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Author Topic: Copyright and film restoration  (Read 692 times)
Jim H
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« on: February 01, 2013, 10:53:46 AM »

I know there's some pretty smart people on this board, two or three with some legal background.

Well, I've trying to pin down a copyright issue.  I want to use a clip from Popeye the Sailor Meets Sindbad the Sailor in an educational non-profit video (my usage would most likely pass Fair Use muster, actually - short, non-profit, limited audience, educational purposes), which is definitely public domain.  However, the version on archive.org is pretty cruddy.  There is a very nice quality restored version on youtube and elsewhere, which I assume was done by whoever owns the original negatives.

Anyway, my general opinion is that restoration done in this way (cleaning up the image and audio to as close to original presentation quality as possible) is not considered creative enough to grant any new copyright protection.  Am I correct in this thinking?
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« Reply #1 on: February 01, 2013, 12:02:46 PM »

I don't think the issue has been settled, but common sense says that a "restoration" is not an "original work of authorship."
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« Reply #2 on: February 04, 2013, 03:06:39 AM »

There is a very nice quality restored version on youtube and elsewhere, which I assume was done by whoever owns the original negatives.

Anyway, my general opinion is that restoration done in this way (cleaning up the image and audio to as close to original presentation quality as possible) is not considered creative enough to grant any new copyright protection.  Am I correct in this thinking?

I can assist although I don't qualify as smart or having any legal training but I do know about copyright and all the stuff that goes with it.  Wink

We had to do a fair amount of cleaning and upgrading as well as selection of the best material when all our feature films started to be digitized back in 1998 when the film library which forms the bulk of our collection was sold. Where negatives of films were available, those were sent to the labs for transfer and cleaning and where negatives weren't available, the best prints were sent, as in the case of the much requested Shangani Patrol.

In this case, the company that bought the feature films as from 1916 also claims the copyright in all these films, even though that company made none of these films and has only been in existence since 1986. All the companies that produced the features in the collection here have long since ceased to exist so there are no rights challenges here and all the upgrading, cleaning etc was done by us and the labs, not by the new copyright holders.

I don't know if this has answered your question, Jim.  Smile
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« Reply #3 on: February 04, 2013, 03:10:02 AM »

I don't think the issue has been settled, but common sense says that a "restoration" is not an "original work of authorship."

That is correct: just look at Kevin Brownlow and the years he spent restoring Abel Gance's Napoleon at tremendous cost to himself. Mr Brownlow did not and still has never (as far as I know) claimed any rights in the production or its' restoration.
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« Reply #4 on: February 04, 2013, 09:35:25 AM »

The more important question for you is probably whether the company claims to own a copyright in the restored work, rather than whether they would actually win in a court of law. That you can find out by asking.
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« Reply #5 on: February 04, 2013, 10:07:02 AM »


The more important question for you is probably whether the company claims to own a copyright in the restored work, rather than whether they would actually win in a court of law. That you can find out by asking.


Isn't this all really just academic, though?  As he said, his use looks to be covered by Fair Use no matter who owns the rights.  It sure seems to tick off a lot of the Fair Use check boxes to me, a lay observer, anyway.
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« Reply #6 on: February 04, 2013, 11:39:34 AM »


The more important question for you is probably whether the company claims to own a copyright in the restored work, rather than whether they would actually win in a court of law. That you can find out by asking.


Isn't this all really just academic, though?  As he said, his use looks to be covered by Fair Use no matter who owns the rights.  It sure seems to tick off a lot of the Fair Use check boxes to me, a lay observer, anyway.

Suppose you use an image in a way that qualified as Fair Use. A person with a legitimate, or even an illegitimate, copyright claim sues you in Federal Court. Even though you would eventually win, do you spend the money and time it would take to pursue the case, or just give up and move on to something easier? The large majority of people give up, a fact the "copyright holder" banks on.
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« Reply #7 on: February 04, 2013, 01:50:59 PM »


Suppose you use an image that is Fair Use. A person with a legitimate, or even an illegitimate, copyright claim sues you in Federal Court. Even though you would eventually win, do you spend the money and time it would take to pursue the case, or just give up and move on to something easier? The large majority of people give up, a fact the "copyright holder" banks on.


Okay. follow-up question: Are there really a lot of rights holders suing in what 'appear' to be cut-n-dry Fair Use cases? 

(1) This case is 'educational' and 'editorial.'  It looks like only a very tiny excerpt is being used.  It would be VERY difficult to show damages in this instance, right?

(2) What real tort is there?  What does someone gain by suing in such a case?  A take-down notice for an educational, non-profit video seen by a very limited audience?  Would <i>they</i> go to the expense of suing without being able to show loss or damage?

I could see the larger point if he were selling a very popular video to a mass market.  A 10 s clip "may be" Fair Use, or it may not ... in someone's eyes, anyway.  There, damages can be shown (profits from sales), so why not roll the dice on a suit.

I understand copyright law is a nebulous arena, but this one seems a little clearer than most to me...though I am not suggesting anyone follow MY comments as "advice" any copyright issue.  I just know how *I* would see it.

I do agree that some folks do hold their IP a little close to the vest, and try to milk it beyond it's true value.  In my first book, I wanted to use a block diagram of an older, obsolete microprocessor from another book (which I believe was out of print) I had.  I contacted the publisher about the rights to use their diagram, fully attributed of course.

They demurred, and wanted to "sell" me a license to use it....for a ridiculous amount.  It was a block diagram, for crying out loud.  I told them "thanks, but no thanks."

In the end, they lost if not profit than at least visibility.  Though of VERY modest (read "slight" or "virtually nonexistent") readership, that diagram in my book would have been some "free" marketing for their older work, and would have set them up as a publisher of "useful reference books on microprocessors," or at least referenced by my one book.

Interestingly, I have some other figures and diagrams by other workers in my book that had no trouble whatsoever letting me use them (again, properly attributed)...such as the ones from a researcher at IBM.  Different strokes, I guess.
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« Reply #8 on: February 04, 2013, 07:58:31 PM »


Suppose you use an image that is Fair Use. A person with a legitimate, or even an illegitimate, copyright claim sues you in Federal Court. Even though you would eventually win, do you spend the money and time it would take to pursue the case, or just give up and move on to something easier? The large majority of people give up, a fact the "copyright holder" banks on.


Okay. follow-up question: Are there really a lot of rights holders suing in what 'appear' to be cut-n-dry Fair Use cases? 


Probably not. However there are exponentially more "cease and desist" letters that are sent out than cases that ever see a courtroom. Disney lawyers in particular are notorious for sending C&D letters to anyone they catch using any of their content in any way. The wife of an attorney who runs an intellectual property forum got one for showing a Disney movie to toddlers at a daycare she ran!

(1) This case is 'educational' and 'editorial.'  It looks like only a very tiny excerpt is being used.  It would be VERY difficult to show damages in this instance, right?


Maybe, but the Copyright statute provides for a civil award of the greater of actual damages or liquidated statutory damages---meaning a copyright holder wins, at the very least, $750 even if their actual damages are $0. Of course, the cost of hiring a lawyer to defend you in court is even higher than that, meaning that just the threat of legal action will stop most people from challenging a copyright claim unless they have a good case and the copyright is worth lots of money.


(2) What real tort is there?  What does someone gain by suing in such a case?  A take-down notice for an educational, non-profit video seen by a very limited audience?  Would <i>they</i> go to the expense of suing without being able to show loss or damage?


No tort involved, copyright is authorized by the Constitution and is not a matter of common law. Your second point is a good one, though.

Chances are no one is interested in Jim's project. But, since he bothered to ask I thought it was advisable to describe the worst case scenario.

I could see the larger point if he were selling a very popular video to a mass market.  A 10 s clip "may be" Fair Use, or it may not ... in someone's eyes, anyway.  There, damages can be shown (profits from sales), so why not roll the dice on a suit.

I understand copyright law is a nebulous arena, but this one seems a little clearer than most to me...though I am not suggesting anyone follow MY comments as "advice" any copyright issue.  I just know how *I* would see it.

I do agree that some folks do hold their IP a little close to the vest, and try to milk it beyond it's true value.  In my first book, I wanted to use a block diagram of an older, obsolete microprocessor from another book (which I believe was out of print) I had.  I contacted the publisher about the rights to use their diagram, fully attributed of course.

They demurred, and wanted to "sell" me a license to use it....for a ridiculous amount.  It was a block diagram, for crying out loud.  I told them "thanks, but no thanks."

In the end, they lost if not profit than at least visibility.  Though of VERY modest (read "slight" or "virtually nonexistent") readership, that diagram in my book would have been some "free" marketing for their older work, and would have set them up as a publisher of "useful reference books on microprocessors," or at least referenced by my one book.

Interestingly, I have some other figures and diagrams by other workers in my book that had no trouble whatsoever letting me use them (again, properly attributed)...such as the ones from a researcher at IBM.  Different strokes, I guess.

I think it's always good practice to ask permission to use someone else's work even if you have a Fair Use defense. I publish a movie yearbook each year and I will not use any stills or graphics without permission even though I think I would be doing them a favor by giving them free advertising.
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« Reply #9 on: February 05, 2013, 12:17:39 PM »


Probably not. However there are exponentially more "cease and desist" letters that are sent out than cases that ever see a courtroom. Disney lawyers in particular are notorious for sending C&D letters to anyone they catch using any of their content in any way. The wife of an attorney who runs an intellectual property forum got one for showing a Disney movie to toddlers at a daycare she ran!


Leaving Disney aside for a moment, I think my response to a C&D letter, at least in a case like Jim's, would be to respond with "I believe I'm covered by Fair Use; if you believe otherwise, feel free to sue me."  They still have Burden of Proof to show infringement, right?

(I'm baiting the question here just a little bit...TECHNICALLY, I don't have to say a word in court, so in theory at least, it costs me nothing to "get sued."  Aside from that, though, I'm the type that would fight it on principle if I really thought I was "right.")

Another example from my own experience.  I was selling a used piece of equipment a few years ago that included software...think of a piece of laboratory diagnostic equipment.  I advertised this used gadget on the Internet.  I received a letter from some dude claiming he owned the "rights" on that software and that it was illegal for me to sell it without procuring a license to do so from him.

I believed he was wrong and acted accordingly.  I have never heard back from him.

Strong arm 'bullying' in IP cases is the norm, but an unfortunate one.  My own personal approach is "put up or shut up."  That said, I am VERY aware of where I think the "line" is, and have no intention of 'stealing' IP.  As I said, with my book, I sought permission for any/all works I wished to include.

Quote

Maybe, but the Copyright statute provides for a civil award of the greater of actual damages or liquidated statutory damages---meaning a copyright holder wins, at the very least, $750 even if their actual damages are $0.


Ok, I did not realize that.  That is interesting.

Still, though, I'd find it hard to believe that anyone could justify $750 vs the cost of getting that awarded by a court. 

Quote

Of course, the cost of hiring a lawyer to defend you in court is even higher than that, meaning that just the threat of legal action will stop most people from challenging a copyright claim unless they have a good case and the copyright is worth lots of money.


That cuts both ways...not just the cost to defend against it, but also the cost of "prosecuting" it. 

Quote

Chances are no one is interested in Jim's project.



HAHA...I know what you meant, but....   BounceGiggle

Quote

 But, since he bothered to ask I thought it was advisable to describe the worst case scenario.


I agree with that, but I'm just trying to see the "realistic" and "practical" angles.

Getting back to Disney for a second...while I see their C&D to a preschool as a bit over the top, I can kinda sorta their side as well.  They have SO MANY "real" infringements to fight that they probably believe it's easier to just nip them ALL in the bud.

Also, it is arguable (maybe not winnable...who knows?) that the day care showing Disney movies *IS* an infringement.  It's a place of business, which makes it a far different sort of animal. 

The only reason I have a lot of this on my mind anyway is because I've been looking to "model release" related law in photography.  There are a LOT of misconceptions about that, and a lot of people misrepresent the 'truth' on the Internet.  I've seen people go so far as to say "you ALWAYS need a release," which is in some way analogous to "you can NEVER use ANY copyright protected material."

So, like Jim, I'm sort of trying to learn where the "in practice" boundaries are (or about where they are) in an area that can be "grey" in some cases but should be "clear cut" in others. 

Correct me if I'm wrong about this, too, but it seems to me like "intent" plays a bit of a role.  Some uses clearly intend to 'infringe' and others are clearly not.  I get the big grey area between.  I guess my question is "Is 'intent' to infringe something the court considers at all?"

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« Reply #10 on: February 05, 2013, 10:47:01 PM »


Leaving Disney aside for a moment, I think my response to a C&D letter, at least in a case like Jim's, would be to respond with "I believe I'm covered by Fair Use; if you believe otherwise, feel free to sue me."  They still have Burden of Proof to show infringement, right?


Sure, but the deep-pockets plaintiff (like Disney) banks on the idea that you can't afford to defend a suit.


That cuts both ways...not just the cost to defend against it, but also the cost of "prosecuting" it. 



True---as in most legal cases, victory goes to the side with more money to throw at the issue. That's usually the copyright holder (or person claiming to hold the copyright).


Getting back to Disney for a second...while I see their C&D to a preschool as a bit over the top, I can kinda sorta their side as well.  They have SO MANY "real" infringements to fight that they probably believe it's easier to just nip them ALL in the bud.

Also, it is arguable (maybe not winnable...who knows?) that the day care showing Disney movies *IS* an infringement.  It's a place of business, which makes it a far different sort of animal. 


Most definitely Disney would win if it actually went to trial. People are usually surprised to find out they can be that petty, however.


So, like Jim, I'm sort of trying to learn where the "in practice" boundaries are (or about where they are) in an area that can be "grey" in some cases but should be "clear cut" in others. 

Correct me if I'm wrong about this, too, but it seems to me like "intent" plays a bit of a role.  Some uses clearly intend to 'infringe' and others are clearly not.  I get the big grey area between.  I guess my question is "Is 'intent' to infringe something the court considers at all?"


I think everyone who infringes a copyright intends to do so (whether they intend to cause harm is not really legally relevant). Fair Use is not an issue of intent but an "affirmative defense," which means you are saying "I know I technically broke the law but I fall under a recognized exception that allows me to do so under this set of facts."
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« Reply #11 on: February 05, 2013, 11:27:45 PM »

Quote

I think everyone who infringes a copyright intends to do so (whether they intend to cause harm is not really legally relevant). Fair Use is not an issue of intent but an "affirmative defense," which means you are saying "I know I technically broke the law but I fall under a recognized exception that allows me to do so under this set of facts."


I guess I thought of Fair Use in more of a "Self Defense" analogy.  Self Defense admits you committed a homicide, but NOT that you broke a law to do so.  In this way, Fair Use is saying "I copied part of his work, but not in an infringing way."  Infringement in that I "infringed" upon his right to profit from his work.

Perhaps you can help me understand this better, but I just looked at the relevant sections of Title 17, and under Section 106 "Exclusive Rights," it says "subject to" and lists the Fair Use section.  Exclusive Rights do not apply to Fair Use circumstances, so Fair Use is not an admission of "I broke the law," right?

So, no lawyer here, but...if Fair Use is codified in the law as an exception to "exclusive rights," how does one get to saying a Fair Use claim is the admission of violation of exclusive rights?  It seems to me that someone claiming "exclusive rights" would be violating the law as stated in Sections 106 and 107 if they "went after" someone using a work in a Fair Use manner. 

(Admittedly that's kind of hyperbole...my point is that it seems like Fair Use is just as strong a protection against Exclusive Rights as Exclusive Rights is a protection in almost every other cases...does my point make sense...even if it is inaccurate?)

Isn't a Fair Use case pretty much someone claiming Exclusive Rights (Section 106) where the law seems to specifically say they don't have it (also Section 106)?

Or, maybe I'm just getting hung up on semantics, something that never happens in court.   TeddyR
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« Reply #12 on: February 06, 2013, 07:20:52 PM »

Quote

I think everyone who infringes a copyright intends to do so (whether they intend to cause harm is not really legally relevant). Fair Use is not an issue of intent but an "affirmative defense," which means you are saying "I know I technically broke the law but I fall under a recognized exception that allows me to do so under this set of facts."



I guess I thought of Fair Use in more of a "Self Defense" analogy.  Self Defense admits you committed a homicide, but NOT that you broke a law to do so.  In this way, Fair Use is saying "I copied part of his work, but not in an infringing way."  Infringement in that I "infringed" upon his right to profit from his work.

Perhaps you can help me understand this better, but I just looked at the relevant sections of Title 17, and under Section 106 "Exclusive Rights," it says "subject to" and lists the Fair Use section.  Exclusive Rights do not apply to Fair Use circumstances, so Fair Use is not an admission of "I broke the law," right?

So, no lawyer here, but...if Fair Use is codified in the law as an exception to "exclusive rights," how does one get to saying a Fair Use claim is the admission of violation of exclusive rights?  It seems to me that someone claiming "exclusive rights" would be violating the law as stated in Sections 106 and 107 if they "went after" someone using a work in a Fair Use manner. 

(Admittedly that's kind of hyperbole...my point is that it seems like Fair Use is just as strong a protection against Exclusive Rights as Exclusive Rights is a protection in almost every other cases...does my point make sense...even if it is inaccurate?)

Isn't a Fair Use case pretty much someone claiming Exclusive Rights (Section 106) where the law seems to specifically say they don't have it (also Section 106)?

Or, maybe I'm just getting hung up on semantics, something that never happens in court.   TeddyR


Yes, it's mainly semantics.  Smile Self defense is an affirmative defense, just like Fair Use.  In both cases you admit intentionally committing an otherwise prohibited act but avail yourself of a justification. The important part about the affirmative defense is that it shifts the burden of proof to the defendant. The copyright holder does not have to prove the use was not fair, the alleged infringer has to prove the use was fair. Here's a detailed explanation: http://www.theiplawblog.com/archives/-copyright-law-fair-use-an-affirmative-defense-to-copyright-infringement.html.

Along the lines I think you are driving at, if the use were very obviously a case of Fair Use and the copyright holder was pursuing the case in bad faith just to harass someone, you could maybe use some other doctrine like a Rule 11 claim to sanction them.
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« Reply #13 on: February 06, 2013, 08:27:07 PM »


The important part about the affirmative defense is that it shifts the burden of proof to the defendant.


Ah, yes.  That's it.  Thanks.

Quote

Along the lines I think you are driving at, if the use were very obviously a case of Fair Use and the copyright holder was pursuing the case in bad faith just to harass someone, you could maybe use some other doctrine like a Rule 11 claim to sanction them.


Ah, okay.  That's pretty cool.  So, there is provision for "very clear" cases of abuse.

This is all good stuff.  Thanks!
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« Reply #14 on: February 09, 2013, 01:23:53 PM »

This has been an interesting discussion quite relevant to the video itself - rather amusingly, it's an educational video ABOUT copyright.  That's why I was hoping to show something that was truly public domain, as a DEMONSTRATION of public domain.  I think the odds are extremely remote of any cease and desist or other threats, I'd just rather be as careful as I can is all.  By the way, I have seen a number of cases in schools of teachers using copyrighted material in ways they're probably not allowed to.  Most holders give schools a pretty wide berth it seems, as they're not really hurt by the usage and schools have virtually no money anyway.  Not to mention bad PR.

Quote
The more important question for you is probably whether the company claims to own a copyright in the restored work, rather than whether they would actually win in a court of law. That you can find out by asking.

Yeah.  Good point.  There's quite a few examples, by the way, of people falsifying copyright claims.  A lot of accusations on Wade Williams on this point.
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