A Copyright Term Case Study - Exclusive Rights in a Film from 1906?

More than once in my career, I've had clients ask me to clear rights in works that are hundreds of years old.  I've responded by noting that these works are in the public domain, so can be freely used without a license.  This outcome is a small victory for my clients—it's always nice to save them a bit of money in licensing and legal fees—but the requests themselves reflect a common misconception about the nature of copyright. 

This photo from the days following the 1906 earthquake in San Francisco, like all works dating from that year, is in the public domain.

I see it all the time, including most recently in the context of the newly discovered film footage from the aftermath of the 1906 earthquake in San Francisco.  You might have caught the story on NPR, or read about it in the New York Times.  It's really fascinating, so it's worth looking into if you haven't.  In short, 112 years ago, a pair of filmmakers known as the Miles Brothers shot about nine minutes' worth of footage while traveling down Market Street in San Francisco just days after a devastating earthquake had ravaged the city.  The footage was thought lost until recently, and the revelation that that isn't the case has a lot of people (including myself) eager to take a look.  For now, however, most of us are out of luck.  The only people who have actually been able to see the film are those who snagged a ticket to one of the sold out performances in San Francisco theaters.  The news coverage concerning the footage takes this fact in stride, never thinking twice about the discoverers' right to restrict access in this way.

The current copyright law in the United States, which was enacted in 1976 and went into effect in 1978, offers copyright owners certain exclusive rights until 70 years after the death of the works' "authors" (ignoring the separate terms for works made for hire and other nuances not relevant here).  This term is far longer than the one under the predecessor Copyright Act, which dated to 1909 and offered copyright owners just 56 years of exclusive rights.  Neither of these laws impacted the copyright in a film shot in 1906, however, which was instead governed by a law enacted all the way back in 1790.  As amended in 1831, that law provided a maximum of just 42 years of copyright protection.  When the term of copyright expires, works pass to the public domain, meaning neither authors nor anyone else can exclude people from copying, disseminating, altering, or otherwise using them however they want.

By any measure, assuming it even qualified for copyright protection in the first place, the Miles Brothers' film is squarely in the public domain under the law, and has been for more than half a century.  Nevertheless, access and, apparently, the ability to re-record the film via cell phone cameras and post it online have been seriously restricted, which is tantamount to an assertion of copyright in it.  This amounts to a circumvention of the time limits to the term of copyright, which are mandated by the Constitution itself.  That is, the Constitution allows Congress "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  I understand there's a possibility at least some of the Miles Brothers' film may be put online some time this summer, but that hardly feels good enough when the work is in demand, is sitting in a digitized form on someone's computer somewhere, and has been in the public domain for decades.  

You might be thinking about the Mona Lisa, for example, another work that is clearly in the public domain, and wondering what's so bad about charging people admission or otherwise restricting access to a work just because it's outside of the term of its copyright.  After all, the Louvre isn't cheap.  The distinction has to do with the difference between the exercise of rights in a physical embodiment of a work and in the work's "intellectual" manifestation.  The Louvre can charge admission to those who want to see the original canvas, just like those in possession of the actual, original Miles Brothers' film reels can restrict access to them.  Neither the Louvre nor anyone else can prevent you from posting a copy of the Mona Lisa on your website, however.  In fact:

See?

It's frustrating to have access to (or the ability to make) mere copies of a public domain work restricted, and even more frustrating that people don't seem to mind.  I fear that the very notion of the public domain is slipping away from our popular consciousness, which can lead content creators to incur unnecessary licensing costs and legal fees, or even worse, prevent them from using their preferred means of creative expression altogether.  If you're in this group, I encourage you to think twice, and maybe even consult an experienced lawyer, before seeking a knee jerk clearance out of a feeling of legal necessity.

If you have questions about your use of a work that you think may be in the public domain, please contact Eric to schedule a free consultation.