraries. The process annoyed England’s librarians, Guedalla acknowledged, but no matter how much they complained the librarians still had to accept the booklets and provide the receipts. Yet the library deposits alone were not enough. United Artists also needed to sell the booklets at a train station or street corner to demonstrate “public circulation”. Last, the Hollywood studios needed to employ Guedalla’s own firm to build and manage an index of all the sale and deposit receipts—effectively, creating a miniature library of Hollywood copyrights. Guedalla pointed out that all these steps would be unnecessary if the U.S. merely joined the Berne Convention, but since that was an unlikely scenario, a different system was needed. ³⁰

Guedalla’s elaborate proposal—and the studios’ existing “common practice” of publication and deposit—speaks to the materiality of copyright itself. Just as piracy required the material exchange of prints across a global network, proof of copyright depended on a transnational network of transfer, publication, and collection. In fact, the burden of copyright’s material proof exceeded United Artists’ wildest expectations. By acquiring British copyright, United Artists had theoretically acquired copyright in British India. However, even after taking the elaborate steps of publishing and depositing pamphlets, United Artists still had to prove to an Indian judge that it controlled the rights to the films. In our case, the Bombay judge was willing to grant temporary injunctions based on the power of attorney granted by Fairbanks and United Artists, along with notarized letters from England testifying to British publication and deposit of scenario booklets. The injunctions stopped Victory and the other defendants from distributing and exhibiting the three Fairbanks pictures—The Thief of Bagdad, Robin Hood, and Don Q: Son of Zorro. No proof of British publication of Son of the Sheik could be found; therefore, the judge denied the motion for temporary injunction.

The process of transforming the temporary injunctions into permanent injunctions, however, raised both the burden of evidence and the lawsuits’ stakes. Victory Film Company and the other defendants continued to deny that United Artists held any copyright protection to the films in India, while the Bombay court insisted that the plaintiffs provide rigorous proof of the existence of British copyright. But just where did the British copyright reside? The Thief of Bagdad scenario booklet, for instance, credited Elton Thomas, who was a fictional person. The “real” Elton Thomas was Douglas Fairbanks, whose birth name was Douglas Elton Thomas Ullman. The British copyright seemed to reside in a fictional person—or in a person with several identities. The U.S. copyright, on the other hand, belonged to a different type of fictional person: the corporation. Douglas Fairbanks had licensed his services to his production company, Douglas Fairbanks Pictures Corporation, which in turn granted the United Artists Corporation the distribution rights for a period of time. Copyright, then, originated with Douglas Fairbanks yet resided in different fictional persons in the U.S. and England. In the U.S., attorneys and judges had grown accustomed to seeing these sorts of copyright transfers as a matter of course. In the Bombay courtroom, however, the judge and defendants held the American common-sense assumptions about copyright and ownership under a microscope. Using the Western legal institution of the court, a Bombay judge asked Western copyright to prove itself.

Throughout 1928 and the early 1929, United Artists’ transnational coterie of attorneys debated just what proof of copyright would be sufficient to win the cases. The attorneys in Bombay asked for permission to take the depositions of several people in the U.S. and England to prove the chain of copyright. The depositions and travel costs, however, would drive the total legal expenses up to an estimated 25,000 rupees or US$10,000, a high price to pay to protect three ageing silent films from piracy in a third-tier market. The studio’s Bombay and London attorneys justified the legal costs (and their own fees) on the basis that the case would result in an important precedent, one that would benefit all of Hollywood and expedite future legal actions in India. United Artists hoped that the other Hollywood studios, perhaps through the Hays office, would recognize the importance of the suit and share the burden of the costs.

No other studio stepped up to share the costs. Worse still, MGM resented United Artists for the legal strategy it was pursuing. MGM’s legal department, like Edith Hull’s lawyer, believed that Britain’s 1915 Order in Council adequately protected films in England, the British colonies, and the Berne nations. It is not surprising that MGM was alarmed when the Bombay court denied the preliminary injunction against the distribution of Son of the Sheik since MGM relied on the Order in Council as the basis of English copyright; United Artists’ lawsuits threatened to disprove MGM’s entire legal theory. What if the decision in Bombay reverberated in England and the rest of the world? Instead of establishing a precedent that strengthened the protection of U.S. films, United Artists might set a precedent that stripped hundreds of American films of protection, leaving them free to be copied, distributed, and exhibited. ³¹ Rather than killing a few wasps, United Artists had stirred a hornet’s nest.

In the late 1929, O’Brien and Pepper recognized that the cases were too expensive and risky to prosecute. However, United Artists had dug itself in too deeply to simply walk away. “These preliminary injunctions have been pending for some time, and it is necessary that action be taken to bring them to a conclusion”, wrote Pepper. “If we do not go forward with them, the defendants are in a position to move to vacate the preliminary injunction for costs and damages by reason of the failure to prosecute.” ³² Moreover, Victory and its co-defendant Indian Pictures Distributors, which possessed virtually no assets, stood more to gain than lose from the litigation. If United Artists prevailed in court, Victory and Indian Pictures Distributors would simply declare bankruptcy and pay nothing. On the other hand, if the defendants prevailed or United Artists neglected to prosecute the cases, then Bombay companies stood to recoup their legal costs and perhaps earn a premium for damages.

Ultimately, United Artists reached a settlement—Victory Film Company and Indian Pictures Distributors agreed to accept permanent injunctions in exchange for United Artists paying their legal expenses. The total costs incurred by United Artists amounted to 15,000 rupees, or roughly $5,400. In order to further prosecute the case, United Artists would incur legal costs doubling or tripling that amount. In comparing the numbers, Benjamin Pepper begrudgingly remarked that, “the settlement would, therefore, seem to be preferable, even though in so doing we actually pay the pirating defendants some fee”. ³³ In a final, grand irony, United Artists paid the pirates, not the other way around. However, the settlement also suggests that we should stop thinking about the “pirating defendants” as pirates. Victory never denied that they distributed the films; Victory only denied that United Artists owned a legal monopoly to the films in India. In our next section, we explore more fully the complications and role reversals that these cases reveal.

Embodiment, Para-colonialism, and the Limits of the Law

What are the ramifications of pirate distribution and copyright litigation in Indian film exhibition in the 1920s? What do the so-called Bombay piracies have to teach us about international copyright and film history? We would like to suggest four, interrelated conceptual trajectories that are central to the framework of film exhibition in colonial India: materiality, embodiment, territory, and influence.

The first of these trajectories concerns piracy’s materiality. As Indian exhibitors sold the same print outright to one another, the materiality of the print was key to pirate circulation. In fact, it was this materiality—the fact that the physical print had to be exchanged—that allowed for the circumvention of the law. Nowadays, we tend to think about the immateriality of the digital as being central to piracy. Consider, for instance, Torrent-based file sharing. Copyrighted content arrives on a user’s computer through assembling bits of data stored across potentially thousands of other users’ computers. What we see in India in the late 1920s is something different—where the materiality of the media artifact facilitates the creation of non-legal networks. After all, Indian exhibitors would acquire a print through outright sale and then sell it to another exhibitor. If they were found out, they might have to pay a nominal fine and be forbidden to screen the print again, which they would not do anyway since the print had already passed on to the next exhibitor. Because of this materiality problem, Hollywood focused on seizing the physical print as stolen property or tracing transfers in ownership.

Furthermore, the archival record makes clear that the Hollywood distributor wanted the Indian exhibitor to provide a map of the pirate distribution network to trace the originator of the theft. There was the additional problem of how to handle cinema proprietors that had already exhibited pirated prints. Hollywood’s Bombay solicitors sent notices to dealers and exhibitors—but because the outright sales were kept off the pirate distributor books, it was very hard to locate the exchange trajectory. This evidentiary lack presented its own challenges and leads to our next point.

Our second conceptual trajectory concerns the idea of the source and is really a question of embodiment. In this article, we have sketched out an intricate web of pirate transactions, some of which escape the vigilance of the law. One of the essential issues of the legal case concerned United Artist’s desire to locate where piracy originated. What was the source? What was the originary act that constituted the act of piracy—what was piracy’s “primal scene”?

The determination of the source of piracy mirrored the problem of copyright: determining the origin point of ownership. The identity of the copyright holder was distributed across a number of social actors, including film stars, pseudonyms, studios, institutions, and even the personhood of the corporation. Scattered across three continents, this array of copyright holders was not necessarily united in purpose, and could not be called into unity even by the legal proceedings.

The conundrum of embodiment was manifested in the “powers of attorney” that were called for by Indian courts to substitute for American claimants refusing to come to India to testify. Since power of attorney is basically a problem of embodiment and transfer, it attests to the disarticulation of the singularity of authorship. After all, if authorship can be disembodied and transferred to somebody or something else via power of attorney, a certain degree of unpredictability is introduced. The instability of authorial embodiment compounded the uncertainties about the exact date and location of copyright.

A distributed network of ownership for the film could have the effect of maximizing the legal options available to copyright owners but it also created tremendous problems for the actual process of litigation. In whose body does authorship reside? Of course, that question could be deferred, but when that body was called to appear before the law, how could it recreate itself?

It is almost as if, because copyright itself could not clearly determine a singular author, an original pirate needed to be found somewhere. Where copyright failed to fulfill a desire for origins, piracy was asked to do so. But piracy, like copyright, was enabled by an entire network of practices that could not be materialized in a singular figure of either the author or the pirate.

This spatial problematic of embodiment connects to our third trajectory, which concerns the idea of territory. It becomes clear that part of the difficulty in prosecuting the Bombay piracies was the fact that the stereotypes associated with the classical spatial division of originality—with the West as creator and the East as copier—were confounded by the fact that print piracy was happening in the West, with an English distributor sending continental prints overseas.

Part of the problem was the nature of the so-called “Oriental” market itself. For Hollywood, “the Orient” was a massively undifferentiated and problematic space, encompassing India, Ceylon, Burma, Japan, China, Siam, Java, the Federated Malay States, the Straits Settlements, the Dutch East Indies, and the Philippines. ³⁴ United Artists repeatedly tried to find a center to this Orient from which to launch and coordinate its business—its original Far East headquarters were to be established in Shanghai in 1922. But the following year, the head office was established in Tokyo, which served as the first stop for UA Foreign Department executives on a tour to inspect offices in Asia. As Tino Balio (1976) notes in his history of United Artists, “distribution in the Orient was particularly costly because its principal office in Tokyo had to handle the whole territory. The head salesman there often had to go all the way to Bombay, a six weeks’ journey by boat, to sell pictures.”

So, given the vastness and vagueness of the Orient as a market—the Orient has no center because it imagines the abstract center of Empire (see Said, 1978)—how could a company such as United Artists extend and govern its rights in distant territories? What we found during the course of our research is that colonialism offered a mechanism for Hollywood to close a spatial gap. Hollywood piggybacked on colonial regimes—and it was in this sense para-colonial in its operation, existing alongside colonial infrastructures. United Artists attempted to secure its copyrights in colonial India by first obtaining copyright in Britain and then attempting to extend copyright through the Empire via British authority. At this time, as Paul Saint-Amour (2003) notes, British copyright was designed to protect the “talent of Empire”, while copyright reform was considered a deliberative form of colonial governmentality.

However, this piggybacking created a special problem in the so-called “Native” or “Princely States” in India, those states that were somewhat independent of British colonial dominion and under the authority of dynastic monarchs and princes. Since the native states were not under the dominion of British India, Hollywood could not rely on colonial copyright being enforced there. Hollywood could not piggyback on British colonial rights; so American diplomats appealed to princely vanity and an aspirational modernity that mediated between nativism and foreignness. ³⁵ In a letter to United Artists’ O’Brien law firm, the U.S. Consul in Bombay, Wilbur Keblinger, warned that The Thief of Bagdad and Robin Hood were scheduled for exhibition in the Native State of Baroda. Keblinger offered hope, though, that he could resolve the matter “politically” because “Baroda State rather prides itself on being progressive and on following the practice of modern states and my appeal that the exhibition of contraband films is not permitted in any important country may result in some definite action”. ³⁶

The irony of Keblinger’s call for the Dewan of Baroda to be “progressive” is that the U.S. had declined to join the Berne Convention, the epitome of a modern, robust international copyright system. In other words, at a time when joining Berne meant that one had acceded to one’s obligations as a modern, civilized nation, U.S. officials implored maharajahs to become civilized by recognizing American works! Nevertheless, it is clear that copyright and piracy created a field of relations that only partially and strategically mapped onto colonial legality. ³⁷

Our final trajectory deals with imitation, emulation and the limits of the law. Extensive work in Indian film history and historiography has demonstrated how Fairbanks and his films were widely influential on Indian film practice beginning in the 1920s. Indeed, in the 1927 ICC Report, the central policy document of the time, Fairbanks emerges as a critical marker for Western influence:

There is no prejudice against western films, which are much enjoyed and appreciated. There are certain types of western films which appeal to all classes and communities. The spectacular super-films and the films featuring Douglas Fairbanks, Harold Lloyd, and Charlie Chaplin, have a universal appeal. A film in which any of these world-famous figures of the screen appears can be sure of an enthusiastic reception in any cinema in India. The most popular film ever shown in India was The Thief of Bagdad, with Douglas Fairbanks in an Oriental setting. (“Indian Cinematograph”, 1928)

Given this broad appeal, it is little wonder that short segments of The Thief of Bagdad found their way into some Indian stunt pictures of the time, as enterprising exhibitors cut strips of celluloid from the Fairbanks film and spliced them into Indian features. ³⁸ This material technology of copying, which deployed Fairbanks’ image as a kind of special effect that simultaneously disrupted the narrative and cemented its fantastic status, was just one small element in a broad array of influences. Neepa Majumdar (2009) and Rosie Thomas (2005) have shown how actors from Master Vithal to “Fearless” Nadia internalized Fairbanks’ acting style and deliberately invoked the iconography associated with his performance and star image. ³⁹ As Thomas further suggests, the Indian reception of The Thief of Bagdad must be placed within a long-established popularity of films based on The Arabian Nights, including Hiralal Sen’s “lost” Ali Baba (1903) film that may have inaugurated Indian feature production as early as 1903 (see Thomas, 2014).

In addition, Prem Chowdhury (2000), Kaushik Bhaumik (2002) and Valentina Vitali (2008) have shown how the all-India popularity of Fairbanks’ films helped inspire a number of remakes and enliven the stunt-film as a significant genre in Indian film production in the 1920s and 1930s. Indeed, the United Artists collection also contains documents from an early 1930s lawsuit against an unauthorized Indian remake of The Thief of Bagdad. The circumstances and significance of the remake—which was labeled as “piracy” by the studio—is something we plan to take up in a subsequent article.

The scholarly literature makes clear that the Bombay piracies need to be placed within a much broader cultural logic of emulation that is not just about the law. Clearly, the idea of the “copy” infused the historical relations between Bombay and Hollywood industries, drawing Hollywood into the Bombay media ecology and vice versa, catalyzing mutual forms of contamination. For example, for decades Bombay was popularly known as the “Hollywood of India”. The idea of Bombay as Hollywood’s Indian copy, which began in the 1920s, had two effects—one was a failure to imagine a major film industry in non-American terms and the other was to elevate Bombay cinema to the global ranks. ⁴⁰ For Bombay cinema, Hollywood historically represented both a culture of aspiration and one of anticipation. This meant that Bombay cinema was caught between being not-quite and not-yet Hollywood. Thus, the “copying” enacted by the Bombay piracies cannot simply be subsumed under the concept of legality. Our final example demonstrates this clearly.

Alongside the pirate distribution of Fairbanks films, there were also Indian distributors claiming some special connection to Fairbanks himself in order to demonstrate their distinctiveness in the crowded field of Hollywood pirates. Most notable of these, and the one that totally flabbergasted United Artists and Fairbanks himself, was the so-called “Pickfair Pictures Corporation” (PPC) based in Bombay. The UA archive contains a burst of correspondence from April and May 1928, at precisely the same time that Bombay piracies were being prosecuted. The Bombay PPC sent numerous requests on its company letterhead, which used images of Mary Pickford, Douglas Fairbanks, and their iconic Hollywood home, Pickfair. This letterhead and the images framed, as PPC explained it, their acknowledgment of “the names and portraits of the two peerless and successful artistes in the Universe”, a tribute that they claimed—in a remarkable letter to Mary Pickford herself—was “an original idea”. ⁴¹ Madan’s managing director alerted United Artists’ Tokyo office, wondering if PPC was “legally entitled to put the two photographs in the letterhead forms as they have done and also style themselves ‘Pickfair Pictures Corporation’ so as to mislead the public into thinking that they have the specific sanction of the said stars for trading under the above name and style”. ⁴² In turn, Fairbanks Pictures Corporation contacted the law firm it shared with United Artists, noting that Bombay PPC “thinks so highly of our principals that they adopted their names and even went so far as to use their photographs on their stationery”. ⁴³

The documentary evidence suggests a series of correspondences between PPC and Madan Theatres, with the pirates telling the authorized importers of Hollywood in India that they had pictures to sell them. PPC even congratulated Madan on their successful prosecution of other unauthorized distributors, noting that they were:

… glad to learn that you are taking legal proceedings to Bombay Court against the importers of unauthorized and pirated copies. This will safeguard the rights of the people who have paid heavy royalties. We wish you every success against importers who infringe the rights of other firms. ⁴⁴

Earlier the same month, PPC wrote to the editor of Movie Mirror in Madras, asking the publication to correctly attribute a film to Madan and notify them of their error. ⁴⁵

PPC also wrote letters to the American Chamber of Commerce asking to be put in touch with distributors and Hollywood studios such as MGM and United Artists, offering their services in exhibiting “mighty productions” and “ORIENTAL style pictures” (caps in original) in India. ⁴⁶ These letters, either unsigned or signed by H.G. Naterwalla, often contain the same boilerplate genuflection.

Inevitably perhaps, the Bombay PPC wrote to both Mary Pickford and Douglas Fairbanks themselves, at their Hollywood addresses (c/o Pickfair!). Through this letter, from the pirate Pickfair to the original Pickfair, the pirate sought sanction and succour from the source, without apology (see Image 4) —even promising to widen Pickford and Fairbanks’ fame in India. Though they clearly possessed reproduction-quality photographs of the stars, they asked for autographed photos, promising to frame them at the Bombay PPC office. The letter is worth quoting at some length:

We adore you and have never missed any of your pictures. We have seen almost all of your pictures and liked all of them the most, and we are unable to say which of your latest productions was the best, for all of them were best, full of stunts fights, intrigues and in short all that a super film should have and all that the public requires. Sometimes we think that THE MARK OF ZORRO was the best, but at the next moment we put that aside and come to think that THE THREE MUSKETEERS should have first place. Then some of our friends talk high of DON “Q”, THE BLACK PIRATE and THE GAUCHO. Thus our minds waver and we are rendered helpless to judge about your films. In fine [sic] all your pictures are best. The most successful film in India was your THE THIEF OF BAGDAD. It was shown continuously for 15 weeks at one theater in Bombay, when it first appeared. It is still going very strong all over India. ⁴⁷

OPEN IN VIEWER

Image 4.

Credit. Wisconsin Center for Film and Theater Research.

Fairbanks and United Artists were stunned that the natives would be so brazen in their admiration and piracy. Their legal team initially focused on the bold affront of actually displaying the photos of Mary and Doug on the Bombay PPC letterhead. They considered suing the company for this unauthorized display, but dropped the idea, thinking that the company would not remain in existence for long, acknowledging the short-term nature of Indian film distribution that made piracy prosecution so difficult. United Artists’ lawyers also noted the infraction’s “unimportance of injury to Miss Pickford and Mr. Fairbanks”, adding that PPC is in “a country so remote from California where our clients have established that name”. ⁴⁸

The PPC letter breaks many of the normative rules about trespass, property and infringement that define the field of legality. The PPC clearly recognized the affective possibilities of copying. Hence their letters are about emulation, enthusiasm, and entrepreneurship, an economy of conventions only partially assimilable to copyright’s legal logic. Hollywood may have thought the PPC brazen in their naiveté. Yet, the archival evidence demonstrates the PPC’s brilliantly canny opportunism. They neatly inverted orientalism and copyright’s jurisdictional logic. Here are pirates who looked to Hollywood for “oriental style pictures”, noting that India “takes great delight to witness the pictures of its own fashion and customs” (emphasis added). ⁴⁹ The Orient is invoked as both an imagined space of fantasy and a national referent. Here are pirates that traded illegally on the names of Hollywood icons, recognizing at the same time that an autograph testified to the material reality of the star. Here, Hollywood is infinitely transposable but still benefits from physical attestation.

The PPC letter maps the circuitous routes of para-colonial piracy—correspondences sent from one destination to another, both with the same name. In this circuit, originality emerges as a kind of “social trace” between source, iteration and translation (Gray and Gómez-Barris, 2010): a temporary arrangement where the bodies of the author and the pirate shift and inhabit each other’s houses.

In the decades to come, media piracy discourse would frame this form of cohabitation as a parasitical occupation. However, for a brief moment in Hollywood’s relationship with India, the pirate was more neighbor than monster. We have shown how Hollywood copyright went awry during the early globalization—that it was, in fact, less than sure-footed from the start. The struggle over the meaning of authorship and ownership in a case that was important enough “to decide film copyright”, as the New York Times put it, resulted in a shaky compromise (“To Decide Film Copyright”, 1928). As the O’Brien team put it to their Bombay representatives, “in view of local conditions with which we are not familiar, certain illegitimate exhibitions will have to be tolerated”. ⁵⁰ Tracing the effects of this struggle in the legal arena reveals a shadow economy that casts a light on the reality of Hollywood film distribution in colonial India (Lobato, 2012).

During this time Hollywood meant so many things in India: veering wildly from its self-conception as a form of universal moral uplift for a backward people, to what British authorities saw as an instigator and index of colonial precariousness, and to what some anti-colonial social reformers derided as a sign of Western debauchery. At a time when it was fighting for its life in India, at least Hollywood could find a minor reprieve in the acts of those who would copy and praise it.

In his 2012 Frames speech, MPAA Chairman Chris Dodd envisioned a cooperative future where Hollywood and Bombay cinema shared an understanding of trespass. Yet, if we choose to look backwards rather than forwards, we can see that both industries once suspended rather than enforced the rules of property.