LOC and donor restrictions

[drednm]

Well this is interesting. A note from LOC today states:

"Our policy is to honor donor restrictions even if the film library has moved to another company. "

In other words Cohen Group inherited the original donor restrictions for the Talmadge films donated by the original donor. So if Rohauer was the original donor and placed a "no copy" restriction on the film, that restriction was passed on to Cohen when they bought the Rohauer collection.

[entredeuxguerres]

Such a policy would be more honored (i.e., honorable) in the breech than the observance.

[drednm]

It would only apply to the Talmadge films in the original donation(s) and not other Talmadge films outside the collection. Used to be able to access Cohen Group's PDF of film holdings but they apparently "took it down."

and from Mike Mashon at LOC:

"Oftentimes when a collection is sold, all the rights convey. And when that happens to a collection we already have here (the recent sale of the Rohauer Collection from Douris to Cohen Media being a prime example), there’s nothing we can do about it."

[boblipton]

Well, they can ignore the restrictions.

Bob

[drednm]

Well, they can ignore the restrictions.

Bob

LOL..... well apparently they can't if it's a condition attached to the donation, but it's bizarre to do so with public domain films since any copy from a source other than LOC would be free.

[DShepFilm]

Well, maybe you would feel differently if you wanted to trust your expensive materials to the Library for long-term preservation in the public interest but not so that, say, Grapevine Video could beat you to market with your own goods.

David Shepard

[drednm]

Well, maybe you would feel differently if you wanted to trust your expensive materials to the Library for long-term preservation in the public interest but not so that, say, Grapevine Video could beat you to market with your own goods.

David Shepard

I see your point, David, but that sort of defeats the purpose of having any films in the public domain. And it seems doubtful that there was any intention of going to market ... at least in this case.

[Spiny Norman]

Same problem is in place at Wisconsin Historical Society...

[BenModel]

There are a lot of silent films in the collection that are p.d. and do not have donor restrictions. Keep hunting!

Ben

[drednm]

There are a lot of silent films in the collection that are p.d. and do not have donor restrictions. Keep hunting!

Ben

Of course, Ben. I'm working on one (not a Talmadge), but if I can't get the permission, I'll move on to another film, one that doesn't have the restrictions.

But thanks to responses from LOC, at least I now know how the donor restriction can work....

[kaleidoscopeworld]

This is all a bit unclear ... do I understand correctly that the LOC made preservation copies from films in the Rohauer collection while it was housed there, but is unable to do anything with them—even if the films are PD—because of the original donor agreements made to Rohauer?

[Great Hierophant]

I do not think it is unreasonable to honor a restriction on the physical item itself as opposed to the content. A film may be in the public domain, but if I have the only film print of it in existence, no one can force me to make it available to be copied or scanned except the government through its exercise of its eminent domain power for just compensation.

Now suppose I loan my print to a friend with the express agreement that it is for his eyes only and no copies are to be made. My "friend" then has it scanned and returns it to me. Two months later I read that the film has been rediscovered and I manage to track down the source and find that it was my print. I never intended to share my property outside my friend, but what recourse do I have? Can I sue my friend on a contract theory? Can I obtain an injunction against the company who intends to release it on a misappropriation theory?

On a related note, if Cohen has obtained all the rights to the Rohauer collection, then it should be able to override the "no copy" provision. Naturally I doubt that Cohen has any desire to do so except as to its own licensees because it stands to profit by virtue of its exclusive access to the film prints held at the LoC.

If the LoC were to honor the wishes of a prior rights holder, then the dead hand would be able to prevent the distribution of the material indefinitely. In my opinion, a policy from the LoC which would permit an indefinite hold over materials in its collection would not be in the public interest. The public would essentially be paying for storage space for someone's private film collection.

[entredeuxguerres]

...In my opinion, a policy from the LoC which would permit an indefinite hold over materials in its collection would not be in the public interest...

No, not at all; but the Sonny Bono Copyright Extension Act demonstrated conclusively the views of our Congress (best that money can buy!) on the value and importance of the public interest.

[odinthor]

I’m of two minds about this sort of thing (observing donors’ requirements). Perhaps before going further I should add that I’m a donor (item, not $$$) to the Huntington Library, so I have quite an interest in this matter. On the one hand, a donor is moved to donate something on the strength of stipulations in an agreed-upon and duly signed contract—had the stipulations and agreement not been there, the donation would not have taken place in the first place—and so perhaps goes to his grave with a deep contentment about the final disposition of something very important to him . . . only for the agreement to be violated in a few years when the receiver of the donation finds it convenient to go back on his word. I personally find that reprehensible; a contract's a contract. Furthermore, such behavior potentially lays a dead hand on future donations, if would-be donors find out how casually the receiving party treats the contract’s stipulations. On the other hand, with works of art (considered in the wide sense), an artist in the performing arts creates something for it to be shared with an audience. To the extent that it’s made difficult for an audience to experience it, the stewards of that work of art are violating the very ethos of its existence. The courts are undependable and often blithe about such things, as hard-nosed as they can be about other contracts. For instance, in the case of a completely different sort of “art for an audience” (http://www.timesheraldonline.com/201510 ... ese-garden" target="_blank" target="_blank" target="_blank) the courts blandly approved abrogation of the contract, and eventually the heirs of the donor were made happy or at least satisfied by what I (but not the courts or the contractual parties) would call simple bribery. And so the public and futurity loses. Thanks a lot, much vaunted legal system! But it's a matter with many subtleties.

[DShepFilm]

I should have added that, at least during the years my job was to acquire materials for it, the Library did not accept donor restrictions in perpetuity. The term might be long but it was not indefinite.

Further, as has been pointed out, the restriction applies only to the designated, donated copy; another copy of the same item may be available for unrestricted access.

Donor restrictions are completely unrelated to copyright status, unless the two are tied in the deed of gift.

David Shepard

[Mark Zimmer]

Public domain status is a red herring. It's a contractual restriction and its copyright status has nothing to do with it. If the donor (let's call him Al Dettlaff) says, yes, LOC, you may have my print subject to these restrictions, LOC is free to say, Al, take your restrictions and pound sand. If they take the print from Al, though, they have to live by his restrictions or else be sued by him and his heirs. No one wants to be a defendant, so they live with the restrictions.

There used to be a rule against perpetuities that would prevent you from making such ties permanent, but that's pretty much been undone by the corporate class in their desire to make their aristocracy permanent. Whether LOC currently accepts perpetual restrictions, I don't know.

[Donald Binks]

I am sure that the archives concerned would do all they could to ensure that restrictions on access of material donated would be few, however they have to abide by the donor's wishes otherwise they would never get their hands on the stuff in the first place.

I can well understand that a donor could still be making money from some of the material - an original source of which he/she would wish to donate and that there would be a time limit thus placed on it becoming available to the hoi polloi gratis.

The good news is that there is a final release from all restrictions after a certain period of time.

[earlytalkiebuffRob]

I am sure that the archives concerned would do all they could to ensure that restrictions on access of material donated would be few, however they have to abide by the donor's wishes otherwise they would never get their hands on the stuff in the first place.

I can well understand that a donor could still be making money from some of the material - an original source of which he/she would wish to donate and that there would be a time limit thus placed on it becoming available to the hoi polloi gratis.

The good news is that there is a final release from all restrictions after a certain period of time.

If the donor is still benefiting financially from his / her material, that presumably means it is available in some way, albeit to a paying public. One would, however, have thought any donor would want the film to be available as widely as possible unless there is an excellent reason for this not to be the case.

Some time ago a batch of short silent films of patients suffering from mental problems originating in experiences during the Great War were uploaded. WAR NEUROSES - NETLEY runs just over twenty-five minutes and the films were shot for the purposes of medical research. The interest now is clearly for serious students of the War and of mental health, and it is possible that there are living relatives of some of the patients depicted. There could well be a case for keeping material of this nature under control, and likewise with films such as the Nazi 'documentary' DIE EWIGE JUDE, but in most other cases, wide availability would surely be of benefit, particularly if the film is otherwise unavailable or only circulating in poor condition.

[boblipton]

What a donor may consider his best interests is not necessarily what you consider his best interests -- and he may be right. Your interest and mine are in seeing these movies and we follow the normal human tendency of finding the arguments that support our thesis and poo-poohing arguments that oppose them.

I don't know what Cohen Media thinks it will gain by keeping the Talmadge titles under lock and key. Since they own those titles and will so long as the covenants with the LoC hold, it's enough they consider them worthwhile. Nor are they absolutely dog-in-the-mangerish about them; Joe Yrasky (sp?) projected digital copies of several of them at the Donnelly Library over the years.

I just had a radical thought. Perhaps some one who wished to pursue the matter might contact Cohen Media. Nah. It's more fun to bitch and moan.

Bob

[drednm]

Bob.... the really futile thing here is that yes Cohen may have restrictions on the copies at LOC... but if someone has a copy of a public domain film and it's not from LOC, then they can do whatever they want with the film. Sort of like locking the barn after the horse has bolted.

Now maybe the LOC copy is better than the copy I have of film X, but their restriction is basically self-defeating unless they actually have plans to DO something with the film. Even if my copy of film X is inferior to what they have locked up at LOC, my copy is the one more likely to be seen by film buffs.

The Dutch copy of SMILING THROUGH is a good example. Cohen may have the old Rohauer copy under restriction at LOC but that has ZERO to do with the Dutch copy or the copy I have, which did not come from LOC.

[Nick_M]

Since they own those titles...

They owned the prints. Public domain means nobody owns the titles. Donor restrictions of public domain material at the LoC is a repulsive idea.

[mwalls]

On the one hand I can understand somewhat the idea of the LoC accepting a donation of a very rare or one of a kind print with restrictions in perpetuity just to make sure that the print survives. However, given that the LoC is a public institution, I can't say that I support a practice whereby people get to house and preserve in perpetuity for free, prints in the hopes of one day making money from them.

[Donald Binks]

On the one hand I can understand somewhat the idea of the LoC accepting a donation of a very rare or one of a kind print with restrictions in perpetuity just to make sure that the print survives. However, given that the LoC is a public institution, I can't say that I support a practice whereby people get to house and preserve in perpetuity for free, prints in the hopes of one day making money from them.

I don't think any archive would accept a donation with restrictions on usage in perpetuity. That defeats the whole purpose of the term "donation" and the archive virtually becomes a free warehouse.

[sepiatone]

The Cohen Media situation is interesting. I'd love to see Norma's "The Branded Woman", but LOC/Cohen has the only print. According to Silentera Cohen has the rights to Griffith's "One Exciting Night" , but that film is available on DVD through Alpha. Wish the LOC/Cohen/Talmadges could find their way to Alpha.

[sepiatone]

The Cohen Media situation is interesting. I'd love to see Norma's "The Branded Woman", but LOC/Cohen has the only print. According to Silentera Cohen has the rights to Griffith's "One Exciting Night" , but that film is available on DVD through Alpha. Wish the LOC/Cohen/Talmadges could find their way to Alpha.

ok make that Alpha or Grapevine. Gotta give Grapevine their props. They've made some great material available.

[drednm]

The Cohen Media situation is interesting. I'd love to see Norma's "The Branded Woman", but LOC/Cohen has the only print. According to Silentera Cohen has the rights to Griffith's "One Exciting Night" , but that film is available on DVD through Alpha. Wish the LOC/Cohen/Talmadges could find their way to Alpha.

ok make that Alpha or Grapevine. Gotta give Grapevine their props. They've made some great material available.

You have to remember Cohen can only control the PRINTS of public domain films donated to LOC, not the films themselves. If it's public domain and you get a print from elsewhere, you're on your own. So unless the donated print is the ONLY version of the film or the only good version, the restriction is worthless. Public domain still trumps the restriction.

[drednm]

The Cohen Media situation is interesting. I'd love to see Norma's "The Branded Woman", but LOC/Cohen has the only print. According to Silentera Cohen has the rights to Griffith's "One Exciting Night" , but that film is available on DVD through Alpha. Wish the LOC/Cohen/Talmadges could find their way to Alpha.

ok make that Alpha or Grapevine. Gotta give Grapevine their props. They've made some great material available.

You have to remember Cohen can only control the PRINTS of public domain films donated to LOC, not the films themselves. If it's public domain and you get a print from elsewhere, you're on your own. So unless the donated print is the ONLY version of the film or the only good version, the restriction is worthless. Public domain still trumps the restriction.