Using footage from public domain film

[Greg Quinn]

Hi;
I'm currently working on a documentary and would like to use footage in it from a movie that is currently classified as "public domain", and it can be downloaded from a bunch of public domain web sites. Are there any legal gotchas with doing this, without going further to get permission?
Thanks
Greg

[Jon Fairhurst]

If you ask me the problem is the lack of a paper trail. It's impossible to prove a negative. (What? Ask everybody on the planet if they own it?)

That said, It's a Wonderful Life gained popularity because it fell into the public domain and PBS stations started showing it each December. Apparently, there was a period of time when if you didn't apply for renewal of copyright, you lost it. That's what happened with the Capra film.

So, if you find stuff from that "required renewal" period that people claim is in the public domain, the odds are good that it's usable. Material outside of those years is virtually never in the PD.

The one situation where you are entirely safe is if the material is from the US government. US govt. material, if not confidential, never falls under copyright. It belongs to "We The People" (tm).

That said, I'm not a lawyer and I don't offer legal advise. ;)

[Bill Mecca]

The way I understand it, from searching NAIL a while back ,there is one caveat when using US Gov't produced films. While that government cannot copyright that film, the film may contain copyright protected material,for which you would have to find the copyright owner and gain the rights.

[Greg Quinn]

John, thanks for your opinion on this - I too remember everyone and their uncle showing "It's a wonderful Life" on their stations, and then suddenly it got restricted again - there's probably a story around that (i.e. maybe the former copyright holders contested that it was in the public domain).

[EDIT]
OK, just looked up the info on IAWL, and it turns out that although many folks considered it in the public domain, a supreme court case supported that it was a derivative work from something whose copyright was kept up, and so it's no longer "publicly" usable.

[Jon Fairhurst]

Originally Posted by Greg Quinn

...it turns out that although many folks considered it in the public domain, a supreme court case supported that it was a derivative work from something whose copyright was kept up, and so it's no longer "publicly" usable.

And that's exactly the risk. If there's no paper trail, there's nobody who will take responsibility but you.

On the other hand, if somebody signs a contract allowing you to use some material - and stating that they own the full rights - then if another somebody comes along later claiming rights, you have at least some protection. You can blame the person/entity who signed the rights over to you.

You could still get sued for damages, but you could then sue the person who improperly signed the rights to you, claiming you were defrauded.

Maybe the most important point is that you can hold up the contract and show that you were acting responsibly and in good faith to the very best of your abilities. Anything that helps us avoid lawyers and court cases is good!

And Bill Mecca makes a great point. Are whatever specific government works that you might want to use really unencumbered?

It's best to have a full paper trail going all the way back to location and individual performance release forms.

[Peter Rhalter]

Among other things, you should make sure that not only the film is in the public domain, but also the underlying script and any music and lyrics that are used. If there is a celebrity involved, it is possible that their estate could make a claim for publicity rights.

As far as NAIL goes, while it is useful it only goes back to 1978 – not far enough to definitively determine that an older work is in the public domain. If the original work was renewed in the 60's or 70's it could have been granted an automatic extension when the copyright law was revised.

You should certainly consider running your intended use past an Intellectual Property attorney.

Best wishes,
Peter
______________________
http://www.parkfilms.com

[Peter Rhalter]

By the way, a signed contract granting you rights to use some footage, even one that includes an indemnification clause, is worthless if you aren't willing (or able) to put up a $25,000 retainer to have an attorney attempt to enforce the contract. That hurdle may not mean much to a studio, but it can be a serious issue for an indie project.

Best wishes,
Peter
______________________
http://www.parkfilms.com

[John Vincent]

With regards to IT'S A WONDERFUL LIFE, the story of how the copyright was "gotten back" is a long and complicated one. The short story is that there was a snafu in 1974 and the movie wasn't renewed... Thus the belief that it was public domain.

But later, the company owning the "rights" reasserted their claims on the film. These claims were based partly on the fact that the music was still copywriten, and that the film was an adaption of a book (which was also still under copyright). Eventually they were able to re-assume the rights to the film.

It's interesting to note that no one was sued for infringement, but rather told to cease and desist.

In terms of other works, virtually every piece of music ever made has got some claim on it - at least that's my experence. Some of these claims are faulty, but be aware of the copywritten music aspect of these films.

One relatively cheap way to get old footage is too "buy" it from a stock footage company. They will generally gaurantee that they own the rights (or that it is indeed public domain), thus negating any posible suit against you. Must places are actaully fairly reasonable. Hope this helps...
john
evilgeniusentertainment.com

[Jon Fairhurst]

Good point about music. There are many separable rights when it comes to music (publishing, performance, synchronization with video/film, mechanical, derivative works...) Often the composer grants limited rights, and collects royalties for each performance or broadcast. Entities such as ASCAP and BMI monitor performances/broadcasts and manage the royalty process on behalf of the composer.

Here's a link to an article written by somebody who knows much more of the subject than do I: http://www.invisiondigital.com/inter...quisition.html

[John Vincent]

Very nice article. Well worth the couple of minutes to read :)

john
evilgeniusentertainment.com