Recopyrighting Silent Movies

boblipton · Post by **boblipton** » Sun Sep 06, 2009 4:43 pm

I have been going through the Gaumont set from our friends at Kino with great pleasure. Thanks, everyone!

One of the things that I noticed, however, was that at least a couple of the pieces are copyright in the 1990s and 2000s -- THE MYSTERY OF THE ROCKS and L'ENFANT DE PARIS. I understand that new elements can be copyrighted -- the new musical scores, for example. But an overall copyright?

I don't know that any of the usual suspects around here are lawyers in the field, nor do I wish to encourage people to make five thousand copies of the print and give them out, depriving Kino of a chance to get its money back and enough of a profit to keep body and soul together. But is there something off kilter about these new copyrights?

Bob

Post by **silentfilm** » Sun Sep 06, 2009 5:28 pm

Not if they had to do restoration work like recreate titles, combine existing prints, do a digital cleanup, etc.

Rob Farr · Post by **Rob Farr** » Sun Sep 06, 2009 6:16 pm

Europe's copyright laws make our Sonny Bono law look positively liberal.

FrankFay · Post by **FrankFay** » Sun Sep 06, 2009 7:38 pm

The moderator is right. If you do enough restoration work on a silent film you can copyright that version. This means that if I dupe the Murnau Foundation's restoration of METROPOLIS and sell it I could be prosecuted, but I can still copy an old public domain print struck in the 1960's- provding it doesn't have copyrighted features of it's own.

boblipton · Post by **boblipton** » Sun Sep 06, 2009 7:54 pm

While I see the reasoning in giving someone the incentive to the do the clean-up, does this mean I could take a copy of some pd film -- say, THE MYSTERY OF THE LEAPING FISH, so some minor clean-up and recopyright it?

Bob

Post by **Mike Gebert** » Sun Sep 06, 2009 9:02 pm

You could try! Then it's a matter of whether your lawyers are bigger than their lawyers.

It's the sort of thing Raymond Rohauer used to try. Like a lot of these things, nobody knows exactly where the line is till a court decides one way or the other.

If I recall, people like David Shepard have gone after people who steal their transfers/restorations, but usually on the basis of something more solid, like the musical score.

Post by **silentfilm** » Sun Sep 06, 2009 9:09 pm

David Shepard would love to sue people that infringe on his copyrights. I'm sure that he has sent "cease and desist" letters to them, but it is very expensive to sue and win.

FrankFay · Post by **FrankFay** » Sun Sep 06, 2009 9:11 pm

I believe this is why some restorations have an intentional error or a flaw as a copyright trap. The Man Who Laughs has a few frames of Italian title flas at one of the reel changes, and I don't think it was someone's sloppy editing.

David Pierce · Post by **David Pierce** » Mon Sep 07, 2009 9:16 am

FrankFay wrote:The moderator is right. If you do enough restoration work on a silent film you can copyright that version. This means that if I dupe the Murnau Foundation's restoration of METROPOLIS and sell it I could be prosecuted, but I can still copy an old public domain print struck in the 1960's- provding it doesn't have copyrighted features of it's own.

This might be desirable by some, but it isn't the way the US copyright law is written.

The US copyright law protects creativity, but not mechanical processes. So if you wrote a the book it would is protected by copyright, but there is not a separate copyright on the paperback edition, even if it is formatted differently, as the layout of the book is the result of a process, not authorship or creativity.

Similarly, using digital tools to clean up an image, or taking three incomplete prints of a film to recreate the original release requires little creativity and would not be protectable by copyright in the U.S.

Translating intertitles from a foreign language into English would be protectable, as there is some authorship involved. But you could not claim an exclusive copyright on your choice of typeface for the titles or their layout on the screen - there is insufficient creativity involved.

The underlying case law is the Feist case,
http://en.wikipedia.org/wiki/Feist_Publ ... ne_Service
where the Supreme Court ruled that a telephone directory was simply a complilation of facts, and despite the substantial effort required in gathering the information, it was not protectible by copyright. The creator of the phone book had included some false entries to be able to track unauthorized reuse, but that was irrelevant to the copyright status.

The law in Europe is different, as databases of public domain information are protected by copyright.

In the world of old film, I think of copyright as a knife that cuts both ways. Sometimes it benefits preservation and access, while other times copyright gets in the way.

David Pierce