Fox Sues Over Reuse Of Public-Domain Documentary

leabre writes " Yahoo! Intellectual Property News is reporting that a small video distributer is being sued (U.S. Supreme Court) over reusing a work (WWII documentary) whose copyright had expired in the 70s, without giving credit to 20th Century Fox on the now public-domain work. What's more, Fox wants the courts to expand the copyright (which it let fall into the public domain more than 20 years ago) so they can recover damages from the distributer... " Read on for more (including several links) about this case. favorite quote: 'Justice Sandra Day O'Connor told Cendali that her client let the copyright lapse for the documentary, in the 1970s, and now wants the court to expand copyright protection so it can recover damages from Dastar. "The defense replies 'It was in the public domain,' O'Connor said. 'Of course they had a right to copy it.'" The outcome of this should be watched closely as it has the potential to further distort our fair use rights. There are more links on EFF , Dept. of Justice, and the Supreme court filing (appeal)[pdf]."

Comments

3. Profit!

[orthogonal]

In other news, thanks to everybody using that code I released to the public domain.

Suckers!!!

Now that it's deeply embedded in your projects, All Your Base Are Belong To Me!

Yours sincerely,
Richard Stallman

Re:3. Profit!

[macdaddy357]

This film was in the public domain, and the edit of it was indeed produced by Dastar. They can put their names on it, but so can anyone. Disney takes fairy tales and legends from the public domain, and puts their names on them without giving credit to Hans Christain Anderson, The Brothers Grimm, or their other sources. How is this any different. The supreme court needs to tell fox F*** you, and the horse you rode in on, but they probably won't Fox is a corporate giant who can grease palms and get their way, just like Disney, and Dastar isn't.

Re:3. Profit!

[Prior Restraint]

Is copyright something you 'renew'?

It used to be, prior to 1976. The copyright laws used to be that copyright could only be granted to items you registered, and there were two terms. When the first one was about to expire, you could apply for an extension, which was pretty much always granted. It basically was a way to make sure you actually cared enough about exploiting a work to bother renewing it. Nowadays, there isn't a renewal term.

Typical disclaimers: IANAL, this only applies to U.S. copyright law, yada yada yada.

Interesting

[leviramsey]

According to the article, the Bush administration (presumably Attorney-General Ashcroft) supports Dastar, the company being sued by Fox. Probably means that the Justice Department has filed an amicus brief saying (in legalese), "Fox is out of their minds if they think this illegal".

Re:Interesting

[uncoveror]

Actually, Rupert Murdoch's networks in the US, Austrailia, and everywhere they operate are pushing right wing politics. Most people support this war because TV told them to. The media can make most people believe anything. They say they are just giving the public what they want, but do so only after telling the public what to want. I wonder, though if Fox will keep Bill O'Reilly, now that he has pulled a Trent Lott.

Mixed feelings

[FunkyRat]

I just read the Yahoo! News! article! and while I am a stalwart advocate for a strong and vibrant public commons, the company that used Fox's original video footage (and audio too I suppose, from the way the article reads) did something that is really sleazy.

Basically, for those who haven't read the article, this small startup video company takes an 8 hour long documentary based on Eisenhower's memoirs, cuts an hour of footage, and adds a half hour of (the article says new, but considering the way this company operates, probablly also recycled) footage then retitles it with an amazingly similar title and dumps it into discount stores' cheap video bins at a fraction of the cost the original documentary sells for.

Was it public domain? Yes. I would defend them on their right to use the footage. Was it ethical? No. I don't beleive so. They were using the work of a whole host of other people -- filmographers, recording engineers, writers, etc. -- to gain a cheap entry into the business. This is the equivalent of taking a novel by, say, Charles Dickens, editing it and perhaps adding another chapter, changing the title and claiming it as a new novel written by yourself. Really sleazy, IMHO.

Still... in no way should Fox be given another copyright on this material. It's in the public domain, and Fox allowed it to enter the public domain and that's where it should stay.

Re:Mixed feelings

[Big Sean O]

This is the equivalent of taking a novel by, say, Charles Dickens, editing it and perhaps adding another chapter, changing the title and claiming it as a new novel written by yourself. Really sleazy, IMHO.

Ever see the broadway show The Mystery of Edwin Drood? Thing is, once it's in the PD, you can do exactly that.

Now, taking a novel by Robert Louis Stevenson and setting it in Space, now THAT's sleazy...

Re:Mixed feelings

[dfgdfgdfg]

this small startup video company takes an 8 hour long documentary based on Eisenhower's memoirs, cuts an hour of footage, and adds a half hour of (the article says new, but considering the way this company operates, probablly also recycled) footage then retitles it with an amazingly similar title and dumps it into discount stores' cheap video bins at a fraction of the cost the original documentary sells for.

If they claim on the box of the video that they where the authors of the whole film, shouldn't Fox be able to accuse them of libel? Since they sell a commercial product, that should be possible whithout invoking copyright law. I think it has happened before that publishers had to change passages of books after receiving complaints that what was presented as fact (e.g. in a biography) was false.

They let it expire, and now they complain?

[Daphnee Ewald]

The content in question was created in the last 40s/early 50s. As anyone following recent copyright law and the Eldrich case should realize, anything from that time had the potential to be copyrighted for a few more decades without incident. However the laws that existed during that period required that you could extend your copyright a given number of times. Fox did not file that paperwork.

The content fell into public domain, clear and simple. It's available for anyone to do anything with it that they please, and now they're crying foul.

I think the fact that they didn't file for copyright extension should get this thrown out instantly. These guys have huge amounts of copyrighted works they own, and they are constantly extending their legally available copyright for the rest of it. When they decide not to file, it's because they think the content is no longer exploitable, so they don't bother.

In this case they were proven wrong - Dastar was able to use it in an appropriate way, and now Fox, who had abandoned it, says it's theirs? Come on, make up your minds.

Here's the history of the movie - judge for yourself if you think they have the moral high ground here:

In 1948, three and a half years after the German surrender at Reims, General Dwight D. Eisenhower completed Crusade in Europe (Crusade), his written account of the allied campaign in Europe during World War II. Doubleday published Crusade and registered it with the Copyright Office in 1948. Pet. App. 9a. Doubleday granted the exclusive television rights in the book to an affiliate of respondent Twentieth Century Fox Film Corporation (Fox). In 1949, Fox made a television series based on Crusade, and registered the series with the Copyright Office. Id. at 8a-10a.1 In 1975, Doubleday renewed the copyright on the book as the "proprietor of copyright in a work made for hire." Id. at 9a. Fox, however, did not renew the copyright on the Crusade television series, Br. in Opp. 20-21 n.4, and that copyright expired in 1977.2

Re:They let it expire, and now they complain?

[JimDabell]

I think the fact that they didn't file for copyright extension should get this thrown out instantly.

I can think of two conspiracy theories:

1. Companies can now point to this as evidence that copyright extensions should be automatic, rather than having to register for them.
2. Any successful legal challenge would effectively destroy the concept of public domain. Kinda like the ultimate copyright extension.

Re:They let it expire, and now they complain?

[Danse]

1. You don't need to file for an extension anymore. Congress takes care of that for you, every 20 years.

2. The public domain is effectively dead at this point. Starting in 1998 there will be a 20-year period where no copyrights will expire. If congress decides to extend the term again (and since when have they ever been able to say no to Mickey?), then that drought will continue. The public domain will not grow anymore. The copyright industry is winning the war. The public is losing, badly.

If these guys win....

[OwnerOfWhinyCat]

It will be because judges can't read, or have been bought. I know Jack Valenti is out their trying to convince the world that we just mad up fair use:
JV: What is fair use? Fair use is not a law. There's nothing in law.

Apparently he hasn't read Title 17 down to section 107. The section titled:

Limitations on exclusive rights: Fair use

But any one who can read that far would also hit [Title 17] section 104 which contains:

(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELI- ANCE PARTY.--As against any party who is not a reliance party, the remedies pro- vided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration.[emphasis mine]

Makes it pretty clear that even if Fox got their copyright restored, that damages for acts prior to that time are clearly unavailable.

I for one hope they get their bottoms spanked in court for this.

I cannot believe this!

[Elpacoloco]

Fox does not have a case here.

The material fell out of copyright and is now public domain and they're still claiming rights to it?

Hold on, I gotta go sue the supermarket to recover the money I spent there -- because hey, it *USED* to be mine....

Actually, this could be a good thing

[fidget42]

If Fox wins this, then the estate of Rudyard Kipling can sue Disney for their Jungle Book movies, or the estate of Robert Louis Stevenson can sue over the various versions of Treasure Island. Both of these were in the public domain when Disney made thier movies so if works can be brought back out of the public domain it could spell the end of some major corporations.

That's the way

[inerte]

That it's suppose to work. If we consider "can't use because it's the labor of someone else", goodbye public domain.

It is not only a right, it is a Good Thing (tm). It expands our culture.

Dastar's derivative and other PD derivatives.

[jbn-o]

Was it ethical? No. I don't beleive so. They were using the work of a whole host of other people -- filmographers, recording engineers, writers, etc. -- to gain a cheap entry into the business. This is the equivalent of taking a novel by, say, Charles Dickens, editing it and perhaps adding another chapter, changing the title and claiming it as a new novel written by yourself. Really sleazy, IMHO.

I disagree. I don't think it's sleazy at all for three reasons:

1. When a work enters the public domain, you should be free do almost anything you want with the work, commercial distribution included (I mention this because Fox is making an issue of the amount of money Dastar spent versus how much they made on their derivative). Fox should have known what choosing to forgo their copyright powers on "Crusade in Europe" would entail. Fox bringing up how much money Dastar made with their derivative suggests to me Fox doesn't think it had enough time to make money from this documentary or that Fox wishes it could take the money Dastar made with "Campaigns in Europe".
2. Dastar is putting their name on "Campaigns in Europe" so anyone, as Justice Souter said, "can go to Dastar and raise the devil -- they know exactly who to blame." (a salient point you did not mention in your summary).
3. More generally, we all use published expressions made somewhere else to make new published expressions. There really are no new ideas under the sun.

I would not have guessed that anyone on /. would object to distributing a labeled derivative of a work in the public domain.

But I look forward to seeing what new limitations on deriving new works from works in the public domain the SCOTUS will impose on us. The way I see it, this case is only a copyright case in that it has the chance to severely curtail our freedoms with PD works.

Referring to your comment about Charles Dickens' works: I wonder how much money is Dickens' estate is out from all the productions of his stories that are in the PD? Society generally doesn't think it's bad if Masterpiece Theatre, say, decides to air a new movie based on some Dickens work (copying even the dialogue and character names) without prepending "Charles Dickens'" to the name of the movie. Similarly, lots of people make new works based on Shakespeare's stories and characters without explicitly acknowledging where the story or characters come from. Welcome to the PD.

I disagree

[moc.tfosorcimgllib]

This is the equivalent of taking a novel by, say, Charles Dickens, editing it and perhaps adding another chapter, changing the title and claiming it as a new novel written by yourself.

I would say it's more like taking Charles Dickens, rewriting the most common of introductions, then reselling it for a fraction of the cost of a new copy.
Something that Barnes&Nobles does all the time with classic novels.

Statement of the case

[angle_slam]

The Yahoo article is very confusing and doesn't give an accurate summary of the case. The title of the Slashdot article isn't accurate either, as Fox isn't suing, they sued a long time ago: the case finally made it to the U.S. Supreme Court, where it was argued on April 2, 2003, with a decision to be expected by late June 2003. The case isn't quite a copyright case, it is a trademark case, with Fox claiming that Dastar is passing the video off as it's own. According to Dastar, these are the questions to be answered by the Supreme Court:

1. Does the Lanham Act protect creative works from uncredited copying, even without a likelihood of consumer confusion?

2. May a court applying the Lanham Act award twice the defendant's profits for purely deterrent purposes?

Here is the Statement of the Case, telling the facts, from the perspective of Dastar:

In 1948, General Eisenhower completed his memoirs of World War II. Pet. App. C at 42a-43a. The publisher, Doubleday, granted exclusive television rights in the memoirs to Twentieth Century Fox, which in turn arranged for Time Inc. to produce a TV series based on the book. Id. at 9a. The TV series, entitled Crusade in Europe, combined a soundtrack based on the book with film footage from the U.S. Army, Navy, and Coast Guard, the British Ministry of Information and War Office, the National Film Board of Canada, and unidentified "Newsreel Pool Cameramen." Id. at 10a, 13a; S.App. 23.

When the time came to renew its copyright in the TV series in the 1970s, Fox failed to do so. Pet. App. C at 49a. Doubleday did renew the book's copyright in its own name, claiming for the first time that General Eisenhower composed his memoirs as a work for hire. Id. at 43a.

By 1988, videotapes had swept the American market, and it was evident that Fox's failure to renew the TV series copyright was a blunder. Fox's cure was to reacquire the television rights in the book - now including the right to produce a videotape. Pet. App. B at 10a. Fox granted SFM Entertainment the right to act as sales agent and distributor of the videotape series. Id. SFM spent $75,000 to locate, restore, and put the TV series on videotape. Id. at 11a. SFM gave New Line Home Video a distribution license for the videotapes. Id.

In 1995, Dastar decided to expand its music business to videotapes. Id. at 12a. Dastar learned that the 1948 TV series was in the public domain, purchased a copy commercially, and copied large parts of the series to make its own videotape series, entitled Campaigns in Europe. Id. at 12a. The court found that Dastar spent over $90,000 on its version. Id. at 19a-20a. Dastar sold the seven-tape boxed set for $25 a set - substantially less than respondents' version. Id. at 19a. Dastar copied from the original TV series, as opposed to the New Line video set. Pet. App. B at 12a-13a; Pet. App. C at 45a.

Dastar's version was a bit more than half as long as the television series, and nearly an hour shorter than the New Line videocassettes. Pet. App. B at 13a. Dastar's product contained about thirty minutes of new footage, including a new narrated opening title sequence and new narrated chapter heading sequences. Dastar also substantially modified the order of the footage it selected from the television series. 9th Cir. Excerpts of Record 1876-78, 1665 ("ER"); Pet. App. B at 13a, 15a-16a. It created entirely new packaging and a new title. Dastar's credits listed only Dastar and those of its staff who actually produced its videos; they did not mention Fox, New Line, or SFM. Pet. App. B at 18a.

Fox, SFM, and New Line filed a lawsuit charging violations of the Copyright Act, alleging infringement of the copyright in General Eisenhower's book (not the expired copyright in the television series).1 In an amended complaint, they added a claim for violation of the Lanham Act, 15 U.S.C. 1125(a)(1) (2000), based on the inclusion of Dastar and its personnel in the credits and the failure to mention Fox and the other res

It's a Wonderful Life

[L-Train8]

This happened to the Frank Capra movie It's a Wonderful Life. In the 70's, Republic Pictures let the copyright on the movie lapse. Because of this, lots of TV stations started showing the movie, because they didn't have to pay to do so, like with most movies. It gradually developed quite a following and became a holiday tradition for a lot of people.

Ted Turner colorized the movie in the 80's, during the colorization fad, and copyrighted the colorized version, believe it or not.

Then, in the early 90's, Republic saw a chance to get paid. The Supreme Court had made some interesting rulings regarding the derivative nature of movies. They are derived from screenplays or books, and if you have a copyright to the screenplay or book, then you have some rights to derivative works, whether the copyright on the derivative works has lapsed or not. So Republic had the copyrights to the screenplay and the original score of the movie, and used that to re-assert copyright over the movie. Technically, they don't have copyright to the movie, and someone could take scenes from it and use it to tell a different story with different music.

Here's a long explanation from a movie industry law firm: http://www.film-center.com/canishow.html .

It seems that Fox is trying to use the copyright of the book or screenplay to re-assert the copyright on the movie. But it also seems that Dastar re-cut the footage so it doesn't follow the book so closely, so it should be exempt from the derivate copyright argument. If they lose, it will be a severe increase in copyright protection for derivative works.