Re: Silent Film Distributors - Duping vs Restoration

From: David P. Hayes
Newsgroups: alt.movies.silent
Date: Wednesday, December 03, 1997 7:19 PM

Michael Gebert <> wrote in article
< gt;, starting with a quote from me:
> > Therefore, Blackhawk might recognize their print had
> > been copied as a result of a tell-tale scratch or from frames missing some
> > emulsion in specific locations, but such unique aspects of a print do not
> > constitute creative expression and therefore cannot be copyrighted
> > separately.
> Apparently, though, you can claim restoration work, no? It seems to me
> that there's a big gray area here that would get settled on a case by case
> basis (for instance, if Raymond Rohauer was copying you, he would
> interpret the law one way, but if you were copying him, he would interpret
> it another, and if you were continuing to sell something of yours that he
> had copied in the meantime., he would interpret it a third way, and if the
> film was lost but it was in his catalog anyway… .)

Raymond Rohauer made a practice of altering the original films in order to secure a new copyright. He would change the titles so that they were in a new lettering style and with minor changes of wording. (In one case, though, he changed "there" to "where" (as I recall; it may have been a similar "change"), and failed to realize that the alteration rendered the dialogue unintelligible. Such changes were called grounds for claiming that new creativity had been expended and that the new prints were protected by separate copyright. Adding a soundtrack to a silent film has long been grounds for claiming a new copyright on a public-domain movie, although it seems understood that if the picture is unchanged, someone else can strip off the soundtrack and legally duplicate the movie.

Restoration is a trickier area. Here, the claim is that painstaking effort goes into making the work look as it originally did--hence, success is achieved when there is NO creativity (except the of overcoming mechanical obstacles). UCLA has registered their restoration of "Becky Sharp," but whether the new copyright would be upheld in court is a different matter.

It may seem an outrage that long hours and exorbitant expenditures would not be rewarded by legally-enforceable exclusivity. I'm not arguing that one way or the other; I'm attempting here merely to communicate what the law says to the best of my understanding. I can tell you that the Supreme Court ruled earlier in this decade that telephone directories were not eligible for copyright because no creativity was involved in what the court saw as a mere compilation of factual information that was readily-accessible to the telephone companies. It was shortly after that ruling that multiple brands of CD-ROM editions of the U.S.'s phone directories began to appear. (Previously PhoneDisc U.S.A. (which since then has been renamed Digital Directory Assistance, or DDA) had the field to themselves). Right now, there are many such CD-ROMs, and can be bought for very low prices at local retailers.

At the time of that ruling, I was working for a distributor of computer databases. In that capacity, I soon thereafter spoke with an executive of one of the major producers of databases, and she told me that the reporting of the Supreme Court decision was correct, that many people in her company were speaking of it often with regards to how it might affect them and the industry as a whole, and that she was aghast. As it happened, she had previously worked in management for a phone company, and she knew that apart from the arguable lack of creativity (the Court was referring to the pages all having the same design, the use of a single typeface throughout the listings, etc.), there was an exhausting amount of work involved. Such had had no (overriding) bearing on the Court when it ruled on how it should interpret the laws passed by Congress.

I trust the readers of this newsgroup will understand that I turned the subject from movies to database because that enabled me to explicate on copyright law that applies also to movies. There are undoubtedly other facts that could be reported on this issue. Anyone?

--David Hayes


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