whaleallright wrote:Right, but the question is not one of "original rights," which I don't believe carries any legal meaning, but rather of rights to a particular restoration of a film and/or ownership of a particular elements of that film.
The problem is Werewolf by Night's response to my post made it seem that he asserted that nobody could own a public domain work, which isn't accurate. Films can fall into public domain either by age or screw-ups with original/renewing copyrights, but that doesn't mean that the film no longer belongs to anybody. Anybody can now release the film or remake or do what they wish with it (although at their own risk), but somebody still owns it (even if its more of a formality at this point). Criterion and other reputable companies (Shout) will avoid releasing public domain films without a license to some rights holder. I recall that people were asking Shout why they don't just release PD films for MST3K without bothering with any license: Shout's response was something akin to "the films might be PD but somebody still owns them, and they could still sue." There are numerous issues that could come up - whether it be trademark (Godzilla vs Megalon), or more often the soundtrack (see Charade). So there's a liability with being a PD bandit - and its just better on all accounts to actually license the product from whoever still holds onto the rights to the film.
Here's an example I found from the MST3K boards:
The reason why Shout Factory licensed the BTWD [The Brain that Wouldn't Die] from MGM is because MGM is the corporate successor-in-interest to American International Pictures, who picked up the film's distribution rights upon release. Also, there's a licensed piece of music in BTWD called "The Web" that's apparently under copyright. It would be a derivative work in a newly published work at the time. MGM still had the contracts in effect to protect Shout from litigation, if any such attempt was made. Similar to why Rhino and SHout licensed Manos, Hands of Fate from Peter Rodgers Organization, to protect from litigants like Hal Warren's son.
Granted, soundtrack isn't going to be an issue with every film or silent films (unless they don't create their own new soundtrack) - but its just an example of the complexities involved rather than the blanket statement: "the rights don't belong to anybody anymore / nobody should license anything"
Flicker Alley has done some great work and the majority of the films they have a license to release them. In the case with the few I've brought up, Flicker Alley is acting no different than Legend Films. Criterion has paid money to the license holder to release the films, Flicker Alley hasn't. As a similar situation: Cohen has the rights to all of Buster Keaton's films (except the MGMs which are owned by WB) - yet Kino is still planning to put out a number of them on bluray. Or there's the competing UK releases of BFI vs MoC (Nosferatu, Birth of a Nation, etc - although I'm not sure who has the greater claim there; probably MoC).
I actually do licensing as my livelihood, although I am not a lawyer. There is an even longer answer waiting for this, but in moderate length:
The statement "Films can fall into public domain either by age or screw-ups with original/renewing copyrights, but that doesn't mean that the film no longer belongs to anybody" is incorrect, in regards to copyright. (The first half of the statement is fine; the second half is confusing in its imprecision.) There seem to be two different things being conflated in that sentence, the copyright, and the copy/elements/physical versions. These are quite different things. When something is public domain, it is in fact true that the copyright no longer belongs to anyone
. But the physical copies do belong to people, and one does have to come up with a copy to actually exploit, and one then has to make an agreement with the holder of that physical element to exploit it. Let's differentiate between these by calling "licensing" what one does to arrange terms with a "copyright holder" and "access permission" to mean what one arranges to get access to the physical copy. Someone does own a film, and one must arrange access permission, but if something is public domain, there is no copyright holder, and one doesn't need to license it.
But it can be difficult to prove that something has no potential copyright holder, because it is very hard to prove a negative. You have to get a copyright search done, and follow some paths, and evaluate whether people are claiming copyright ownership that they don't actually have. Would it cost more to duke it out in court, or just to pay the requested "license" fee? Most people choose the latter. The recent "Happy Birthday to You" case was the first time that someone chose to fight the court battle with Warner Chappell over whether Warner actually owned the copyright. Warner fought, as they have made a lot of money on it, and lost, and is now reimbursing a lot of people who have paid them fees for it. (Or more likely procrastinating over reimbursing people.)
As others have stated, if one does a new restoration, you can then copyright that restoration.
Copyright law varies by country and has changed over the years, and those variations are meaningful. Up to 1977 in the US, one had to deposit a physical copy (or copies) at the Library of Congress to claim copyright. After 1977, one no longer had to. The term of copyright has changed from 28 years with the power to renew, to 75 years, to what is now 95 years after the death of the creator. However, last items to come into public domain due to age in the US are from 1922, and 2018 will mark the 95th year after works created in 1923, which means that unless the law is changed, there will be new items becoming PD next year. Expect to see discussions in Congress this year about changing the law again.
Music copyright runs in different ways, and I am not a master of that, but, back to the "Happy Birthday to You" case, if a song was published prior to 1922, it is generally now PD. Individual recordings carry their own licenses. Every piece of music has two licenses at first, the written version [publishing, generally owned by the music publisher(s) for the song writer(s), and the actual recording (master, generally owned by the record company]. Prior to a particular year, music recordings were not administered by the federal government in the US, but by state, which can really complicate things from local labels, etc, from the 1920s-40s especially. But most companies have successor companies, etc. The masters however, like the film negatives, could be gone or anywhere - we're talkin about physical copies there, separate from the rights.
Returning to to films, for example, I used some clips of "Birth of a Nation" in my last show ("American Race" with Charles Barkley, on TNT). BoaN is unquestionably public domain (there was even a court case specifically addressing copyright ownership of it some decades ago), but the more recent Kino restoration/tinting is probably owed by Kino. But if I find a digitized crummy b&w version, I can use it without "licensing" it from anywhere.
1975 - http://www.leagle.com/decision/19751259 ... OWS,%20INC
." onclick="window.open(this.href);return false;?
There has also been a court case asserting that a reproduction of a work that is pretty much the same as the original does NOT create a new copyright. The main example here are museum reproductions of works in their collections, photos of photos and paintings that are intended to b accurate representations of the original The releases issued by museums and archives used to state that one was licensing their copyright. The judge said that they couldn't do that. Now the releases state that you are getting permission to use their reproduction of it, but you aren't paying for a copyright license; you are paying for the permission access.
There is a also a difference between the desires of companies to license everything, just to avoid the risk of being sued, and what one more likely actually has to license. But that's a whole separate discussion which is more about risk aversion and company policy, and I won't go there right now.