By International Media Lawyer Hubert Best

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SUPREME HEADQUARTERS
ALLIED EXPEDITIONARY FORCE
PSYCHOLOGICAL WARFARE DIVISION
No: 1 APDC London W1
Film Section
24th February 1945

Subject: Screening of
impounded German films
1. Attendances at screening of German impounded films are restricted to authorised personnel only

2. All Departments concerned are requested to co-operate in enforcing this regulation

Following this order, at 6.00 p.m. on Thursday 1st March 1945 at the Studio Film Laboratories, Dean Street, London W1 were screened: Feuertaufe "A War Documentary" and Der grosse Schatten "A Tobis Film" Director: Paul Verhoeven. Cast: Heinrich George, Heidemario Hatheyer and at 6.00 p.m. on Monday 5th March 1945 at the same venue: Kleine Maedchen -- grosse Sorgen "A Terra Film" Produced in 1941 Director: B Barlog. Cast: Hannelore Schrott, Fritz Odemann and Triumph des Willens "A Documentary".

These two occasions must have been amongst the first UK screenings of examples of the now increasingly well known genre of Nazi propaganda films. Many of them had been made by the "Ufa", the Universum-Film A.G., which had been founded in 1917 by the German High Command, and taken over by the Nazi authorities in 1933. In that year, in obedience to the Nazis' policy against Jewish businesses, the Ufa directors terminated all Ufa's contracts with Jews. The same year saw the production of Ufa's first two Nazi propaganda films, Hitler Youth Quex and Fugitives.

Both Hitler and Goebbels believed that film was an extremely important means of influencing the German nation's mind. Fritz Hippler, the director of the anti-Jewish Nazi propaganda film The Eternal Jew (which likened Jews to rats) explained how this belief found its practical expression by means of such films as those made by Ufa. Speaking in a BBC interview in 1992, he said, "Hitler wanted this film … to prove that Jewry was a parasitic race … which should be excised from the rest of humanity. For more than 13 months this film was changed, re-cut, enlarged and so on at least more than a dozen times, not to mention the different versions of commentary which became still more blood-thirsty, more aggressive."

The title sequence states that The Eternal Jew is "a documentary film (which) shows us Jews the way they really are, before they conceal themselves behind the mask of the civilised European." (In Germany today this film is amongst the so called "Forbidden Films": it cannot be shown as a whole without permission from the political education department and TV companies are allowed to use no more than three minutes.) This film can be credited with having played a part in the final solution, for when Goebbels saw the rushes he is reported to have said, "Dieses Judentum muess vernichtet werden -- this Jewry must be annihilated … they are no longer human beings, they are animals. It is therefore no humanitarian task, but a task for the surgeon. One must make cuts here, and that in a most radical way. Or Europe will one day collapse from the Jewish disease."

The Jew Suess opened at the Venice Film Festival on 6 September 1940 and The Eternal Jew on 28 November the same year. This film was used to justify and give legitimacy to Hitler's call for the extermination of the Jews: "What one cannot solve with fair means one has to solve with violence, because it cannot go on like this."

The official propaganda -- including films like these -- had the effect intended by the Third Reich on a sizeable part of the German nation's minds is witnessed not only by the events of history but also by this German ex-soldier's testimony in a post-war German de-nazification Court hearing, "I would also like to say that it did not occur at all to me that these orders could be unjust … I was then of the conviction that the Jews were not innocent but guilty. I believed the propaganda that all Jews were criminals and sub-human … The thought that one should disobey … the order to participate in the extermination of the Jews did not therefore enter my mind at all."

Both propaganda films and German newsreels were captured by the allied forces at the end of the Second World War. The national archives of the United States include captured copies of Triumph of the Will, The Jew Suess, Campaign in Poland, Baptism of Fire, Victory in the West, Submarines Westward, the UTO, many Deutsche Wochenschauen (German Weekly Newsreels) and various scientific films. The Imperial War Museum has a large collection of Third Reich films including Victory in the West, The Eternal Jew, Baptism of Fire, Campaign in Poland, as well as Leni Reifenstahl's Triumph of the Will (1935), The National Film Archive of the British Film Institute's stock include Baptism of Fire, The Great Shadow and Kleine Maedchen -- Grosse Sorgen (Small Girl, Great Care). The Army Kinema Corporation also received films, including the famous film of the Berlin Olympic Games (deposited with the Imperial War Museum).

We have already seen the restriction order placed by SHAEF's Psychological Warfare Division on the screening of such films in England in 1945. We can follow the history in the UK of one of the more famous of these films from that early screening -- Triumph of the Will. It was an 11 reel film of the Nazi party rally at Nuremberg in November 1934 in the form of a "triumphant military review of the Fuehrer's loyal followers" -- and the credits state that the film was "produced by order of the Fuehrer by Leni Riefenstahl." The production company was the Reichsparteitagsfilm, set up by Goebbels' Ministry of Propaganda specially for the purpose and disbanded after the production was finished.

It was not clear where the Imperial War Museum's copy actually came from. A collection of Nazi films from Hamburg was impounded by the Government Films Customs Officer at Tilbury and received by the Psychological Warfare Department of SHAEF. A list of these films was made by the Foreign and Commonwealth Office in 1951, and in November 1952 some of them were handed to the British Film Institute -- such as its copy of Ohm Kruger. Some were deposited with the Imperial War Museum, whilst other such films came to the Museum from other government departments -- for during the war and until 1951 the Museum's films holdings were administered by the Stationery Office and then until March 1953 by the War Office, when they were returned to the Museum itself. One document of the time suggests that the Imperial War Museum's copy of Triumph of the Will was amongst the films that were handed over then in 1952, stating that there was a split negative and a combined negative and positive. The negative had come from Germany originating in 1934 (the document adds that the film "has great political and ideological significance"). However no clear documentation of the film's arrival in England could be found at the time, despite searches by the Enemy Property Branch of the Board of Trade, the War Office, the Treasury Solicitor, the Imperial War Museum, the Central Office of Information and the Foreign Office!

In the end, samples of the various copies were sent to Kodak Limited in London where they were analysed by the Technical Service of the Motion Picture Division. It transpired that none of the copies was German film stock at all, but they were all made in England and the USA between 1939 and 1942. Most likely the copy shown at the Studio Film Laboratory in 1945 was a copy of a German original which the Ministry of Information had had duplicated during the war for information purposes.

There -- in the Imperial War Museum's vaults -- these copies of Triumph of the Will remained unremarked until 1959, when the Museum received a letter from Leni Riefenstahl herself asking for a positive print or dupe negative of the Museum's copy as hers had been destroyed -- "as you might know I once produced the picture and still own all rights of the picture." It was this request and statement which started off the goose chase described above, to find out where the Imperial War Museum's print had come from and when. In 1959, whether Leni Riefenstahl should be given a copy of such a film at all was still a sensitive political decision; on the other hand, where the print had come from and when would establish the copyright status, and whether Leni Riefenstahl's claim to own all rights was correct.

Leni Riefenstahl was a controversial figure. Her film credits claim that Triumph of the Will was "produced by order of the Fuehrer." Later Leni Riefenstahl claimed this was not so, but that on the contrary she and her camera crew had in fact been harassed by members of the Propaganda Ministry and other Nazi officials during the shooting of the rally, and that they had attempted to remove her equipment -- and at one stage indeed did remove her chief cameraman Hans Ertl. In the post-war German de-nazification Court she was accused of being involved in a Polish massacre in 1939, using concentration camp prisoners as extras in her film Tiefland, being a member of the Nazi party, sharing the Nazi party's anti-Semitic views, benefiting from the Nazi regime and even of having had an actual liaison with Hitler. She denied all these accusations, and the Court adjudged her a "Mitlaufer" -- a fellow traveller -- and she forfeited the right to hold public office and was fined a substantial sum. She subsequently went off to seek solace and new film inspirations amongst the Nubian tribe of North Africa. On advice from the government, the Imperial War Museum refused her request for a copy, and did not respond to her rights claim.

In 1960, the BBC produced a Profile of Leni Riefenstahl in a series called The Cinema of Today. They wanted to use excerpts from Triumph of the Will (there had previously been a programme by Terese Denny called Portrait of Power which had used short extracts from it). Leni Riefenstahl's London solicitor claimed that she was the copyright owner of her films and on her behalf claimed the rights of the copyright owner in the UK: the BBC would need Leni Riefenstahl's consent -- and to pay her a copyright licence fee -- to use extracts from Triumph of the Will. The Treasury Solicitor advised that the Enemy property Act of 1953 had extinguished the copyright in Triumph of the Will in the UK. He wrote, "Ms Riefenstahl's consent to its use is unnecessary and should not be acknowledged." Leni Riefenstahl's solicitor then claimed that she owned the film stock. Again the Treasury Solicitor advised that the Enemy property Act 1953 had also extinguished the title of the previous owner of the physical property of the film (anyway, the Imperial War Museum's copy of the film was clearly never Leni Riefenstahls's being UK and US stock).

Although she was refused copyright royalties, Leni Riefenstahl nevertheless accepted an invitation to put in a personal appearance, as reported in the Daily Herald of 5 January 1960:

"HITLER'S GIRL HERE? WHAT A CLANGER!"
… they have invited German film actress Leni Riefenstahl, once Hitler's favourite girlfriend, to lecture in London. She is the girl who said of the Fuehrer: "He is beautiful. He is wise. A radiance streams from him." Hitler called her "the perfect German woman" ….

Also in 1960, Granada TV wanted to use other Nazi era films: Jew Suess, Ohm Kruger, The Rothschilds, Eternal Forest and The Eternal Jew. When the National Film Archive received Granada's request it had to ask the Foreign Office's consent to release these films, as they had been deposited with the BFI on condition that they would only be viewed with the Foreign Office consent. In 1945 such films had been considered so sensitive that only authorised personnel were allowed to see them. By 1960 the official view of the desirability of public viewing had changed: "In present circumstances we do not think it necessary to raise any objection to the showing by Granada TV Network of any of these Nazi films for whose showing our prior consent is required." This consent was given on condition that the films would not be shown outside the United Kingdom -- but this was a copyright issue: the Enemy Property Act 1953 had extinguished the copyright in the films, but this law only had effect in the United Kingdom, so it did not affect any rights that might subsist outside the UK (we will look at those later).

The Enemy Property Act 1953 had the effect of extinguishing German enemy copyright interests retrospectively, with effect from the date on which the relevant work was seized. (Most of the provisions of the 1953 Act were repealed in 1976, but this did not affect the copyright in the German films, which once extinguished, the mere repeal of the 1953 Act was not sufficient to revive.) This law covered all film brought into what were then His Majesty's dominions or the territory of an Allied Power, at any time between 3 September 1939 and 9 July 1951 (hence the enquiry as to when Leni Riefenstahl's film had been brought into the UK). The rights which were extinguished were those belonging to German enemies, whether German citizens or companies established in German territory (these are defined in detail in the Act).

In 1962 the Imperial War Museum's copy of Triumph of the Will was shown at the Cameo-Poly Cinema in London. It was still thought enough of a political hot potato for the Treasury Solicitor to be consulted -- but again he and the then director of the Imperial War Museum had no objection to its being shown, and (as in 1960) were only concerned about copyright considerations.

This was not the case in Germany: in the early 1960's the German police seized a copy of the film The Jew Suess in Luebeck, and the German Supreme Court then declared that the film infringed the constitution. (The producer Deit Harlan claimed to have based his Jerra Filmkunst film on the novel by Lion Feuchtwanger, whose widow tried to prevent the film being shown by claiming that the film infringed her copyright.)

In 1963 the German government set up the wholly-owned Transit-Film Gesellschaft mbH in Munich, to administer the rights in such films on behalf of the Ministry of Finance (for the Federal Republic was the Third Reich's successor in title) and Transit bought out many right which it did not receive from the government, including Ufa Films Truxa, Hotel Secher, Unter heisse Himmel, Zu neuern Ufer, and Hans Steinhoff's Robert Koch, the Fighter against Death which compared Koch'e heroic struggle against the TB bacillus with the Third Reich's heroic struggle against the Jews as "politically and artistically valuable", "of value to youth" and so on. Transit began showing these Nazi films in the Rio Film Theatre in Munich four times a day, under the title The Best of Yesterday. Transit also began selling footage, in 1964 charging £3 a foot for world rights excluding West Germany and £1.16 a foot extra for West Germany (very high prices for the time).

Transit included Triumph of the Will in its catalogue. Leni Riefenstahl was still not giving up her copyright claim over the film, and took Transit to Court in Germany, claiming that the rights were hers. The Court of first instance held that the rights were with Transit. Leni Riefenstahl appealed, and the German Federal Supreme Court of Karlsruhe ruled on 10 January 1969 that the copyright was not vested in Leni Riefenstahl but in the former Nazi party (NSDAP -- the National Socialist German Workers' Party), that under German law the German state was heir to the assets and obligations of the former NSDAP, and administration of the copyright had been delegated by the German State to the state owned company Transit-Film GmbH of Munich.

Transit was back in the German Courts the following year. In 1967 Transit had granted Erwin Leiser a non-exclusive licence to include 39.5 metres of Deutsche Wochenschau number 29 of 1941 and 25 metres of the documentary film Goebbels in his documentary called Germany, Awake! Transit licensed Leiser to use this material in the then Federal Republic of Germany and West Berlin. Leiser then wanted to show Germany, Awake! Abroad, and also wanted to use the Transit material in another film. Transit claimed further fees.

In return, Leiser claimed that the material "lacked the personal imprint which is a precondition for it being granted copyright protection … the simple filming of events and sequences as they occur without any personal creative process".

This distinction between actuality and creative use was to prove crucial not just in this case but in the way Transit was -- and continues to this day -- to fight for its right to control the Nazi film heritage.

Read: NAZI FIMS (Part Two)

Hubert Best, International Media Lawyer

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Email: hubert.best@twobirds.com