Night of the Living Dead

[number6]

Hi All,

I'm using video from 1968's Night of the Living Dead for a new movie.

I know this is definitely fair game in the US as it has always been in the "public domain". My question is...does the Berne Convention apply here? Is it public domain in any Berne-adopting country?

The film is public domain due to a copyright error (it was filed under the wrong name).

Many thanks!

A

[AndyJ]

Hi A,

Just for the sake of completeness I will repeat here what I said on the Music Forum about the Berne Convention:

Just a word about the Berne Convention. It is an international treaty which each signatory country needs to incorporate into their own domestic law in order for it to take effect, and there is some latitude for them so long as they apply the basic minimum standards.. So for instance in Article 7 (8) you will find the phrase "unless the legislation of that country otherwise provides". In other words signatory countries may mandate that their own term of protection will apply to foreign works, provided that does not result in a term which is shorter than would be available in the country of origin. That is how the EU are able to require that their own uniform standard on the duration of copyright should apply in all EU member states.

You already know from the other thread what section 12 (6) of the Copyright Designs and Patents Act 1988 says in general about works of foreign origin. So now we need to look at the detailed rules concerning the country of origin (which are also based on the Berne Convention). The UK rules can be found in section 155 of CDPA. Normally the country of origin is the country where the work is first published, but there is a special provision covering circumstances in which a work is simultaneously published in two or more countries. Subsection (3) of section 155 deals with this in the following words:

(3) For the purposes of this section, publication in one country shall not be regarded as other than the first publication by reason of simultaneous publication elsewhere; and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous.

That's a rather poorly worded way of saying that if a work, such as a film or book, is published in the UK within 30 days of its publication in a first country, the UK law will treat that as if it was a first publication in the UK, and so the full protection of the UK law would be applied to the work concerned.

As far as I am aware Night of the Living Dead was not released here within 30 days of its US premiere on 1 October 1968*, and so it is unlikely that section 155(3) would take effect and mean that the film would be protected in the UK when is was not protected in the USA. As a matter of interest, the term of protection for a film in UK in 1968 was 50 years from the end of the year in which it was published. So even if the film had had its UK release before 1 Nov 1968, the copyright in it would have expired at the end of 2018, but for the fact that in 1995 the copyright term for films was extended by whole new system which was based on the lifetime plus 70 years of the longest surviving of the following people: the principal director, the author of the screenplay, the author of the dialogue and the composer of the film's music. However since I don't believe that the UK was required to treat the film as if it had been simultaneously first published in the UK, this is academic.**

A very long winded way of saying the film is also definitely in the public domain in the UK.

* Wikipedia says 1st October; IMDB says 4th October. IMDB does not give a UK release date until 17 February 2017. This was the 4K restoration version so it will possibly be subject to a separate copyright.

** This part was added to reflect the comments made by Nick Cooper below.

[number6]

Brilliant.
Thank you SO much for your detailed response.
It's so difficult to establish all of this as a layman.
Have a great week.
A

[Nick Cooper]

A very long winded way of saying the film is also definitely in the public domain in the UK.

I would have to disagree. In the first instance, the 1891 bilateral agreement between the US and the UK means that UK law treats US works as if they are UK works for copyright purposes.

Secondly, the 50 year from publication/registration (under the Cinematograph Act) term for films introduced in the 1956 Act is addition to the separate copyright on films as dramatic works, which obviously at the time was last creator's death plus 50 years, as restated by the 1988 Act, and then bumped to 70 years by the 1995 SI. As co-writer John A. Russo is still alive, that 70 years hasn't even started running yet.

The 50 year from publication/registration term would only relate solely to films that are not dramatic (or possible artistic) works, such as newsreels.

[AndyJ]

Hi Nick,

Yes, you are right about the fact that if the film had been entitled to be treated as a work of UK origin, the 50 year term would still have been running in 1995 and so it would have gained the extra 20 years worth of protection. However I disagree that the 1891 Bilateral agreement makes any difference. As far as I can tell the UK implemented the agreement by an Order in Council and so we have no readily available text of the agreement. However the USA brought the agreement into law as the Chase Act 1891, and the text of that statute is available here. Looking at page 1107, we can see that foreign copyright was only to be afforded to "works for which copyright shall have been obtained under the laws of the United States". I think we can assume that this provision would have been reciprocal. In other words since Night of the Living Dead did not qualify under US copyright law for protection, the UK was not required to protect it under its domestic copyright law. This is evident from the wording of section 13B CDPA 1988: " ... the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (6)." (my emphasis)

I also need to slightly disagree with the analysis in your second point about copyight in films generally after 1 June 1957. Prior to the 1956 Copyright Act, you are right that the only protection which was available was to the individual elements such as the dramatic work, sound recording, music, and the individual still images which comprised the film. However, following the 1956 Act, copyright in a film covered all of these things (with the single exception of any sound which is not embodied in the sound track of the film*) - see subsection (7) of section 13 of the 1956 Copyright Act. Bear in mind that when the CDPA 1988 was first introduced, the copyright term for films was still set at 50 years from first publication (see the original text of section 13 CDPA). The duration did not become linked to the lifetime of the principal director and author of the screeenplay etc until the introduction of the Duration of Copyright and Rights in Performances Regulations 1995 SI 1995/3297.

Historically, copyright in film has always been complicated - indeed the Modern Law of Copyright** devotes a whole chapter to it.

I've amended my earlier post to reflect your comments.



* The first embodiment of a sound track within a film occurred in a 1927, in a film called The Jazz Singer.

** Laddie, Prescott and Vitoria; The Modern Law of Copyright 4th edition. 2011Lexis Nexis. See chapter 7.

[Nick Cooper]

I also need to slightly disagree with the analysis in your second point about copyight in films generally after 1 June 1957. Prior to the 1956 Copyright Act, you are right that the only protection which was available was to the individual elements such as the dramatic work, sound recording, music, and the individual still images which comprised the film. However, following the 1956 Act, copyright in a film covered all of these things (with the single exception of any sound which is not embodied in the sound track of the film*) - see subsection (7) of section 13 of the 1956 Copyright Act. Bear in mind that when the CDPA 1988 was first introduced, the copyright term for films was still set at 50 years from first publication (see the original text of section 13 CDPA). The duration did not become linked to the lifetime of the principal director and author of the screeenplay etc until the introduction of the Duration of Copyright and Rights in Performances Regulations 1995 SI 1995/3297.

Yes, looking at section 48 of the 1956 Act this becomes clear. It is, of course, rather academic, given that the 1995 SI came into effect well before any publication-based copyrights for films under the 1956 Act - and the 1988 Act as enacted - would have expired.

[number6]

Thanks guys.

So would it follow that any film that is in the public domain in the US is fair game worldwide, or have I misinterpreted?

[AndyJ]

Hi number6,

No, we can't say that definitively; it would depend on the copyright law in that other country as to what protection they decided to provide. However I can't name any countries where they would apply their own term even when a work failed to gain copyright in the country of origin.

[number6]

Ok, so there's no blanket rule I can apply?

I'm planning on using more PD media, so I'll come back and check.

Thanks!

[Nick Cooper]

I think we can say at least that if the US PD status is due to expiration (especially - where relevant - after the first 28 year term), it may well still be protected elsewhere in the world. Night of the Living Dead is something of an exception, given its lack of US protection on a technicality.

I would tend to think that the proof of the pudding is in the eating. There are a large number of American films that are PD in the country of origin, yet we simply don't see multiple claimed PD releases of them in the UK.

[number6]

Ok, thanks.
House on Haunted Hill is PD in the US due to a failed copyright renewal. How would you see that example?

[AndyJ]

Hi number6,

First of all I have not been able to verify that the original House on Haunted Hill film is in the public domain, and if so, why. I know the Wikipedia entry says it is, but the citations in the article don't confirm this. The circumstances matter: if copyright never camer into existence because the film was not registered or failed to contain a proper copyright notice, then I think it would fall to be treated as with the Night of the Living Dead. However, if the film was registered for its first 28 year period, but the registration was not renewed as you suggest, even though this would mean that the initial copyright term was running at the time the 1976 Copyright came into effect, copyright would have ended on 31 December 1989 (see this Wikipedia article for an explanation).

So let's proceed on the basis that, in the USA, the film was first registered for copyright but because it wasn't re-registered, it's now in the public domain there. And for the sake of clarity, what follows only applies to the original black and white version of the film, not any subsequent colorised versions.

IMDB says the UK release was September 1959, whereas the US release was 14 February 1959, so as the UK release was not within 30 days of the release in the country of origin, it would not have been treated as if the film had originated in the UK. A strict interpretation of section 13B(7) would mean that only the 28 year term provided for by US law (ie the initial registration period) would apply in the UK. As you have seen, Nick Cooper says that the existence of the 1891 bilateral agreement between the US and the UK would have overridden this provision; I'm not so sure. Because we don't have the text of the agreement, or more importantly, the text of the Order in Council which brought the treaty into UK law, we can't be sure whether the treaty meant that a US work would get the same treatement as a UK work, or that UK law would only provide the same treatment as was available on the originating country, provided that did not exceed the term available in the UK.

The best guidance on this is to be found in section 29 of the 1911 Copyright Act. However it is worth noting that this section only applies to literary, dramatic, musical or artistic works. The key parts are to be found in sub-section (1)(a):

His Majesty may, by Order in Council, direct that this Act (except such parts, if any, thereof as may be specified in the Order) shall apply --
(a) to works first published in a foreign country to which the order relates, in like manner as if they were first published within the parts of His Majesty's dominions to which this Act extends.

Several provisos then followed, the most relevant being sub-sub-section (ii) which says:

the Order in Council may provide that the term of copyright within such parts of His Majesty's dominions as aforesaid shall not exceed that conferred by the law of the country to which the Order relates.

For obvious reasons the 1911 Act does not mention cinematograph films (or sound recordings and broadcasts) so we cannot know whether an Order in Council from that era would have been carefully worded so as to restrict its effect just to literary, dramatic, musical or artistic works, or to 'works' in general.

The 1956 Copyright Act, which would have applied to this particular film, covers some of the same ground in its section 32. This time we know that these provisions also apply to cinematograph films. However the explicit proviso that an Order in Council may restrict the operation of UK law so that the term does not exceed the term available in the country of origin has been omitted. It just says that an Order may specify exceptions or modifications to the general rule. Of course we are not concerned with any Orders in Councils which were made after the 1956 Act, only the one made to reflect the 1891 Treaty. Unhelpfully, the remainder of the 1956 Act contains no corresponding provision of the sort we find in section 13B (7) of the 1988 CDPA. In other words there is considerable uncertainty about whether House on Haunted Hill could expect the full UK term of 50 years from its UK release (later to become the lifetime of its director etc plus 70 years), or just the original 28 years of its US copyright term. In the absence of the text of the original Order in Council, and a strict reading of the 1956 Act, I would tend to think it was probably the former.

I'm sorry I can't provide a more precise answer.

[AndyJ]

Although I said that the best guidance as to what may have been contained in the 1891 Treaty was to be found in the 1911 Copyright Act, having done a little more research into this, I think that the 1886 International and Colonial Copyright Act is also highly relevant to the thinking at that time.

The 1886 Act was the means by which the obligations of first Berne Convention were brought into UK law. It is worth noting that the USA did not become a signatory to the Berne Convention until over a hundred years later, in 1988, and so the 1886 Act does not apply to relations with the USA, although obviously as negotiations with the USA over a bilateral treaty were under way around the same time, they are likely to have been heavily influenced by the Berne negotiations.

The key passage from the 1886 Act for our purposes is contained in section 2 (3);

The International Copyright Acts and an order [in Council] made thereunder shall not confer on any person any greater right or longer term of copyright in any work than that enjoyed in the foreign country in which such work was first published.

[AndyJ]

The more I look into the detail of the bilateral arrangements between the USA and the UK at the end of the nineteenth century, the less I am convinced that there was an actual treaty. It seems more likely that there was a less formal agreement, such as a Memorandum of Understanding.

This conclusion is based on a number of factors:

1. There are no references to any treaty of this sort listed in the records of the Foreign Office held by the National Archives.
2. One of the two main authorities on UK copyright law, The Modern Law of Copyright1, Volume III has an extensive list of treaties, as well as primary and secondary legislation (including Orders in Council) stretching back to the Engraving Copyright Act 1734. It makes no mention of either a treaty with the USA or any Order in Council for the relevant period pertaining to such an arrangement. The entries do include the various International Copyright Acts of 1844, 1852 and 1886, as well as an Order in Council dated 2 December 1887 (relating to the Berne Convention, mentioned in my earlier post above). Given the comprehensiveness of the listings, I can't believe there was a error in omitting a US/UK treaty.
3. The second authority on UK copyright law, Copinger and Skone James on Copyright2 similarly makes no spefic mention of a US/UK treaty around this time. Significantly it does say, at para 1-43:

   Bilateral Treaties. In the nineteenth century, as a rule, national copyright laws denied any protection to works of foreign authors, and what protection did exist resulted from bilateral treaties. The importance of these treaties has been superseded by the international conventions mentioned above [ie Berne, the UCC etc]

4. None of the other standard references on international copyright law refer to a specific US/UK treaty around this time. I think the clearest explanation of what actually occurred is described in section 3.1.1 of International Copyright3.

   In 1891, under pressure from English publishers as well as from American publishers, the US Congress passed the Chace Act, authorising protection in the United States of works of citizens or subjects of a foreign state or nation "when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its citizens ..."

Since the UK had already enacted a somewhat similar piece of legislation, the International Copyright Act 1886, it would seem that all the pieces were in place to formally conclude the agreement. I have already quoted from the 1886 UK Act and so, if I am right about this sequence of events, then we can say categorically that, at that time, the UK was not extending unqualified rights to foreign works - the period of protection would not exceed that provided for in the country of origin.

Just in case the wording of section 2(3) of the 1886 Act is not sufficient to establish the UK's position on the matter, when Britain concluded a bilateral copyright treaty with Austria-Hungary on 24 April 1893, the final sentence of Article 1 of the Treaty says this:

These advantages shall only be reciprocally guaranteed to authors and their legal representatives when the work in question is also protected by the laws of the State where the work was first published, and the duration of protection in the other country shall not exceed that which is granted to authors and their legal representatives in the country where the work was first published.

Footnotes
1. The Modern Law of Copyright Laddie, Prescott and Vitoria 2011 4th edition published by Lexis Nexis. Volume III Appendix 2 Part A (UK Secondary Legislation),Appendix 3 (Legislation referring to works made before 1 July 1912) and Appendix 4 (International Conventions).

2. Copinger and Skone James on Copyright eds Kevin Garnett, Gillian Davies and Gwilym Harbottle 2011 16th edition published by Sweet and Maxwell. Volume 1 page 20 and the whole of chapter 3.

3. International Copyright, Paul Goldman and Bernt Hugenholz 2010 2nd edition published by Oxford University Press. The quote can be found on page 32.

[Nick Cooper]

This is the US proclamation for 1891 (starts at the bottom of the first page):

https://govtrackus.s3.amazonaws.com/leg ... -Pg981.pdf