Night of the Living Dead

[AndyJ]

Hi Nick,

Thanks for the link. I think that confirms my theory about how the 'agreement' came about. I would still like to find a statutory instrument or Order in Council for the period immediately after the 1956 Copyright Act on the subject of those nations which qualified for the full protection of UK copyright law. There was a Copyright (International Conventions) Order 1957 SI 1957/1254 but it's not available on the legislation.gov.uk website. Tantalisingly part of the SI is available to view here, but not enough to show whether it included a clause about not extending the copyright term beyond what is provided for in the country of origin.

A later SI (SO 1979/1815) from 24 January1980 did not include a clause of this sort, so I suspect the earlier 1957 one also may have not done.

[number6]

Well thank goodness it's simple

Soooo...do we think that:

a. The 1891 act means "reciprocity" (ie, if it is PD in the US, it is PD in the UK)?

b. It means that any US movie will follow UK law regardless of its copyright status in the US (ie 70 years from death of writer or director)?

c. It has been superseded by the Berne Convention?

Thanks guys.

[AndyJ]

Hi number6,

Yep, the deeper back in time you go, the more complex it becomes; add to that two countries with quite different copyright systems, and you get extra complex.

As for your alternatives, forget c. The Berne Convention is only relevant to the extent that it has been incorporated into domestic law.
I would favour a. as the answer. Nick might well support answer b.

[number6]

Ok, thanks.

I suppose that the $64,000 question is...has anybody ever successfully argued either case a. or case b?

I'm pretty sure I'm in the clear with Night of the Living Dead because nobody is pursuing copyright, regardless of the actual situation. It's beginning to sound like it is such a potential minefield that most other movies would be out of bounds just in case anybody decides it's worth a punt to see if they can litigate.

I had read the Berne Convention as: "if X is the case with a movie in the originating member, it's the case in all (unless published elsewhere within 30 days)".

Given the complexity, is it even possible to say with certainty which rule applies? If not, it's a bit of a mess, and probably explains why nobody else seems to be doing what I'm doing (which is replacing the original soundtrack with a new comedy one, using dubbing actors).

[Nick Cooper]

I would tend to agree that if Night of the Living Dead has no copyright in the country of origin, then there is nothing to reciprocate.

However, if a film of US origin has lapsed there due to "normal" expiration (i.e. after renewal and thus 56 years), I'm much less convinced that the UK would curtail protection to match the US term, simply because - as I pointed out before - that would apply to literally hundreds if not thousands of films, yet they are not being treated as being PD - and thus exploited - in the UK.

[AndyJ]

Hi number6,

I'm not aware of any case which has looked at this subject specifically. If there had been a case it would help to clarify the matter. Neither of the authoriies I mentioned earlier (Laddie, Prescott and Vitoria & Copinger and Skone James) mention a case on the topic so I would be inclined to think there hasn't been one. The best I can suggest is, if copies of films in the same situation as Haunted Hill have been made available in the UK on VHS or DVD, check what the UK distributor is claiming as far as copyright is concerned. The way the copyright notice is phrased will probably provide a good indication of the true situation. If the copyright notice says something like '© MGM PIctures Inc' or 'Distributed in the UK under licence from Warner Bros' or something like that then it's probably best to avoid such films because if one of the big studios is claiming copyright in the UK, they will want to defend that claim and have the legal teams to fight the case, and so you could become the test case we would all like to see! However if the copyright notice just mentions a relatively small UK distributor, chances are they have taken advantage of the fact the film is in the public domain and published at their own risk. Obviously you should avoid any new version of such films, for instance, like the colourised version of House on Haunted Hill, as that will almost certainly have a separate copyright which is still current. The same applies to director's cut versions and the like.

[AndyJ]

@ Nick,

I understand why you think that, but really when you look at it, both films are equally deserving of a proper copyright term but both have failed to get it under the old US system albeit for different reasons, so why should another country such as the UK think it necessary to provide a better outcome than would apply in the USA? Taking the historical view, as I outlined before, the UK position was that protection here would not be available for longer than was provided for under the system in place in the country of origin, even where bilateral agreements had been set up. By the middle of the last century this lesser term rule really only applied to the USA since most other nations had signed up to the Berne Convention's minimum of 50 years from first release. This may account for why the 1956 Act doesn't include the clause about the rule of the lesser term, and why it first appeared in the 1988 Act, following the USA's own 1976 Copyright Act which brought in the complicated formula for calculating the term for works made under the old regime. Otherwise I can't see any reason why the 1988 Act needed to mention the subject in section 13B(3), since no nation of any significance (except the USA if the formalties hadn't been followed) had a shorter term* than the UK. Obviously the lifetime plus system is irrelevant here as neither the US nor the UK adopted that approach until much later.


*OK there were anomalies about the way photographs were treated, but let's not open that can of worms!

[Nick Cooper]

13B(7) was, of course, only introduced to the 1988 CDPA by the 1995 SI. However, it does leave that glaring anomaly that there are a mass of films that are PD in the US that aren't being exploited as such in the UK. Is this simply a case of nobody wanting to take the risk? I do recall that there was a instance in the 1980s or early-1990s of BBC Video trying to release an American film version of a Charles Dickens story, on the grounds that it was PD in the US, but they had to back down when threatened with legal action.

I could see that the waters would also be muddied if - as per 13B(8) - one of the "authors" of a US film was nonetheless British, e.g. Hitchcock (although he also had US nationality from 1955).

[AndyJ]

Hi Nick,

Thanks for correcting my mistake with section 13B(7)!

I can't explain why so few American films which are in the public domain there haven't been exploted here. My guess would be that it's too complicated and possibly the economics don't make it worthwhile. Also there may be an issue with getting access to a master print of the original film to make digital copies from. Public domain doesn't equal public access.

And of course it's not just films. There are thousands of books, plays and musical works which suffered the same fate as a result of the old US registration system.

As for your other comment about British directors etc, I think there is no doubt that, post 1995, their work would be fully protected in the UK, irrespective of where the film was first published. Books, plays, music and artistic works (less photgraphs) by British authors working abroad would have been protected by the lifetime plus rules from the 1911 Act.

As Hitchcock never renounced his UK citizenship, his later films would definitely qualify under the lifetime plus rules on both sides of the Atlantic, provided they were still in copyright in the UK in 1995 (ie films released from 1 Jan 1945 onwards). His earlier work would gain no real advantage by being classed as being by a UK director, since obviously the term was based on the release date. For example, his first film The Pleasure Garden is in the public domain in the USA whether or not it was correctly registered etc, and would have also entered the public domain in the UK on 1 Jan 1958, under the UK rules then in place, and copyright would not have been revived by the 1995 SI, irrespective of his nationality.

[Nick Cooper]

Why would The Pleasure Garden have lapsed in the UK after the end of 1957? The film was released in 1926, but at the time films were protected as dramatic works and as a series of photographs, so either death plus 50 years or creation plus 50 years. The transitional Savings in the 1956 Act (Part II (14-16) specifically state that films made before enactment remained protected as dramatic works and series of photographs, so that would have meant the film - as with all of Hitchcock's British films - was still protected in 1995.

[AndyJ]

Hi Nick,

I suppose I should have forseen your reply, having mentioned not opening the photographic can of worms in a previous post! Hitchcock was 'only' the director of The Pleasure Garden, so absolutely nothing to do with copyright attaches to his personal creativity. The film was first released in the UK in April 1926 and so it was fully protected here anyway, not withstanding any bilateral agreement with the USA. Copyright in the individual images of the film would have expired 50 years after the film's release, so before 1977. The screenplay was by the English writer Eliot Stannard who died in 1944, so copyright in the script would have ended on 31 December 1994, just too early to get the 20 year extension. It is worth mentioning that his script was based on a novel by Marguerite Florence Laura Jarvis (under the pen name Oliver Sandys). She died in 1964, but I think it is pretty arguable that while her novels will continue to be protected by copyright until the end of 2034, the same cannot apply to the film, since there was Stannard's separate screenplay for it, and I have seen nothing to suggest that she co-authored the screenplay. The film was silent so there is no sound track which we need to consider.

So while, yes, you right that not all of Hitchcock's early films are likely to be in the public domain, for the reasons you give, in the case of The Pleasure Garden, it has been out of copyright for at least 25 years. My main point is that until the 1995 SI, Hitchcock's nationality is not a relevant factor.

[Nick Cooper]

I'm a little surprised by the notion that a film director would not count as an author under the 1911 Act, not least because it is rare to encounter a film where the director hasn't imposed at least some changes on the script during the filming process.

In fact, Laddie et al, at least in the Third Edition, states:

"3.107 There was no definition in the 1911 Act of who was the author of a film treated as a dramatic work. Since the director is almost always responsible for the manner in which the film is shot, it is he who would supply the film with its original character and therefore be the author of the dramatic work."

It does then go on to deal with the scriptwriter as potential joint author by virtue of collaboration with the director - a potential minefield if ever there was one.

[AndyJ]

Hi Nick,

As number6 has already discovered, this ain't a simple area of law where certainty already exists. And as time goes on, so the chance of getting definitive case law also recedes. Legislators are, generally speaking, very bad at dealing with transitional arrangements. Schedule 7 of the 1956 Copyright Act was a brave attempt, but frankly it was not dealing with a particularly different regime when moving on from 1911. CDPA as enacted was equally clear and sensible, but the 1995 SI threw an enormous spanner in the works because English law was forced to conform to EU law, with its different ethos and the need to level up (to quote a phrase) across all member states. English law tends not to make retroactive changes where they are not strictly necessary. And as for the American legislators' approach with their 1976 Act and the subsequent 1998 Term Extension Act, I think the least said the better.

[number6]

Thanks guys.
Interestingly, as I mentioned it as an example earlier, I looked to see if anyone IS exploiting House on Haunted Hill in the UK. Turns out that they are. It is all over YouTube (which has an algorithm to spot infringement) and you can watch several versions of it (from several different "studios") on Amazon Prime.

The plot thickens.

[number6]

Hi guys. Fast forward to now. I have the film on various platforms. I have an online shop selling T shirts etc.

I just received a letter claiming that Image Ten own the name "Night of the Living Dead" and want me to drop the use of the name "Night of the British Dead" for selling merchandise, as it may be confused with their product and "it suggests an affiliation or endorsement by our client which does not exist."

"Image Ten is the owner of U.S. federal trademark registration, U.S. Reg. No. 3,686,876, and U.S. federal trademark applications, U.S. Serial No. 87/317,966 and U.S. Serial No. 97/507,417. "

Interesting that Serial No. 97/507,417 was filed only last month. Serial No. 87/317,966 appears to be suspended because it conflicts with rights to the same name owned by a beer company.

It also says that I should not be using images of actors from the films (frame grabs from the movie itself) on merchandising without permission.

What do you think?

Thanks!