Criterion and Public Domain Films

News on Criterion and Janus Films.
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LightBulbFilm
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#51 Post by LightBulbFilm » Thu Dec 15, 2005 11:40 pm

But if it was purchased in the 80s why Did they have MGM DVD releases... I own the 2001 version.... With a nice booklet I might add.

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souvenir
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#52 Post by souvenir » Fri Dec 16, 2005 12:05 am

jedgeco wrote:Yes, I assumed that CC's restoration work would constitute a signficant change to the image that would be copyrightable, but I could be wrong about that. Not to get too geeky, but I was thinking of Justice Stevens's dissent in the recent case challenging the Copyright Extension Act where he noted "And, of course, any original expression in the restoration and preservation of movies will receive new copyright protection." But if others are ripping off CC's transfers, then some other courts might have found differently.
This is a good point, except that Justice Stevens is not talking about new transfers I don't think. Immediately after the sentence you quoted, he has a footnote that reads
Justice Stevens wrote:Indeed, the Lodging of the Motion Picture Association of America, Inc., as Amicus Curiae illustrates the significant creative work involved in releasing these classics. The Casablanca Digital Video Disc (DVD) contains a "documentary You Must Remember This, hosted by Lauren Bacall and featuring recently unearthed outtakes" and an "all-new introduction by Lauren Bacall." Disc cover text. Similarly, the Citizen Kane DVD includes "two feature-length audio commentaries: one by film critic Roger Ebert and the other by director/Welles biographer Peter Bogdanovich" and a "gallery of storyboards, rare photos, alternate ad campaigns, studio correspondence, call sheets and other memorabilia" in addition to a 2-hour documentary. Disc cover text.
This would lead me to believe that he is referring to supplemental materials about the films and not the films or transfers themselves. On a side note, how cool is it to see a Supreme Court justice footnoting DVD special features.

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Andre Jurieu
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#53 Post by Andre Jurieu » Fri Dec 16, 2005 12:58 am

LightBulbFilm wrote:But if it was purchased in the 80s why Did they have MGM DVD releases...
Turner might have purchased the MGM library in the 80s, but I believe the home-video rights for these films did not pass to Warner until the AOL Time Warner merger, which occurred around 2000.

MGM was in financial trouble for some time and sold off their library to stay solvent. Whatever the details were, MGM did sell off the rights to their library and Warner Bros. acquired these rights. It was never a question of MGM deciding not to re-new the rights to these films.

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#54 Post by LightBulbFilm » Sun Mar 04, 2007 6:31 pm

So I'm sitting here thinking about all the important films that are out there and public domain and wondering why Criterion hasn't attempted to touch them. I mean Akira Kurosawa's Sanshiro Sugata is now public domain, but it seems Criterion has passed it up. I believe Paisan by Roberto Rossellini is public domain, and Criterion has passed it up, along with The Gold of Naples by Vittorio De Sica. The Man With the Golden Arm would be a good candidate as well... There are tons more, yet Criterion seems to be struggling to get rights to many other films, which is great... But why not put out some decent editions of films that people just treat like third rate movies due to things like "The Wal*Mart $1 DVD bin"?

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#55 Post by starmanof51 » Sun Mar 04, 2007 7:14 pm

I would think in most cases lack of access (or reasonably priced access) to adequate source materials would account for it in more cases than not. For some titles it may be a matter of time - I wouldn't be so certain they won't yet do Gold of Naples, or Sanshiro Sugata for that matter.

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zedz
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#56 Post by zedz » Sun Mar 04, 2007 8:42 pm

I agree. I think the main factor with most of these films is access to good materials, not rights. Criterion has tackled PD material in the past with great results (Carnival of Souls), but in that case they had access to the best surviving materials.

It would indeed be fantastic if they could produce definitive editions of films that have languished in PD hell for years, such as Mann / Alton films noirs, One Eyed Jacks or The Shooting, but it would all depend on finding the right elements.

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bunuelian
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#57 Post by bunuelian » Sun Mar 04, 2007 11:04 pm

I'm working on a public domain study right now. An interesting tidbit gleaned from the U.S. Copyright Office annual reports is that about 100,000 films were registered between 1923 and 1963 (the time during which copyright owners needed to renew their copyright registration to continue protection beyond the initial 28 year term). This 100,000 includes everything registered as a motion picture, whether it was a film, tv commercial, cartoon, etc. 100,000 isn't an infinite number, and a project to catalog which films weren't renewed actually wouldn't be all that bad provided enough bodies are thrown at it. I've spent some time at the Library of Congress looking at the records and although they're stupidly inconsistent, it's not an insurmountable task in the era of the laptop computer and the eager pre-law college student willing to work for pennies. All it needs is some deep pockets . . . *cough*Google*cough*

One problem with films is that there can also be "underlying works" that complicate things. For example, if the movie has a song in it that's separately copyrighted, or if it's based on a copyrighted novel, there could be limits on how the film can be exploited. Mickey Mouse is the poster child of copyright extension because characters can themselves have protection. The better online sites about public domain films mention this. It can be extremely difficult to reach a legal level of comfort that could justify an expensive restoration process because underlying works can be hard to pin down.

As already discussed, WTO treaty law took a lot of foreign films out of the public domain if the copyrights were properly restored within the given timeframe. I'd be surprised if most commercially valuable foreign films weren't "reclaimed" under this regime (i.e. Persona though this title keeps coming up as public domain). It's an interesting, if rare, example of WTO rules actually favoring foreign people over American intellectual property owners.

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#58 Post by Cinephrenic » Mon Mar 05, 2007 3:23 pm

Gold of Naples
It is also yet to receive theatrical showing from Rialto.

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#59 Post by kinjitsu » Mon Mar 05, 2007 3:29 pm

Cinephrenic wrote:
Gold of Naples
It is also yet to receive theatrical showing from Rialto.
GOLD OF NAPLES [future release]

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BusterK.
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#60 Post by BusterK. » Thu Mar 08, 2007 12:19 pm

Gordon wrote:I'll just throw this question out there: Which Public Domain films would you like Criterion/Eclipse to release?
I'd love to see gritty 50's Noir like Kansas City confidential or The Big Combo get picked up!
Last edited by BusterK. on Mon Apr 09, 2007 7:59 pm, edited 1 time in total.

patrick
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#61 Post by patrick » Tue Mar 27, 2007 8:41 am

I would personally love to see Criterion release Spider Baby if it's really in the public domain, but after poking around a little bit, I found this info on the official Myspace page for Spider Baby:
A recently finished documentary will be included on a new DVD edition of the film which will feature Hill's preferred, Director's Cut. Besides THE HATCHING OF SPIDER BABY documentary, the disc will also include SPIDER STRAVINSKY - a featurette on SPIDER BABY composer Ronald Stein, THE MERRRYE HOUSE REVISITED - a tour with Jack Hill back to the original SPIDER BABY house used in the film; A massive photo gallery including many rare behind the scenes pictures and advertising art; A new commentary track and more!
Apparently it'll be coming from MPI/Dark Sky sometime this year.

finally
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#62 Post by finally » Mon May 19, 2008 7:50 pm

I am surprised that so many non-public domain titles have come up in this discussion.

Not even Beat the Devil (1953) is on the public domain, although you would not think it.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#63 Post by ianungstad » Wed Mar 24, 2010 11:22 pm

An educated guess:

I noticed on MMM that a number of copies of The Gospel According to St. Matthew have been going out of print. The title has generally been considered to be public domain. Looks like someone has been sending cease and desist letters to companies like Image Entertainment, Legend Films, BCI Eclipse etc.

It certainly looks like either the rights holder or a R1 Company planning on releasing an "official" version with high quality elements has been making their initial move by getting all the PD editions off the market.

Wouldn't surprise me if it's Criterion since they love Pasolini and has been very agressive in terms of licensing as of late.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#64 Post by Cinephrenic » Wed Mar 24, 2010 11:54 pm

There are some masterpieces in the Public Domain, but Criterion doesn't touch them. I wonder why? Does it have to do with prints?

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#65 Post by Tribe » Thu Mar 25, 2010 1:03 am

Cinephrenic wrote:There are some masterpieces in the Public Domain, but Criterion doesn't touch them. I wonder why? Does it have to do with prints?
If something is in the public domain that means its not protected by copyright. As a result the work can be copied freely...that doesn't mean that someone can pirate an independently created transfer, for example, but that's not a copyright issue. If something is public domain that means there are competing copies freely floating around out there...which would eat into any potential profits to be anticipated, not to mention the recovery of initial costs.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#66 Post by Jun-Dai » Thu Mar 25, 2010 1:10 am

Tribe wrote:that doesn't mean that someone can pirate an independently created transfer, for example, but that's not a copyright issue.
It's not? If it's not a copyright issue, then what is it?

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#67 Post by Doctor Sunshine » Thu Mar 25, 2010 1:46 am

Jun-Dai wrote:It's not? If it's not a copyright issue, then what is it?
Ownership. A film can be in the public domain but to get access to a negative or print you're still going to have to pay whoever's holding it. Also, if significant restoration work has been done that can constitute a new creative work with its own copyright.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#68 Post by Tribe » Thu Mar 25, 2010 2:25 am

Doctor Sunshine wrote:
Jun-Dai wrote:It's not? If it's not a copyright issue, then what is it?
Ownership. A film can be in the public domain but to get access to a negative or print you're still going to have to pay whoever's holding it. Also, if significant restoration work has been done that can constitute a new creative work with its own copyright.
I don't profess any special expertise in copyright, but restoration alone isn't going to give rise to a new copyright. Once a work falls into the public domain, it's there forever...anyone can copy the work, modify it, and/or create something derivative from the original work (which may in turn result in the creation of a new copyright in the new derivation). However, I don't believe a restoration, clean up, new transfer would receive copyright protection. After all, a clean up of a print and/or a newly struck transfer while certainly is the result of technical expertise, it isn't the result of the creative process that resulted in the initial copyright protection for the work in the first place.

If that were the case then a studio holding a copyright for a film could, on the eve of the expiration of the copyright, strike up a new transfer and so on in perpetuity and the copyright would never expire. Clearly, that hasn't happened.

That doesn't mean the owner of the restoration doesn't have any legal rights to that restoration or that they can be stolen and freely used and exploited by others. It's just that that legal protection arises from some other area of the law, but not copyright law.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#69 Post by Doctor Sunshine » Thu Mar 25, 2010 3:34 am

I'm no expert either but my understanding is that as long as there's a human making decisions which fulfill the rather tricky (American) legal definition of creativity--even someone digitally removing specs of dust frame by frame--that can then be copyrighted. It doesn't override or affect the original copyright however. For example, with MOC's M making use of Criterion's transfer, they presumably licensed it from both Atlantic-Film S.A. and Criterion as opposed to licensing from the former and compensating the latter for access to their HD master. I'm sure it's a little trickier than what I'm presenting here, with laws and licenses differing from country to country (M's supposed to be public domain in the States but not the UK, no?), but I believe they'd be paying Atlantic-Film for the film and restoration and Criterion for the additional clean up they did. So, basically, getting back to the original question, with Criterion going after the best elements available, PD stuff isn't going to be any cheaper or easier to nail down than anything else.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#70 Post by Tribe » Thu Mar 25, 2010 9:45 am

Doctor Sunshine wrote:I'm no expert either but my understanding is that as long as there's a human making decisions which fulfill the rather tricky (American) legal definition of creativity--even someone digitally removing specs of dust frame by frame--that can then be copyrighted.
I think a similar issue has come up in regard to, for example, colorization when that was something of a fad, or the addition of a different soundtrack. I don't know whether such an issue was ever litigated. But even assuming for the sake of argument that those touches involve some degree of creativity all it would do, at best, is result in a copyright in the newly modified work, not in the original (assuming the original's copyright has indeed lapsed and the original work is in the public domain). Nothing would prevent someone to lawfully acquire an original print and modify it in the same fashion and exploit it for commercial gain.

But the issue of restoration in the sense we've been discussing (as you point out, for example, removing dirt from frames) would appear to be different. I just don't think that would be sufficient to either prevent the work from falling into the public domain or even giving rise to a new copyright in the work. For example, lets say someone had an original 78 of a blues record that was initially released in the 1920s. At this point in time any copyright in the work captured in that 78 record has clearly expired (and lets assume it would have been a valid copyright...because many of those tunes pre-existed the recording by decades and as a result the performer on the recording may not have necessarily created the tune but learned it from someone else...this is the case with many old time country tunes the Carter Family recorded in the 1920s: AP Carter registered copyrights in those songs, but it is now pretty clear that many of those songs predate the Carters and the copyright would have been ineffective). Someone takes the 78 recording and electronically "cleans" it by eliminating the pops, scratches and the like (which is a fairly common thing...Yazoo Records, for one, has issued many anthologies of old blues and country tunes from old 78s). No new copyright results from that "clean up" work. I gotta think that a similar analysis would apply to restoring a film.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#71 Post by Two Cent James » Thu Mar 25, 2010 10:35 am

For a derivative work to be be capable of copyright, it must pass some originality threshold. I don't know if there are cases concerning the originality of restorations, but it seems very possible that a court would uphold the copyright of a restoration. For example, in Maljack Productions, Inc. v. UAV Corp., 964 F. Supp. 1416, 1427 (C.D. Cal. 1997), the court found that a "pan and scan" version of a film in the public domain was a copyrightable derivative work because the process incorporated "virtually an infinite number of possible" displays.

Presumably, a film restoration could also involve an infinite number of possible displays, especially if it is being done by a frame-by-frame process.

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#72 Post by Jun-Dai » Thu Mar 25, 2010 11:37 am

Tribe wrote:If that were the case then a studio holding a copyright for a film could, on the eve of the expiration of the copyright, strike up a new transfer and so on in perpetuity and the copyright would never expire. Clearly, that hasn't happened.
That doesn't quite make sense. The studio, by striking up a new transfer, would not be renewing the copyright on the underlying work, they would just be copyrighting that particular transfer. You might be right that "copyright" is not the term there, but I think it is. So while a studio could issue a new transfer and people wouldn't be able to copy it for copyright (or similar) reasons, that wouldn't prevent them from copying an older transfer/print of the film.

Think of it this way. When a publisher puts out an edition of Beethoven's piano sonatas, you can't copy that. You can copy the underlying music, but you can't copy the edition (i.e., notations added by the editor, typesetting, layout, etc., etc.). I'd expect a film transfer would work the same way.

Of course, on the other side of things, it's been decades since a copyright has expired, and there's a very real possibility that no copyright will ever expire in our lifetime. http://www.techdirt.com/articles/200908 ... 5835.shtml" onclick="window.open(this.href);return false;

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Re: 'Forthcoming' Lists Discussion and Random Speculation Vol.2

#73 Post by Tribe » Thu Mar 25, 2010 12:06 pm

Jun-Dai wrote:
Tribe wrote:If that were the case then a studio holding a copyright for a film could, on the eve of the expiration of the copyright, strike up a new transfer and so on in perpetuity and the copyright would never expire. Clearly, that hasn't happened.
That doesn't quite make sense. The studio, by striking up a new transfer, would not be renewing the copyright on the underlying work, they would just be copyrighting that particular transfer. You might be right that "copyright" is not the term there, but I think it is. So while a studio could issue a new transfer and people wouldn't be able to copy it for copyright (or similar) reasons, that wouldn't prevent them from copying an older transfer/print of the film.
My point is that I'm not entirely certain that a "restoration" of a print entails the degree of "originality" (which as Two Cent James pointed out is the correct term) necessary to obtain a copyright. However, as James also points out there is at least one case that upholds the notion that a "pan and scan" version of a film can be protected by copyright. But that might be different from strictly cleaning up a print and striking a new transfer. Is that restoration "original" enough to warrant copyright protection? I don't see it, but I could be wrong.
Jun-Dai wrote:Think of it this way. When a publisher puts out an edition of Beethoven's piano sonatas, you can't copy that. You can copy the underlying music, but you can't copy the edition (i.e., notations added by the editor, typesetting, layout, etc., etc.). I'd expect a film transfer would work the same way.
The laying out, notations, etc. are themselves "original." You're correct that those elements are protected under copyright.

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Re: Criterion and Public Domain Films

#74 Post by Jun-Dai » Thu Mar 25, 2010 2:27 pm

At this point we're sort of saying the same thing.

In any case, I am curious which reason Criterion's avoidance of public domain films is primarily based on (if any of them):

* Unable to get exclusivity
* Unable to find good elements
* A good opportunity just hasn't come up

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Re: Criterion and Public Domain Films

#75 Post by tojoed » Thu Mar 25, 2010 2:37 pm

I am under the impression that "Night Train to Munich" is in the public domain, at least in the UK. Might that not apply in America?

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