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Question about public domain works

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Is it legal to put someone else’s restoration of a PD film online? For example, Criterion just released an HD restoration of Night of the Living Dead. Since the movie itself is public domain, would it be legal for someone to rip the video from the Blu-Ray and upload it to archive.org or something?

I have no plans to actually do this, I’m just curious.

The Drink in Question

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Good question! I know some smaller DVD labels have watermarked their transfers of PD titles because even smaller fly by night labels just rip them off. Collections of PD cartoons being an example. Purists hate the bug in the corner of the screen.

It would not surprise me if Criterion found a way to watermark their restoration in a way invisible to the eye and ear.

The recent Manos: The Hands of Fate restoration is copyrighted, but the Blu Ray provides an additional unrestored transfer from a different print with a fair use disclaimer.

originaltrilogy.com Moderator

Where were you in '77?

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Thanks for your response, Wook. I have davextreme’s “Mild Mannered Edition” Fleischer Superman shorts, which he used various DVD sources on in a manner that I assume is legal, but Criterion is a step above your average PD DVD label, so I wondered if they had copyrighted their transfer in some way. I assume they own their supplemental features, so those can’t be uploaded anywhere legally, but the movie itself I didn’t know anout. I’ll be interested to see if anyone tries it in the not too distant future.

The Drink in Question

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No - the restoration is owned by MoMA (and subsequently licensed to Criterion).

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Easier to answer than you think.
In order to copy the disc you must defeat a digital copy protection scheme. That is a crime by itself regardless of the movie’s copyright status.

Dr. M

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 (Edited)

According to several people at archive.org it depends. Just a new transfer and minor work generally don’t qualify, but major work might. some releases are clear on this matter for example my copy of “the brain that wouldn’t die” says specifically that the bonus features and the disc artwork are copyrighted. By the way archive.org has had a decent high definition copy of that long before the criterion release.

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Doctor M said:

Easier to answer than you think.
In order to copy the disc you must defeat a digital copy protection scheme. That is a crime by itself regardless of the movie’s copyright status.

Generally, but I bought the bluray of the Vampire Bat on bd-r from Film Detective, which was unprotected.

Also there are exemptions for fair use, but I’m guessing the poster wasn’t talking about those

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Yea, MoMA owns this particular restoration. That’s part of the release’s point; to finally give the movie a copyrighted faithful to source home video release.

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I don’t understand what you’re saying, but there is nothing to stop someone else doing their own scan (if they can access the film) and then releasing it royalty-free if they want.

__Valeyard.net

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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.

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Mr Shickadance said:

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.

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djsmokingjam said:

Mr Shickadance said:

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.”

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In the US there is ample legal president that this is legal.
Digitizing a photo or painting that is in the public domain should not create a new copyright on that copy, because an original work was not created. Bridgeman Art Library v. Corel Corp establishes a precedent that “Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under US law is originality.”

In other parts of the world this is less settled, but in the UK the National Portrait Gallery threatened Wikipedia for hosting their scans of old paintings. The museum backed down and the UK’s Intellectual Property Office then later said that “copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitized image of an older work can be considered as ‘original’.”

So in the US and probably the UK you should be fine to freely use and modify restorations as long as the original film is public domain.

Now, a lot of restoration houses do put copyright notifications on their work. They do this mostly so they can get paid for when another label wants to use their transfer. Because their business model depends on this it’s conceivable that they might go to court to try and defend them. You would probably win if you could afford to hire a lawyer and defend your case, but if you couldn’t then this would be an effective way to stop usage of their transfer.
There are weird areas this gets into such as if the restored tinting on silent films is copyrightable because it’s a creative decision, or because since the tinting aims to restore an original element of the film it is not copyrightable. Also, based on how the music industry works, multi-channel remixed soundtracks (from the original elements) are likely copyrightable depending on the creative decisions made.

Edit: And just beaten to it by Mr Shickadance

Star Trek: The Motion Picture - Director’s Edition HD Recreation
Duel (1971) - The Hybrid Cut
The Phantom of the Opera - 1925 Version Reconstruction - Rare Scores Collection

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ElectricTriangle said:

In the US there is ample legal president that this is legal.
Digitizing a photo or painting that is in the public domain should not create a new copyright on that copy, because an original work was not created. Bridgeman Art Library v. Corel Corp establishes a precedent that “Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under US law is originality.”

In other parts of the world this is less settled, but in the UK the National Portrait Gallery threatened Wikipedia for hosting their scans of old paintings. The museum backed down and the UK’s Intellectual Property Office then later said that “copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitized image of an older work can be considered as ‘original’.”

So in the US and probably the UK you should be fine to freely use and modify restorations as long as the original film is public domain.

Now, a lot of restoration houses do put copyright notifications on their work. They do this mostly so they can get paid for when another label wants to use their transfer. Because their business model depends on this it’s conceivable that they might go to court to try and defend them. You would probably win if you could afford to hire a lawyer and defend your case, but you couldn’t then this would be an effective way to stop usage of their transfer.
There are weird areas this gets into such as if the restored tinting on silent films is copyrightable because it’s a creative decision, or because since the tinting aims to restore an original element of the film it is not copyrightable. Also, based on how the music industry works, multi-channel remixed soundtracks (from the original elements) are likely copyrightable depending on the creative decisions made.

Edit: And just beaten to it by Mr Shickadance

Nah, not beaten. Very interesting stuff.

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Oh and in Germany, a Stuttgart court found in the opposite direction in a terrible blow to the public domain. It looks like it was appealed to Germany’s highest court, but I can’t find if the court decided to take the case. So it looks like right now this is not allowed in Germany.

Star Trek: The Motion Picture - Director’s Edition HD Recreation
Duel (1971) - The Hybrid Cut
The Phantom of the Opera - 1925 Version Reconstruction - Rare Scores Collection

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Very interesting responses from Mr Shickadance and ElectricTriangle, I guess I was mistaken. You still need to be careful though, as ElectricTriangle correctly pointed out a remixed soundtrack and also other creative elements on a release (bluray menus, artwork, audio commentaries, potentially subtitles, and other special features) are copyrightable so you would need to remove any works from the release that are not original.

__Valeyard.net

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Which brings us back to my post: If you circumvent a copy protection scheme like CSS or AACS you are in violation of the Digital Millennium Copyright Act. Period.

It doesn’t matter who does or doesn’t hold a copyright. If MoMa creates a 1080p restoration and another studio thinks they can just dump that to a disc and resell it without being given an unprotected version from MoMa, they will end up in court.

Dr. M

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DMCA doesn’t exist outside of the US. Also, currently in the US there’s an exemption for breaking copy protection for the purposes of using the resulting footage for commentary and short usage, which is weird, since it judges your intent when breaking DRM (what if you decided not to use that footage in your documentary after ripping it?) and also doesn’t account for the fact that copy protected material might be in the public domain.

The question of what you do with the material after breaking the DRM is separate from the issue of breaking the DRM. In the early days of the DMCA, when companies actually tried to enforce the restriction on breaking it, I remember that legal decisions ruled that using the resulting footage for fair use purpose was legal, but breaking CSS wasn’t.

So theoretically you could be taken to court for breaking DRM, but the copy you made and distributed would be perfectly legal. God, copyright law sucks. In practice, I don’t think companies have gone to court over breaking disk DRM since the early days of HDDVD.

If you want a fun, legally dubious way around this, you could have a friend rip a copy in a foreign country and send you only the public domain content. Or torrent the movie as long as it didn’t come with any copyrighted bonus material or soundtracks.

Star Trek: The Motion Picture - Director’s Edition HD Recreation
Duel (1971) - The Hybrid Cut
The Phantom of the Opera - 1925 Version Reconstruction - Rare Scores Collection

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I’ve wondered about how the dmca stuff works with public domain material. Although, I don’t know of too much enforcement beyond takedown notices.

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It does provide little incentive for companies to spend the money on preserving or restoring old films.

Dr. M

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What’s with https://www.copyright.gov/title17/92chap1.html#104a ?

So, a restoration may have a different copyright status than the orlriginal work, if I understand that correctly.
Also the copyright law seems to have some hints that copyrights in other countries may also apply in US territories. So, it may also be possible that the restoration also work is protected die to the chain: protection in original country => protection in the US…

"I kill Gandalf." - Igor, Dork Tower

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That refers to re-copyrighting foreign works that were in the public domain in the United States but were protected by copyright in the country they were created in (restoring a copyright). http://www.publicdomainsherpa.com/copyright-restoration.html
It’s not related to art restoration.

Star Trek: The Motion Picture - Director’s Edition HD Recreation
Duel (1971) - The Hybrid Cut
The Phantom of the Opera - 1925 Version Reconstruction - Rare Scores Collection