Early Unpublished Nitrate Film Copyright

[silvershadows]

Hi guys, I have a fairly complex one that I could not figure out through numerous web searches. I was wondering if anyone could please help?

It revolves around trying to copyright an unpublished and previously unseen, early 1900’s film. I purchased the film from a private collector and am now in the process of paying for a company to restore and digitise it (under NDA).

I paid quite a bit for it and will be paying a thousand or two more for restoration/digitisation. At the end of this, I then need to protect it (copyright?) and find a way to monetize it.

A world authority on early film (who is under my NDA) has confirmed that it has never before been seen or published. This is the original early nitrate film put down on Edison 35mm. It is very important and will make national news in the USA.

Obviously, I am not a creative contributor to the work but the owner 100 plus years after its filming. From research, the film is attributed to an early film maker but is not labelled or verified from that long since defunct amateur studio (not proven to be from any one film maker so is thus anonymous).

Any thoughts would be greatly appreciated!

Many Thanks, Jason (silvershadows)

[AndyJ]

Hi Jason,

The answer will very much depend on a. where you are based, and b. where you plan to publish the film. You mentioned its effect on the news in the USA.

UK. This is a little complicated, so bear with me. First of all, a film from the early 1900s would be subject to copyright only as a series of individual still images ie photographs (the film frames) each of which was treated as a separate work. This is certainly the situation from the 1911 Copyright Act onwards, up to the 1956 Copyright Act, although the situation concerning a motion picture made before 1911 is a bit less clear*. Section 21 of the 1911 Act says the following about copyright with regard to photographs:

21. The term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts

There is no differentiation in that section (unlike elsewhere in the Act concerning other types of copyright work) between published and unpublished photographs. This effectively means that copyright in the film will have ended 50 years after it was made. However the fact that the film has never been published means that, as the legal owner of the original and the digitized version, you can take advantage of something called publication right, which was introduced into UK law by Regulation 16 of the Copyright and Related Rights Regulations 1996 (SI 1996/2967) which says:

Publication Right

16.—(1) A person who after the expiry of copyright protection, publishes for the first time a previously unpublished work has, in accordance with the following provisions, a property right (“publication right”) equivalent to copyright.

(2) For this purpose publication includes any communication to the public, in particular—

• (a) the issue of copies to the public;
  
  (b) making the work available by means of an electronic retrieval system;
  
  (c) the rental or lending of copies of the work to the public;
  
  (d) the performance, exhibition or showing of the work in public; or
  
  (e) broadcasting the work or including it in a cable programme service.

(3) No account shall be taken for this purpose of any unauthorised act. In relation to a time when there is no copyright in the work, an unauthorised act means an act done without the consent of the owner of the physical medium in which the work is embodied or on which it is recorded.

(4) A work qualifies for publication right protection only if—

• (a) first publication is in the European Economic Area, and
  
  (b) the publisher of the work is at the time of first publication a national of an EEA state. Where two or more persons jointly publish the work, it is sufficient for the purposes of paragraph (b) if any of them is a national of an EEA state.

(5) No publication right arises from the publication of a work in which Crown copyright or Parliamentary copyright subsisted.

(6) Publication right expires at the end of the period of 25 years from the end of the calendar year in which the work was first published.

(7) In this regulation a “work” means a literary, dramatic, musical or artistic work or a film.

(8) Expressions used in this regulation (other than “publication”) have the same meaning as in Part I."

In other words as the publisher of this film you gain a set of rights which are virtually identical to the economic rights of copyright, for a period of 25 years. You do not benefit from any moral rights.

USA . Any work which was made in the USA before 1 January 1923, irrespective of whether it was at the time and has subsequently remained unpublished, is now deemed to be in the public domain, that is to say free of copyright. You can therefore legally publish the film. However if the film dates from after 1 January 1923, the situation is very much more complicated. In fact it so complicated that I won't go into it here, unless you ask me to to do so in a follow-on posting. So to recap, if your film was made in the USA before 1923, you can freely publish it, but there is no equivalent to the European publication right in the USA and so the only way in which you can prevent others from copying your digitized version without permission, is to register it with the US Copyright Office. This will require your version to be recognised as a derivative work, ie a 'new' work which is derived from the original. The USCO publishes guidance on eligibility for copyright registration (amongst other subjects) and here's what it says on the matter of derivative works:

204.02 Derivative works defined.
The copyright law defines a "derivative work" as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or other form in which a work may be recast, transformed, or adapted. The law also states that a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. See 17 U.S.C. 101".

Noting the mention of 'motion film version' it appears that your new version of the film could well qualify, but you may need to discuss this with the USCO staff prior to submitting an application to register. Even if you are based in the UK and intend to publish here in the UK, you would be well advised to register the film with the USCO in order to gain the necessary protection there, since the US does not recognise the UK's Publication Right.

* Protection for photographs was first introduced into UK law by the 1872 Fine Art Copyright Act, when the period of protection was much shorter than 50 years. The 1956 Copyright Act did not retrospectively change the provisons of the 1911 Act with regard to earlier photographs, so even if the film dates from, say, 1928, meaning that its 50 year term still had some time to run when the 1956 Act came into force, the copyright in it would expire under the provisons of the Act which was in force at the time the film was made.