When does a film fall into public domain?

Factual Questions
1

I see people dealing in VHS/DVDs of old movies in legitimate film magazines, on the internet and at eBay. Frequently they advertise using phrases like: “This film is believed to be in the public domain” and “Sold from on collector to another, no rights given or implied”. Google research yields conflicting data. One place says that a copyright survives the author by 70 years, but that seems to apply to the written word. A movie’s “author” and copyright holder is a studio which doesn’t “die”. Another source says a film lapses into public domain if the copyright is not renewed after 28 years. This was the case with “It’s A Wonderful Life” which was for years, until Ted Turner secured the rights, distributed by video manufacturers and broadcast on television without anyone paying any royalties to the studio that produced it. Outfits like Rhino, Kino and GoodTimes apparently produce and sell many public domain film titles as do smaller companies like Sinister Cinema.

So when is a film in public domain and when is it an illegal “bootleg”?

2

Hard to tell as to any given film. The old Copyright Act which covers all these old movies (up thru '76) required renewal after 28 years to get the additional 28 year term of protection, but that’s since been extended. Under the 1976 Act, copyright is, uh, I think 70 years after the death of the author (or is it 90 years now? I can never remember – it was extended in '98 but I always forget if it was extended from 70 or to 70). For corporations which are considered the author of a protected work, there is a flat period of protection which is actuarially equivalent to the life +70 (?) for human authors. Note of course that in the case of many protected works owned by corporations, the author was a human who sold the work to the corporation; if so, the term of protection is tied to that human author’s lifetime, not the flat statutory period. I expect that most major motion pictures are never considered the work of a human author, but smaller indie films which are later sold to a studio for distribution might be.

What does this mean for any particular film? It means that you need to know more about the facts surrounding it than its date of release; most importantly, you need to know if that 28 year term was ever renewed. I would wager that in most cases “This film is believed to be in the public domain” means “This film’s original 28 year period expired and I have no idea if anyone renewed it since then, so lets assume no one did and it is in the public domain.” Of course, that’s only something you have to worry about if you are distributing copies you’ve made of the film. If, as a dealer, you’re just collecting legitimately released tapes and DVDs of old movies and then selling them without copying, that is perfectly legal just as is operating a used book store. In that case, the rights-holder got his money when the item was sold originally, and he is not entitled to an additional cut every time it changes hands.

–Cliffy

3

I saw a website selling pirated copies of foreign english films & they said that since it has no USA copyright, we can buy a copy. Dunno if that’s true though.

4

I hate to correct Cliffy but he’s off on a couple of minor details. Personal copyright is now life plus 70 years; corporate copyright is 95 years. This is retroactive in a sense; everything that was already copyrighted had its term extended in an unbroken manner. The flip side is that since they were already in the public domain, everything before 1923 remains in the public domain. Films made before 1963 had to have their copyright renewed after 28 years as he said. The ownership of the vast majority of films was held by major corporations whose legal departments would automatically do the renewals.

Several caveats in addition to those he mentioned. Trademark laws may apply in certain cases. While Disney supported the recent extension of copyright to 95 years to keep Steamboat Willy in copyright, the trademark on the Mickey Mouse character exists as long as the corporation stays in business. Copyright does not apply to physical possession of a legal copy of a film, but to the right to copy, display or show the film. If copyright had stayed at 75 years you could have gone out and shown Steamboat Willy on television as often as you liked but Disney would still prevent you from doing anything else with the Mickey character.

Does this mean that MGM could crack down on you for unlawful duplication of its trademarked lion’s roar at the beginning of a picture? I doubt it, but it’s an interesting question.

The other question is whether the copy being purchased is a legal copy to begin with. That’s where the issue really gets sticky. How old were these movies to begin with? Who did the copying from film onto other media? Are these legitimately released versions or bootleg copies?

Realistically, however, there are no sanctions even to buying bootlegs. The legal perils come from making and selling them. (The moral question is always out there, just as it is for buying music bottlegs.)

5

Speaking as an attorney who has been called on to do copyright research now and again–but who is not a copyright attorney as such–I would say that Cliffy 's explanation is pretty well on track.

There are films so old that their initial copyright term expired, and their renewal term expired too. In America, these are from 1924 and before.

There are films for which initial term of copyright expired, and for which a timely renewal was not made. This was the case with Till the Clouds Roll By, a film about the life of Jerome Kern, starring Robert Walker.

There are films for which the copyright holder was a legal entity which went belly-up without transferring the rights. This was the case with many films from the British company Gaumont, such as the Alfred Hitchcock version of The 39 Steps.

In 1975 a copyright reform act extended the copyright duration of films then still under copyright. This was the act which initiated the statutory life but 50 years provision. Sonny Bono sponsored a bill which changed the 50 years to 70.

The lastest I have read on the subject–a textbook on copyright published about three years back–the copyright status of It’s a Wonderful Life is uncertain; basically, people have been scared out of running it on account of threats of litigation by Spelling Entertainment.

There is a further complication. (Actually, there are probably a lot of further complications). If a copyright holder contracted with a distributor so as to give them some exclusive rights to the movie while it was still under copyright, and the copyright has since expired, but the licensing contract has not, and the film was based on some pre-existing work which was under copyright at the time the film was made, the film will be treated as being under copyright, and the exclusive contract will still be considered valid, until the copyright on the original, under-lying work expires.

I expect this may be as clear as mud. Perhaps a brief discussion of the case where this rule was established will make things clearer:

Gaumont Studios made a film of Pygmalion with Leslie Howard and Dame Wendy Hiller. Before Gaumont went out of business, it entered into a contract with Janus Films giving it exclusive rights to distribute the movie. When Pygmalion went into the public domain, a company called Budget Films began advertising it in its film catalog. Janus sued, pointing out that the only reason Gaumont had been able to have a copyright in the movie was that it got permission from the owner of the copyright on George Bernard Shaw’s play called Pygmalion in order to shoot the movie. This play was still under copyright when Budget Films put the movie in its catalog, even though the movie was not. It was ruled that Janus still had exclusive rights to the distribution of the movie, exactly as though they were the holder of an unexpired copyright, until the original play’s copyright expired.

A company called Nolo Press has published several very good texts on explaining the practical ins and outs of copyright, and, in particular, on using material which is in the public domain.

6

Exapno Mapcase is correct as to the matter of a 95 year term of copyright. As I said, there are a lot of complications.

It might also be mentioned that there are films which are in the public domain from the get-go. A principal example are films produced by the federal government. A few years back I did a little work for a nonprofit low power TV station. Among the short subjects we sometimes ran as filler were an Air Corps training film from World War II starring Ronald Reagan, and a piece called The All-Star Bond Rally, which featured Bob Hope, Frank Sinatra and Bing Crosby.

7

I love the All-Star Bond Rally!

To clarify from my earlier stream-of-half-consciousness post: in U.S. law, the current term of copyright is (for works by a human author) life of the author + 70 years. For works by a corporation, it is a flat 95 years. These are meant to be actuarily equivalent, meaning that when copyrighted works are created, the average author has 25 years left to live. As I noted above, many works currently owned by corporations were originally created by humans who sold the rights; if so, then the term of protection is based on that author’s life + 70 years, and not on the flat period.

This has been the state of the law since the Copyright Act of 1976 went in to effect on Jan. 1, 1977 (although the time periods were bumped up by the Bono Act in '98, as slipster mentioned). Prior to that the Copyright Act of 1909 was in force, which had the 28 year term, which could then be renewed for another 28 years. The '76 and '98 acts which worked extensions on the copyright period also extended the 28 + 28 year period as well to be roughly equivalent to the period for new works, so that material that was originally protected under the '09 Act, if it was renewed properly after the first 28 year period expired, is still protected.

A couple things I’m not sure about – Exapno, where did you get the year 1963? The new Copyright Act was in 1976, but maybe you’re doing some math here that I haven’t caught on to.

Also, I was under the impression that the exact intersection between trademark and serialized material, the earliest iterations of which have entered the public domain, was still an open question. Is there precedent for the proposition that when Steamboat Willie and Actions Comics #1 enter the public domain they will be able to be reprinted, but that new matter starring Mickey Mouse and Superman will still be prohibited without permission of Disney or DC Comics? I think that is a logical analytical position to hold, but I also think the opposite position is not absurd and I wonder if you know of any courts that have come down one way or the other.

–Cliffy

8

Why, Cliffy, I used 1963 to make the point that you can never rely on memory and must always look up the facts anew each time you use them. Obviously. I meant 1977. (I assume slipster did the same when he used 1924 instead of 1923 as the year in which copyright protection begins.)

Sigh. Anyway, Here is a nicely legalistic chart with all the exceptions and caveats.

Yes. The best example I know of is the Sherlock Holmes estate. Their licensing page spells it out. I can’t point you to any case law on the subject, though.

I am not a lawyer, but I am a working writer who has spent much time trying to decipher the intricacies of the law. I belong to the Authors Guild and their publication has numerous articles on legal issues and case law and I try to study them as closely as possible. Their The Writer’s Legal Guide: An Authors Guild Desk Reference, by Tad Crawford and Kay Murray has recently come out in a new edition that is quite valuable.

I can’t debate the law, but I know what writers are told to do and not to do. Whether this relies on actual case law or just the best guess of what would happen in the event of a lawsuit is sometimes pretty murky. I just know that “they” always have more money than “us” to pay lawyers with.

9

I wonder if someone could clarify a gray-area question. I have some music originally copyrighted in 1975, but not renewed. Since that was pre-1976, are they governed under the 28-year first-term rule (which means they will expire in 2003) or are they protected under the author plus 70 year rule?

10

Since they changed the law before the 28 year renewal time came into play, the extensions mean that it has 95 years from 1975 to stay in copyright.

11

Actually, it may get messier than that. Some of the copyrights were filed by me as an author (pre-1976), then assigned to a company. In this case, would the personal time (life of author + 90 years) or the corporate time (95 years from filing) apply? Or some other figure?

12

Musicat, I’ve wondered that myself. Perhaps this quotation from Title 17, Section 304 of the U.S. Code will answer:

(a) Copyrights in Their First Term on January 1, 1978. —

(1)(A) Any copyright, in the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured.

(B) In the case of —

(i) any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or

(ii) any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire,

the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of 67 years.

13

© In the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work-

(i) the author of such work, if the author is still living,

(ii) the widow, widower, or children of the author, if the author is not living,

(iii) the author’s executors, if such author, widow, widower, or children are not living, or

(iv) the author’s next of kin, in the absence of a will of the author, shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years.

14

That means to me that the renewal is not automatic, but if renewed, will add up to a total of 95 (28+67) years from the original date of filing.

15

Getting back to the OP, I have a more specific question on copyright. As randwill wrote, the movie “It’s a Wonderful Life” went into public domain (due to its rightholder’s decision not to renew the copyright) but has now been placed back under the rights of Ted Turner. How did this happend? I have always been under the understanding that one of the major principles of copyright law is that once a work is placed in the public domain that step is irreversible.

16

Technically it’s still in public domain, but the score isn’t and neither is the story.

17

Walloon appears to have answered this question; as the “life + years” formula is a creature of the '76 Act, which has special rules for works that were in their first 28-year term under the old Act when the '76 Act went into effect, those special rules will govern. However, as a general rule for newly-created works, as I noted above, the life+years formula applies to the author’s life, not the rightsholder’s. If you, a human individual, were the author under the applicable provisions of the '76 Act for, say, a piece of music you composed in 2001, and then immediately – that day – sold it to a corporation, the term of protection is based on your life + a term of years. If, OTOH, the corporation is the author under the '76 Act (which they would be if, for instance, you were on salary to them to write music) then that corporation is the author, not you, and the term would be based on the flat 95 year period – even if the corporation later sold the rights to a human.

The 28+28 formula with a renewal requirement was largely a measure to protect the creators of works against the corporations who had the capital to buy and exploit those works. Since the second 28 year term didn’t vest in any concrete way until the renewal was actually executed, then the right to that second term could not be purchased by anyone until then. Therefore, someone who created a work and then, immediately and foolishly sold it to a publisher for a mere pittance, could get his hands back on the property 28 years later. Even if at the beginning he promised to sell all the rights he held in the character for ever and ever to the corporation, under the law the “right” to the second term was a mere expectancy and therefore not solid enough to sell, meaning that no matter what the creator foolishly did, he still had the renewal rights in his own hands and, once the first 28 years had expired, he could renew and then get back the copyright to the work in his hands as well.

–Cliffy

18

Wasn’t this covered instead in the 1976 Copyright Act and recently clarified by Joe Simon’s lawsuit against Marvel?

http://www.authorsguild.org/?p=111

Here’s the amicus curae brief the Authors Guild entered.

19

My understanding was that the termination right in the '76 Act (and a similar provision in the Bono Act) serve the same function under the modern scheme as the renewal right in the '09 Act did originally. But I could be wrong – it’s been some time since I took Copyrights and I don’t practice in the area.

The Simon case is interesting because it turned on a separate point. As part of a 1969 settlement of earlier Simon v. Marvel litigation, Simon had stated that Marvel/Timely was the author or Captain America, not him. Therefore, Marvel had the right to renew. If Simon was the author (as he now alleges, and this seems more in tune with reality), then he would have had the power to renew after the first 28 years, not Marvel, and therefore he would hold the rights. The Simon case doesn’t really address the validity of the renewal right per se, but rather the power of the parties to contract around the right – in this case as part of the '69 settlement. This actually protects the ability of creators to exercise their renewal rights, as it not only makes it impossible to sell them at the beginning, it also makes it impossible for the creator to waive them.

–Cliffy

20

Although the wording of the section that I quoted may suggest that, copyrights are automatically renewed:

(2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which —

(i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the application is made; or

(ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright.

(B) At the expiration of the original term of copyright in a work specified in paragraph (1)© of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which —

(i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in any person who is entitled under paragraph (1)© to the renewal and extension of the copyright at the time the application is made; or

(ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in any person entitled under paragraph (1)©, as of the last day of the original term of copyright, to the renewal and extension of the copyright.