Sorry for those of you who don’t want to hear it but if a company like Criterion decides to restore a public domain film and releases it there is no way they can copyright their “restored version”. Think about what restoration is for a second…you can’t copyright something just because you put it back to the way it was supposed to be.
So to answer suspiciouscoffee’s original question yes you can take their restoration of Night of the Living Dead rip it and do whatever you want with it.
Again, it is not Criterion who have copyrighted the new restoration, but MoMa and Image Ten. And yes, it is protected - while the film itself is still public domain, and can still be released by anyone via any of the old masters, the 4K restoration is technically a derivative work that is protected and registered separately, in the same way that someone could copyright their own scan of the film if they chose to do so; the difference is just that your version would be shitty and redundant next to their definitive version. So you can use many of the previous masters for your projects, but not the 4K restoration.
You can’t copyright a scan of a public domain film. Whether you scan it in 4K or 10K it’s still just that - a scan of a public domain film. A derivative work? Not for cleanup/restoration. It’s the same public domain film whether it has scratches, dirt, splices etc. or not. Not to downplay the restoration process as I’ve worked on restoration projects before and I agree it’s a ton of tedious hard work but you can’t clean up a film and re-copyright it. I just looked up Image Ten’s recent copyright registration with the USCO with the following “Basis of Claim: digitally remastered audio and video; edited video including shot-by-shot adjustments to contrast levels and density, digital grain stabilization, scratch and dirt removal, overall film stabilization; added introductory title frames; digitally recreated and replaced damaged frames; edited audio to change sound effects; added sound effects to audio; remixed audio from multiple master sources; edited audio for dropouts, noise reduction and wow and flutter reduction.”
Just because there is a registration with the USCO doesn’t mean anything. The USCO is merely a record keeping office. I could open up a whole other can of worms on this one but basically if you are ballsy enough…you or I could claim copyright on a public domain movie and file a registration pretending to own a motion picture. Yes there are assholes who do this. Whether or not the copyright holder’s claim is valid or not would have to be determined in a lawsuit which 99% of the time is hardly worth it as the only person who makes out in the end are the attorneys.
The bottom line is that this Night of the Living Dead restoration registration would fall under the category of “slavish copy”.
“A work that is merely a “slavish copy”, or even a restoration of an original public domain work is not subject to copyright protection. In the case of Hearn v. Meyer, 664 F. Supp 832 (S.D.N.Y. 1987), an illustrator attempted unsuccessfully to claim copyright on his painstakingly restored versions of original Wizard of Oz illustrations. The illustrations were in the public domain, and the court found that the act of rendering them with bolder and more vibrant colors was not an original contribution sufficient to remove the restored works from the public domain.”