# Films in the public domain-- how? **URL:** \ **Category:** Factual Questions\ **Created:** [August 4, 2003, 6:37pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944 "2003-08-04T18:37:42Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![NFlanders](https://avatars.discourse-cdn.com/v4/letter/n/a9adbd/32.png) [@NFlanders](https://boards.straightdope.com/u/NFlanders)\ **Post date:** [August 4, 2003, 6:37pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/1 "2003-08-04T18:37:42Z")
What is the procedure with films entering into the public domain? I assume that anyone can then put out a copy, no matter how bad the quality (copy of a copy of a copy). My question is, though these films are in the public domain, someone has to own the original prints. Can’t the film company just restrict who has access to the original? I realize that Disney may make this question moot as it intends to own the copyright to Steamboat Willey forever. ---
**Author:** ![Master\_Wang-Ka](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/master_wang-ka/32/3325_2.png) [@Master\_Wang-Ka](https://boards.straightdope.com/u/Master_Wang-Ka)\ **Post date:** [August 4, 2003, 6:58pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/2 "2003-08-04T18:58:08Z")
Films can enter the public domain in a variety of ways. The old Hammer horror classic “Horror Express,” with Christopher Lee and Peter Cushing, is PD due to a technical screwup with the legal process, from what I understand. A more common situation is simply when the copyright expires. This is how “Nosferatu” got to be PD… it got made, it got sued by Bram Stoker’s estate, and all extant copies were taken out and burned when the filmmakers lost the suit. …and then, a copy got found… AFTER the copyright on “Dracula” had expired. It’s legal as taxes now, and public domain to boot. Restricting access to a film’s master can be holy hell, though, if you intend to make any money off the film. Pirate copies of nearly ANY Disney film can be had, simply due to people wandering into theatres with micro-camcorders. Once a decent copy is made, you cannot restrict doodly-squat any longer… and that goes triple once it’s been digitized and made available on the Internet… ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [August 4, 2003, 7:07pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/3 "2003-08-04T19:07:55Z")
Films made in the US prior to 1923 (or is it 1924 – I always get confused) are public domain. You can do whatever you want with them – release them, put them as computer files, sell DVDs, etc. The film company has no say. Films made between 1923 and 1977 (actually, the practical cutoff was about 1959; anything after that would be under copyright when the copyright law was changed so renewal was no longer required) may or may not be PD, though most are. However, if the copyright holder did not bother to renew the copyright, it may be public domain. This is what happened to “It’s a Wonderful Life\*” and chances are there are other obscure films of that era whose owners figured were worthless when renewal time came up. You’d have to search to see if the copyright has expired, though. Disney wouldn’t have the slightest problem if Steamboat Willie went PD. Mickey Mouse is trademarked – which never expires – so anything portraying him is violating trademark and would be taken off the market. Contrary to the urban legend, the increase in length of the copyright period from 50 to 70 years after death has little to do with Disney and everything to do with Adolph Hitler (“Mein Kampf” was about to go PD, so the Bavarian government, which owns the copyright so it would stay out of print in Germany, asked for a general increase in the German copyright law, which had to be acknowledged by other countries). \*The movie is PD, but the music had its copyright renewed, so the owners of that copyright were able to get protection for the film even though it had gone into PD. In theory, if you show the film without a soundtrack, it’s PD. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 4, 2003, 7:54pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/4 "2003-08-04T19:54:11Z")
> [@](#): > > Mickey Mouse is trademarked – which never expires – so anything portraying him is violating trademark and would be taken off the market. It’s my understanding that, if _Steamboat Willie_ were public domain but the trademark on Mickey remained intact, then _Steamboat Willie_ could be distributed, shown, etc. with complete freedom by anybody, but that nobody but Disney would be able to make new material featuring Mickey. Does distributing a legally-made public domain work really violate the trademarks of characters in that work? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [August 4, 2003, 8:29pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/5 "2003-08-04T20:29:23Z")
No, you have it correct. The ability to sell a product and the ability to create new works are treated separately in U.S. law. And elsewhere. The character Sherlock Holmes remains under copyright because the last books were put out in 1927, but anyone can reissue the earlier books without paying royalties to the Doyle estate. As far as I know, however, no publisher will put out a Holmes pastiche without permission from the Doyle estate, although they are - obviously, from the hundreds of Holmes books put out in recent years - very liberal about saying yes. (Holmes _parodies_ are always allowable under First Amendment rights, however.) And **Chuck** , you got it right this time. Before 1923 it is. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [August 4, 2003, 8:38pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/6 "2003-08-04T20:38:31Z")
> [@](#): > > \*Originally posted by RealityChuck \* > **Contrary to the urban legend, the increase in length of the copyright period from 50 to 70 years after death has little to do with Disney and everything to do with Adolph Hitler (“Mein Kampf” was about to go PD, so the Bavarian government, which owns the copyright so it would stay out of print in Germany, asked for a general increase in the German copyright law, which had to be acknowledged by other countries).** You’re trading one urban legend for another. And you’re misunderstanding the obligations the United States does and does not have under international copyright conventions. To answer the OP, any work originally published in the United States before 1923 is now in the public domain. Any work originally published in the United States 1923-1949 is now in the public domain if the copyright claimant failed to renew the original 28-year copyright. Any work originally published in the United States from 1950 to March 1, 1989 is still under copyright if a proper copyright notice was affixed at the time of publication (or the lack was remedied within 5 years of publication). Any work originally published in the United States from March 1, 1989, onward is under copyright, no matter what. Public domain copies of movies are notorious for their inferior quality, since the publishers are working from copies several generations away from the originals. As to “Can’t the film company just restrict who has access to the original?”, there are several problems with that. The first is that “access to the original” is not necessary, only access to copies. Second, the copyright claimant makes income by legally distributing copies of the film. To withdraw the film from circulation to keep it from being copied would be like burning down the house to save it. It would dry up _any_ revenue from the film, which is worse than having others cut in on your revenue from the film. Third, even if the copyright claimant withdrew all copies of the film from circulation just before the copyright expired, there would still be pirated copies made by collectors when the film was in circulation. Those pirated copies, of course, would soon become legal. **RealityChuck** , you’ve repeated several times on these boards the story about Disney using character trademark to foil the public domain status of a work, but can you give me an actual legal citation for this? I cannot find any such case (and it’s not Disney v. Air Pirates). Until then, I remain under the belief that character trademarks cannot be used to foil the copying and distribution of works in the public domain. ---
**Author:** ![N9IWP](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/n9iwp/32/3154_2.png) [@N9IWP](https://boards.straightdope.com/u/N9IWP)\ **Post date:** [August 4, 2003, 8:45pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/7 "2003-08-04T20:45:16Z")
I’ve heard the “Mein Kampf” story, and I’ve heard the argument that people are living longer and thus copyrights need to extended. Anyone have a definitive cite? Couldn’t they just special case MK? “Science and Health” by Mary Baker Eddy seems to be special cased (or not) see [http://www.copyright.gov/title17/92chap3.html](http://www.copyright.gov/title17/92chap3.html) Brian ---
**Author:** ![NFlanders](https://avatars.discourse-cdn.com/v4/letter/n/a9adbd/32.png) [@NFlanders](https://boards.straightdope.com/u/NFlanders)\ **Post date:** [August 4, 2003, 8:54pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/8 "2003-08-04T20:54:27Z")
If the Disney thing is a UL, then a lot of people have been taken in: > **[Copyright case threatens Disney](https://www.theguardian.com/business/2002/feb/20/8)** > > Walt Disney could lose copyright over Mickey Mouse in as little as two years after the US supreme court agreed to hear the arguments for overturning existing rules. [http://www.cbsnews.com/stories/1998/10/16/deleted/main20242.shtml](http://www.cbsnews.com/stories/1998/10/16/deleted/main20242.shtml) It sounds like they DO have a problem with the copyright ending. I don’t understand the difference between copyright and trademark. Although Disney has trademarked these characters, what’s to stop people from including them in new movies? Nothing, right? Also, I was wondering where companies would get copies of a movie newly in the PD. Wouldn’t they have to pay someone with a master to copy it (assuming they wanted to put out a quality product)? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 4, 2003, 9:22pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/9 "2003-08-04T21:22:09Z")
> [@](#): > > Although Disney has trademarked these characters, what’s to stop people from including them in new movies? Nothing, right? No, the trademmarks are to stop people from including them. If you make a movie using Mickey Mouse, without getting permission from Disney first, you’re going to have a lot of very unfriendly lawyers coming after you. And in this case, those unfriendly lawyers will have the law very firmly on their side. Of course, if you do get permission (which would probably involve a lot of money changing hands, at the very least) you can put Mickey Mouse in a movie. And **Walloon** , a minor nitpick: > [@](#): > > Any work originally published in the United States from March 1, 1989, onward is under copyright, no matter what. Isn’t it possible for a copyright owner to deliberately release a work into the public domain? In that case, it’s possible that a recent work would be PD. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [August 4, 2003, 9:23pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/10 "2003-08-04T21:23:12Z")
**NFlanders** , your last question was answered in my previous post. Public domain copies of movies are notorious for their _substandard quality_. Believe me, I’ve bought enough of them to know. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [August 4, 2003, 10:06pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/11 "2003-08-04T22:06:43Z")
> [@](#): > > \*Originally posted by Chronos \* > \*\*And **Walloon** , a minor nitpick:Isn’t it possible for a copyright owner to deliberately release a work into the public domain? In that case, it’s possible that a recent work would be PD. \*\* The author would have to put an explicit notice on the work disclaiming any copyright to the work. > [@](#): > > _Originally posted by NFlanders_ > **Although Disney has trademarked these characters, what’s to stop people from including them in new movies? Nothing, right?** New movies? The trademark. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [August 4, 2003, 10:46pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/12 "2003-08-04T22:46:50Z")
> [@](#): > > \*Originally posted by Walloon \* > \*\ ***RealityChuck** , you’ve repeated several times on these boards the story about Disney using character trademark to foil the public domain status of a work, but can you give me an actual legal citation for this? I cannot find any such case (and it’s not Disney v. Air Pirates). Until then, I remain under the belief that character trademarks cannot be used to foil the copying and distribution of works in the public domain. \*\* It wasn’t “Air Pirates”; Disney went after them, but that was for an original work using the images, and Air Pirates argued that what they did was protected under parody. The lawsuit was against either Kitchen Sink Press or Eternity Publishing (I’ve seen both names mentioned), who published a book of Disney newspaper cartoons (“The Uncensored Mouse”) that had gone into the public domain. Disney sued claiming trademark violation. The publisher settled when they saw they were going to lose in court, and were required to stop publishing any more copies of the book, though they were allowed to sell any copies they had already printed. The agreement gives Disney more than enough ammunition to shoot down any other attempt. Also, if you think it’s not a trademark violation, explain the difference between making a copy Mickey Mouse in “Steamboat Willie” and copying Mickey’s image (from the same PD period) and putting it on a T-shirt. Only Disney can decide who sells merchandise with their trademarked characters on it. > [@](#): > > You’re trading one urban legend for another. And you’re misunderstanding the obligations the United States does and does not have under international copyright conventions. No. Germany did pass the extension for the purpose of keeping Mein Kamf out of the public domain (the timing makes that clear). All other Berne signatories were required to go in line with German copyright law and increase the length of time to 70 years. (They actually should have done like GB did with Peter Pan instead of changing the entire law). Granted, I simplified the issue, but then, the issue has been oversimplified so much (“It’s all the Mouse’s fault”) that a simple statement is more likely to get attention rather than going into the nuances. I know that the US isn’t a full Berne signatory and can make its law independent of other states. But once the Berne Convention increased the term, it gave the US the idea to do it here, though perhaps for different reasons. Still, without the impetus given by Berne, the extension wouldn’t have gained support. ---
**Author:** ![SmackFu](https://avatars.discourse-cdn.com/v4/letter/s/53a042/32.png) [@SmackFu](https://boards.straightdope.com/u/SmackFu)\ **Post date:** [August 4, 2003, 11:08pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/13 "2003-08-04T23:08:18Z")
Back to the OP, you also don’t really need the master to make a copy. Plenty of crappy DVD and VHS versions of old PD movies are clearly copied from copied prints themselves. And restricting the existence of any prints at all is much, much harder. ---
**Author:** ![Peg](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Peg](https://boards.straightdope.com/u/Peg)\ **Post date:** [August 5, 2003, 12:15am UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/14 "2003-08-05T00:15:41Z")
> [@](#): > > \*Originally posted by NFlanders \* > **I don’t understand the difference between copyright and trademark. Although Disney has trademarked these characters, what’s to stop people from including them in new movies? Nothing, right?** The important distinction is that while copyright terms expire (after which the work is said to fall into the public domain), trademarks do not ever fall into the public domain as long as the mark continues to be used to identify a product or service in commerce and does not become “generic” (like “elevator”). I don’t know when Mickey was created, but under the 1976 Copyright Act, the copyright term for a corporate-held work (like Mickey) is 120 years from creation or 95 years from publication. Disney (as with all trademark holders) has the ability to control the use of the trademark so that the mark does not become diluted, tarnished or “generic.” ---
**Author:** ![aaslatten](https://avatars.discourse-cdn.com/v4/letter/a/f14d63/32.png) [@aaslatten](https://boards.straightdope.com/u/aaslatten)\ **Post date:** [August 5, 2003, 2:25am UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/15 "2003-08-05T02:25:32Z")
> [@](#): > > \*Originally posted by SmackFu \* > \*\*Back to the OP, you also don’t really need the master to make a copy. Plenty of crappy DVD and VHS versions of old PD movies are clearly copied from copied prints themselves. > \*\* Exactly, and I think that’s the upshot of the OP. Just because a film is in the PD doesn’t give anyone the right to the original film or negative. Those are possessions just like anything else. A lot of the public domain stuff floating around on VHS and DVD is really really crappy. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [August 5, 2003, 7:03pm UTC](https://boards.straightdope.com/t/films-in-the-public-domain-how/192944/16 "2003-08-05T19:03:03Z")
> [@](#): > > \*Originally posted by RealityChuck \* > **The lawsuit was against either Kitchen Sink Press or Eternity Publishing (I’ve seen both names mentioned), who published a book of Disney newspaper cartoons (“The Uncensored Mouse”) that had gone into the public domain. Disney sued claiming trademark violation. The publisher settled when they saw they were going to lose in court, and were required to stop publishing any more copies of the book, though they were allowed to sell any copies they had already printed. The agreement gives Disney more than enough ammunition to shoot down any other attempt.** Eternity Comics published two issues of _The Uncensored Mouse_ in 1989. An intellectual property lawyer I consulted (my brother 🙂 ) can find no evidence that Disney filed any action against Eternity Comics in any federal court, going back several decades. (And it’s highly unlikely that a trademark or copyright case would be filed in a state court.) In other words, not only was this case never _adjudicated_, it was never even _filed_. There are many reasons why a defendant may decide to settle out of court (most often that the costs of defending the suit far outweigh any benefits), and you cannot assume that the defendant is acceding to the plaintiff’s claims by doing so. Settling out of court does not legitimize the plaintiff’s claims, and no IP lawyer would cite this as a legal precedent. Furthermore, it seems that Disney’s claim was based substantially on _copyright_ violation. Some of the comic strips in question were not in the public domain because they had been republished later in 1930 in a Disney book, whose copyright was registered and duly renewed.