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The Almighty Buck Your Rights Online Entertainment

Fox Sues Over Reuse Of Public-Domain Documentary 61

Posted by timothy from the sue-you-sue-anybody dept.
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]."
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Fox Sues Over Reuse Of Public-Domain Documentary More

Fox Sues Over Reuse Of Public-Domain Documentary

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  • 3. Profit! (Score:5, Funny)

    by orthogonal ( 588627 ) on Monday April 14, 2003 @08:02PM (#5732403) Journal
    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! (Score:1, Redundant)

      by AtrN ( 87501 )
      So what RMS code is in the public domain?
      • Actually none, it is copyrighted (unless some is old enough that the copyright has expired).

        Normal copyright means you can't copy and distribute the information without permission from the original copyright owner.

        Public-domain means you can copy and distribute it no matter what.

        The GPL is in-between in that if you follow some rules you can copy and distribute it as though it was public domain. You can also follow normal copyright rules and ask for permission to do anything else with the code (a fact

    • Is it possible to release something to the public domain? From what I understood, copyright was not something that could be given up. One could grant everyone unlimited rights, without restriction, but that's not quite the same as public domain. Anyone know?
      • It sounds like Fox simply didn't renew copyright, thus allowing the video to fall into public domain when the term expired. It would be nice if the article were a little more clear on the issue, but the fact that it is public domain doesn't seem to be a point of contention.
        • Is copyright something you 'renew'?

          There is an implicit copyright in anything you produce and distribute copies of.

          You don't have to 'renew' it in order for it to be copyright. However, copyright only lasts for a specific period of time.

          Ted Turner 'renewed' the copyright on a lot of films by 'colorizing' them, and copyrighting the colorization. Then removing the original prints from the marketplace. However, if you find a copy of the original with lapsed copyright, you can copy it, because it's public

          • Re:3. Profit! (Score:2, Informative)

            by Prior Restraint ( 179698 )

            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

    • Re:3. Profit! (Score:3, Insightful)

      by macdaddy357 ( 582412 )
      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,
    • that code I released to the public domain.

      i++

      -
    • And what software has Stallman released to the Public Domain?

  • Interesting (Score:4, Interesting)

    by leviramsey ( 248057 ) on Monday April 14, 2003 @08:03PM (#5732415) Journal

    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".

    • Bush, Ashcroft et al are on the right side of this issue? Amazing, especially since Fox News is their ministry of propaganda. I think that in the near future, only historians will know what the public domain even was. Here is a piece I wrote [uncoveror.com] when the Eldred vs. Ashcroft case went the wrong way.
      • Amazing, especially since Fox News is their ministry of propaganda.

        How do you figure? Fox is slave to the dollar. They air what attracts eyeballs to their advertisements. They have no loyalty to the current administration. It only seems that way because a vast majority of people in the US agree with the administration's war policy. If that ever changed, Fox would change their tune. Bush (Ashcroft) would be a fool to throw Fox a bone.
        • <I>Fox is slave to the dollar.</i>

          The conservative dollar.

          <i>It only seems that way because a vast majority of people in the US agree with the administration's war policy.</i>

          Snort. The only way you could possibly get a "vast majoraty" is by rigging the poll. i.e. 95% of Americans say they "support our troops" so support is infered for the whole operation.
        • 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. [washingtonpost.com]

  • Mixed feelings (Score:4, Insightful)

    by FunkyRat ( 36011 ) <.moc.liamg. .ta. .taryknuf.> on Monday April 14, 2003 @08:13PM (#5732470) Journal

    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.

    • 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 [imdb.com] sleazy...

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

        Heh -- when I used Dickens in my example I wasn't thinking about Edwin Drood. Still... I see that more as a reinterpretation. Much the same as Dolly Parton [npr.org] covering Stairway to Heaven [npr.org]. Which, while it may be frightening just doesn't strike me as being the same thing as what this company did. However, as I said above, they had the right to do it and this suit should be thrown out.

        Now what's real

    • That's the way (Score:2, Insightful)

      by inerte ( 452992 )
      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. (Score:4, Interesting)

      by jbn-o ( 555068 ) <mail@digitalcitizen.info> on Tuesday April 15, 2003 @05:00AM (#5734295) Homepage
      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.

    • Public domain is exactly that: you can very well do whatever you fscking like with it!

      That is the whole bloddy stupid fscking point!
    • They were using the work of a whole host of other people -- filmographers, recording engineers, writers, etc

      True. However, almost all these people would be dead by now. And even those still alive would be very unlikely to have seen one cent from Fox (which is still selling its own version, apparently, according to the story) considering the way movie residuals worked then -- pretty sure production people would get nothing beyond their original salary.

      This is the equivalent of taking a novel by, say, C

    • I disagree (Score:2, Informative)

      by moc.tfosorcimgllib ( 602636 )
      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.

    • Re:Mixed feelings (Score:2, Interesting)

      by dfgdfgdfg ( 577386 )
      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

  • They let it expire, and now they complain? (Score:5, Insightful)

    by Daphnee Ewald ( 663971 ) on Monday April 14, 2003 @08:17PM (#5732499)
    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? (Score:4, Insightful)

      by JimDabell ( 42870 ) on Monday April 14, 2003 @09:09PM (#5732734) Homepage

      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.
    • Sounds as though while Fox may have no grounds for action Doubleday may very well have and I'd love to see them (and perhaps Eisenhower's descendants as well) burn Dastar a new one, just so that they get the punishment they deserve for not giving credit where credit is due (even if monetary payment wasn't). This isn't so much copyright infringement so much as it is plain old fashioned plagarism.

      • This isn't so much copyright infringement so much as it is plain old fashioned plagarism.

        Plagiarism is a form of copyright infringement. In any event, the whole point you seem to be missing is that without a copyright on the work, it is free to be used by any person for any reason. That's the whole point of letting copyrights expire.

        • So would it be ethical for me to start publishing out of copyright works and either not credit the original creator or, even worse to my way of thinking, claim that I am the creator of the work? Would it be okay for me to find an out of copyright dissertation and submit it as my own work to get a doctorate degree?
    • Just pointing out that what Fox was complaining of was not violation of copyright per-se, but the violation of author's rights. If Disney re-makes the Jungle Book after the copyright has expired, they are engaging in happy capitalism. If Disney re-brands the Jungle book with their name as the author, they are engaging in deceptive practices to mislead the public into thinking that they are the author. They are committing plagiarism.

      What Fox is upset about, is that this documentary is 88% Fox material, w
    • 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, Rep

  • If these guys win.... (Score:5, Informative)

    by OwnerOfWhinyCat ( 654476 ) on Monday April 14, 2003 @08:27PM (#5732545)
    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. [hpronline.org]

    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 [copyright.gov]] 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.
    • JV: What is fair use? Fair use is not a law. There's nothing in law.

      More interesting quotes from that interview:

      Right now, any professor can show a complete movie in his classroom without paying a dime--that's fair use. What is not fair use is making a copy of an encrypted DVD, because once you're able to break the encryption, you've undermined the encryption itself.

      [Question]: Even if breaking the encryption is for a legitimate purpose, to make a back-up copy?

      JV: But you've already got a DVD. It lasts

  • 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 (Score:3, Interesting)

    by fidget42 ( 538823 ) on Monday April 14, 2003 @10:03PM (#5732978)
    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.
  • Fox had better hope if it wins that it never used any public domain works in any of it's creations... Once word gets out that you can post-copyright pulic works and collect damages, people all over the world will be looking to copyight everything that they can even margially claim owndership of and bleed these big media corporations dry.

  • Statement of the case (Score:3, Informative)

    by angle_slam ( 623817 ) on Tuesday April 15, 2003 @02:53PM (#5738004)
    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

    • (please mod parent up)

      By mistaking this for a copyright case, many are ignoring the most dangerous part of Fox's claim: trademarks don't expire as long as they're defended.

      Another poster [slashdot.org] pointed out that there won't be any new works entering the public domain for a while (2018).

      Even then there may be problems. Suppose the Harry Potter books enter the public domain in 2123. If "Harry Potter" and "Hogwarts" haven't become generic terms, can AOL/T-W come after you if you publish your own edition or make

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