Walt at Random

Restored copyright? Querulous comments on early Hitchcock

Posted by Walt Crawford on July 6, 2009
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A couple of days ago, on Walt, Even Randomer, I posted a set of desultory reviews of the fourth and final DVD of Alfred Hitchcock: The Legend Begins.

Sidebar: One eccentric feature of this blog used to be the “treadmill movie reviews,” brief reviews of movies from Mill Creek Entertainment’s multidisc packs viewed while I was exercising. I’ve reviewed a little more than 300 movies over several years. In moving to this more august site, I left the reviews behind and am not posting new ones here; that’s one of few things still being posted on Walt, Even Randomer. The treadmill’s gone as well–RFI problems and other reasons–but the movies remain.

You can go to that blog for the reviews, such as they are–and you’ll find a compilation of all four discs in a future Cites & Insights. The reviews aren’t the theme of this post.

Legitimate?

That’s the hook here: Was I watching a legitimate packaged set of old movies or is this set “dodgy”?

A couple of key points up front:

  • I am not a lawyer. I’m interested in copyright and have written about it, but always from a semi-informed layperson’s point of view. Let me say that again: I am not a lawyer. This is not legal advice.
  • Mill Creek Entertainment, successor to TreeLine Films, has been around for a while. The company–a division of Digital1Stop–has a street address. It is possible to contact them. The Hitchcock set’s been for sale for at least two years, through such obscure distributors as Amazon.

Anyway…

When I posted my off-the-cuff reviews for Disc 1, one of my online correspondents from the UK objected strongly–that these movies were not in the public domain and that Mill Creek wasn’t a known licensee. The post came from someone I respect, but I had to edit the comment, as it made legal claims I wasn’t going to get in the middle of.

On the other hand, the post did alert me to something I’d never heard of before: Copyright restoration. Apparently, thanks to the wonders of international treaties, some UK material that was definitely in the public domain within the U.S. (and maybe even in the UK) had copyright restored retroactively–with a clause allowing distributors, who had released the PD material in good faith, to sell out existing stocks for a year after being notified by copyright-holders that the works were now once again protected.

So, well, other than saying “that’s appalling if true”–as it seems to violate not only the spirit of U.S. law but also the Constitutional basis for copyright–I could only fall back on the second point above: The material’s being sold openly by a legitimate company with a known U.S. address; if there’s a problem, it’s up to the copyright-holders to address it.

But wait! There’s more!

More recently, I heard about Golan v. Holder, a case in the U.S. District Court for the District of Colorado, decided on April 3, 2009.

Briefly, the 10th District Court found that the copyright restoration (Section 514 of the Uruguay Round Agreements) was unconstitutional.

Which would appear to put these movies (back?) in the public domain. At least for now. At least in the 10th district.

Subject to appeal, of course. And to possible new Congressional acts–but it’s getting a little tougher for Congress to keep imposing longer and tougher copyright in the assumption that nobody’s looking.

Why the licensees might step back

I don’t believe it should be legitimate to restore copyright in materials that legally, properly fell into the public domain. I believe copyright is too long in the U.S. anyway–and this particular restoration means that materials created by non-U.S. citizens actually have an advantage over U.S. creations, within the U.S. (The act didn’t restore any native-U.S. materials to copyright.) That also seems odd.

But there’s another issue to consider–namely, that for movies, at least, proper license holders with actual access to original materials shouldn’t worry too much about public domain versions. Why?

Because the license holders can offer something the PD vendors can’t: Fully-restored DVDs created from the masters, rather than from whatever prints happen to be available. The movie may be in the public domain, but the masters continue to be the physical property of whoever owns them.

Having watched the Mill Creek set of 18 movies, 2 TV episodes, and 19 trailers (the 19 trailers being one of the most charming aspects), I would think that any true Hitchcock enthusiast would spend the $156 extra to get the “proper” versions of ten of the 18 movies from Criterion, Lions Gate or MGM after spending the $8 for this set. You’d presumably get better print quality, extras and expert commentary. (Not that these prints are all terrible–most of them are actually pretty good.)

Would I pay the extra money? No, because I’ve realized I’m never going to be a great fan of early Hitchcock. But I wouldn’t have paid that money anyway–and at least I’ve been exposed to some interesting flicks I’d have never heard of otherwise.

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Comments

  1. #1 george.w
    July 6, 2009

    It’s high time we started calling restored copyright by its right name: “ZOMBIE COPYRIGHTS!!1!”

    As far as I know, I just now invented that term, and hereby declare it totally copyfree so anyone can use it without attribution.

  2. #2 HP
    July 7, 2009

    I own a fair number of what I call “greymarket” DVDs. These are DVDs of movies where the intellectual content of the film has clearly fallen into public domain, the original creators of said content are all dead, and the DVDs are made from orphaned transfers from the VHS/videodisc era.

    By doing so, I suppose I open myself up to some sort of legal action, if there were a legal actor who felt it worth their time and money. When such films later get a new transfer, and sufficient effort has been put into making the new transfer from archival quality materials and restored using the best technology, I have gladly paid to own the better transfer (e.g., the greymarket DVD of “Blood Red: The Hatchet Murders” from a multi-disc budget set, versus my archival special edition of Dario Argento’s “Profundo Rosso”).

    I recognize that in some squinty sense I may have violated some ill-defined legal principle. But I have done nothing morally wrong, and many things that are morally right.

    Law is not morality; morality is not law. And tort law does not rise nearly to the level of civil law in the moral calculus. Even if, in some abstract sense, you have broken the law, you have done nothing wrong. If some nominal rights owner to an orphaned property wants you to pay, said orphaned rights owner is morally obliged to provide value for money. Given the economics of tort law, I think any such rights owner would be suicidal to take you to court over Hitchcock’s “The Lodger” or “Jamaica Inn.”

    And frankly, too many films and recordings languish, unavailable in any legitimate digital format, because the rights-holder has determined that the audience is not large enough. There’s no way that Hitchcock’s silent films and early soundies could ever cost-justify restoration and sale through legitimate means. They’d never make the investment back. So, despite your lukewarm reviews, you’re actually doing the rights holders a service by keeping these works alive in human memory. If it were up to the rights-holders, these films would be forgotten just on general principle, rather than let slide on a strict interpretation of rights.

    (That said, Hitchcock’s 1927 silent film “The Ring” is completely awesome, and anyone who says otherwise is simply wrong. Also, the early soundie “Rich and Strange” is pretty cool, and well worth watching.)

  3. #3 Walt Crawford
    July 7, 2009

    George: While I think “zombie copyright” is fine name for restored copyrights, it’s not a novel usage–it apparently goes back as far as 1996, when the restoration took place.

    HP: A fine comment, but I’d take issue with a couple of things. For many films made in the U.S. prior to 1976 where copyright was not renewed or was never registered, they’re not “greymarket”–they’re public domain. You haven’t violated any moral or legal principle. (I believe almost all Mill Creek Entertainment DVDs fall into either this area or are TV movies/episodes where the rightsholders don’t see any probable value. And yes, most all are apparently transfers from whatever VHS-level copies they could find.)

    As for those that *are* legitimately under copyright but orphaned or simply off the market, it’s fuzzier.

    Actually, some of Hitchcock’s silents and early soundies apparently were worth restoring–thus the availability of 10 of the 18 films in, presumably, restored form. The Ring and Rich and Strange are both on the $22.50 Lions Gate box set. (My opinions of both, in the Mill Creek versions–which apparently are missing footage–are, shall we say, less enthusiastic than yours, but opinions are like that.)

  4. #4 canlı sohbet
    May 14, 2011

    (That said, Hitchcock’s 1927 silent film “The Ring” is completely awesome, and anyone who says otherwise is simply wrong. Also, the early soundie “Rich and Strange” is pretty cool, and well worth watching.)