Re: copyright question

Jeffrey Clark (clarkjc@jmu.edu)
Fri, 28 Feb 2003 13:48:19 -0800 (PST)

I'm right with Gary on this one. Unless contract provisions intervene,
we've got rights in libraries that ought to be exercised.

And even if contract provisions intervene: if the case involves a "life of
print" lease for which no rights holder can be found to contact anymore
(after due diligence)... does this make the case stronger for treating the
work under copyright law? Maybe we need a test case... unless a legal
scholar knows the answer.

Jeff

--On Friday, February 28, 2003 1:23 PM -0800 Gary Handman
<ghandman@library.berkeley.edu> wrote:

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>
> Nuts, maybe...but i think we've been cowed by copyright paranoia and
> bullied by media content owners for so long that we (that's we, as in
> librarians) tend to automatically roll over and play dead or to throw
> away whatever slim fair use rights we do have. If I sign a commercial
> contract that says "Life of film" and if my film dies an ignominious
> death, it's a matter of my adhering to contract law, not copyright
> (which allows me to make a preservation copy under certain conditions).
> In such a case, I'll adhere to my contract obligations. If, on the
> other hand, I've purchased a work that is not otherwise governed by
> contract conditions, you damn well better believe I'm going to take the
> prerogative to act on the rights granted to me by Title 117 and make a
> useable copy for my clients.
>
>
> At 01:03 PM 2/28/2003 -0800, you wrote:
>> Gary
>> Our lasts posts crossed but let me put this as nice as I know how
>> I THINK YOU ARE NUTS to say that it is ok to copy a 16mm just because
>> a rights holder HAS CHOSEN not release it on video or another format
>> THOSE RIGHTS BELONG TO THE COPYRIGHT HOLDER. If you seriously believe
>> that because a library had LIFE OF PRINT lease on a FEATURE film OWNED
>> BY A STUDIO it can make a VIDEO copy if the print is breaking down ,
>> than I think you need some redial copyright study. Forgetting the
>> studios for a minute I will give a Kino example, We own the rights to
>> two important and rare films which in fact were ONLY available in 16mm,
>> THE EMPEROR'S NAKED ARMY MARCHES ON by Hara and the short AMERICAN BOY
>> by Martin Scorsese. We did do one life of print lease on each title but
>> WE HAVE NO RIGHT TO PUT THEM ON VIDEO. Supposing we could not "replace"
>> the 16mm copies is they were degrading, you advocate giving the library
>> a right to make a video which even WE don't have rights for. Also
>> suppose you COULD replace a 16mm but given today's lab cost and the fact
>> that it might have to be re-timed it might cost $3,000 or more for one
>> film.
>> I can not emphasize too strongly that you would NEVER have the right to
>> make a video copy of copyrighted feature film WITHOUT the right's holders
>> permission. I assure you that this is not just my "guess " when this
>> issue came up before, I consulted two of the best copyright authorities
>> who have NOTHING to do with MPAA or studios and they both laughed at the
>> idea The legal liability you would face in copying a studio picture to
>> video would be huge. Again you probably would not get "caught" but it is
>> VERY dangerous to suggest you would have ANY legal protection
>> --
>> Jessica Rosner
>> Kino International
>> 333 W 39th St. 503
>> NY NY 10018
>> jrosner@kino.com
>>
>> > From: Gary Handman <ghandman@library.berkeley.edu>
>> > Reply-To: videolib@library.berkeley.edu
>> > Date: Fri, 28 Feb 2003 12:25:24 -0800 (PST)
>> > To: Multiple recipients of list <videolib@library.berkeley.edu>
>> > Subject: Re: copyright question
>> >
>> > I'm gonna go out on a limb here, Jessica. A feature film that was
>> > legally acquired on 16, is no longer commercially available (with a
>> > documented good faith attempt to acquire replacement), and is
>> > physically at risk is, in my book, grist for preservation copying
>> > (yes, onto video even). You're basically proposing that libraries
>> > allow a legally-acquired title in a collection crumble into celluloid
>> > and dust because the item is not replaceable and transfer rights are
>> > not forthcoming...I say that's not an option for responsible for
>> > collection managers. I do it first; cease and desist later...
>> >
>> > At 12:07 PM 2/28/2003 -0800, you wrote:
>> >> We have been through this one. You need to do EVERYTHING in your
>> >> power to contact the rights holder to get permission ( which there is
>> >> almost NO chance of getting). Basically you can pretty much forget
>> >> this on feature films. Just because whatever studio or rights holder
>> >> has decided not to release a film on video ( which ITSELF may be an
>> >> endangered format) NEVER gives you the right to make a transfer
>> >> without permission you will never get.
>> >> If you are talking about non-fiction films, it may be more
>> >> problematic. You can't just send a letter to last known address of
>> >> company you got it from and assume that would cover you legally. You
>> >> would FIRST have to do a copyright search to determine if it was
>> >> copyrighted and to whom. If AFTER that you made a really good faith
>> >> but unsuccessful effort to
>> locate
>> >> copyright holder , you might have a case for a copy but don't delude
>> >> yourself into thinking you are "preserving" it for anyone but your
>> >> own
>> use.
>> >> Realistically it would cost you a few hundred dollars in time & legal
>> >> fees to do the above so it is not very practical
>> >>
>> >> Basically most media formats have a finite life and when your item
>> comes to
>> >> the end of its life , that is pretty much it. The VAST majority of
>> 16mm were
>> >> sold or leased as EITHER a limited term contract ( 7 years) or a
>> >> "life of print lease" In NEITHER case would have any legal right to
>> >> copy it because it was deteriorating . Them's the breaks
>> >> --
>> >> Jessica Rosner
>> >> Kino International
>> >> 333 W 39th St. 503
>> >> NY NY 10018
>> >> jrosner@kino.com
>> >>
>> >>> From: Sarah Andrews <sarah-andrews@uiowa.edu>
>> >>> Reply-To: videolib@library.berkeley.edu
>> >>> Date: Fri, 28 Feb 2003 11:49:34 -0800 (PST)
>> >>> To: Multiple recipients of list <videolib@library.berkeley.edu>
>> >>> Subject: Re: copyright question
>> >>>
>> >>> What if your 16mm has degraded, is nearly unplayable, and you need
>> to make
>> >>> a preservation copy because it is out of print?
>> >>> Do you need to make a 16mm copy again?
>> >>>
>> >>> Sarah Andrews
>> >>> University of Iowa Libraries
>> >>>
>> >>>
>> >>>
>> >
>> > Gary Handman
>> > Director
>> > Media Resources Center
>> > Moffitt Library
>> > UC Berkeley
>> > ghandman@library.berkeley.edu
>> > http://www.lib.berkeley.edu/MRC
>> >
>
> Gary Handman
> Director
> Media Resources Center
> Moffitt Library
> UC Berkeley
> ghandman@library.berkeley.edu
> http://www.lib.berkeley.edu/MRC
> --=====================_18768250==_.ALT
> Content-Type: text/html; charset="us-ascii"
>
> <html>
> Nuts, maybe...but i think we've been cowed by copyright paranoia and
> bullied by media content owners for so long that we (that's we, as in
> librarians) tend to automatically roll over and play dead or to throw
> away whatever slim fair use rights we do have.&nbsp; If I sign a
> commercial contract that says &quot;Life of film&quot; and if my film
> dies an ignominious death, it's a matter of my adhering to <b>contract
> law, </b>not copyright (which allows me to make a preservation copy under
> certain conditions).&nbsp; In such a case, I'll adhere to my contract
> obligations.&nbsp; If, on the other hand, I've purchased a work that is
> not otherwise governed by contract conditions, you damn well better
> believe I'm going to take the prerogative to act on the rights granted to
> me by Title 117 and make a useable copy for my clients.<br>
> <br>
> <br>
> At 01:03 PM 2/28/2003 -0800, you wrote:<br>
> <blockquote type=cite cite>Gary<br>
> Our lasts posts crossed but let me put this as nice as I know how<br>
> I THINK YOU ARE NUTS to say that it is ok to copy a 16mm just
> because<br>
> a rights holder HAS CHOSEN not release it on video or another
> format<br>
> THOSE RIGHTS BELONG TO THE COPYRIGHT HOLDER. If you seriously believe
> that<br>
> because a library had&nbsp; LIFE OF PRINT lease on a FEATURE film OWNED
> BY A<br>
> STUDIO it can make a VIDEO copy if the print is breaking down , than I
> think<br>
> you need some redial copyright study. Forgetting the studios for a minute
> I<br>
> will give a Kino example, We own the rights to two important and rare
> films<br>
> which in fact were ONLY available in 16mm, THE EMPEROR'S NAKED ARMY
> MARCHES<br>
> ON by Hara and the short AMERICAN BOY by Martin Scorsese. We did do one
> life<br>
> of print lease on each title but WE HAVE NO RIGHT TO PUT THEM ON
> VIDEO.<br>
> Supposing we could not &quot;replace&quot; the 16mm copies is they were
> degrading, you<br>
> advocate giving the library a right to&nbsp; make a video which even WE
> don't<br>
> have rights for. Also suppose you COULD replace a 16mm but given today's
> lab<br>
> cost and the fact that it might have to be re-timed it&nbsp; might cost
> $3,000<br>
> or more for one film.<br>
> I can not emphasize too strongly that you would NEVER have the right to
> make<br>
> a video copy of copyrighted feature film WITHOUT the right's
> holders<br>
> permission. I assure you that this is not just my &quot;guess &quot; when
> this issue<br>
> came up before, I consulted two of the best copyright authorities who
> have<br>
> NOTHING to do with MPAA or studios and they both laughed at the
> idea<br>
> The legal liability you would face in copying a studio picture to
> video<br>
> would be huge. Again you probably would not get &quot;caught&quot; but it
> is VERY<br>
> dangerous to suggest you would have ANY legal protection<br>
> -- <br>
> Jessica Rosner<br>
> Kino International<br>
> 333 W 39th St. 503<br>
> NY NY 10018<br>
> jrosner@kino.com<br>
> <br>
> &gt; From: Gary Handman &lt;ghandman@library.berkeley.edu&gt;<br>
> &gt; Reply-To: videolib@library.berkeley.edu<br>
> &gt; Date: Fri, 28 Feb 2003 12:25:24 -0800 (PST)<br>
> &gt; To: Multiple recipients of list
> &lt;videolib@library.berkeley.edu&gt;<br>
> &gt; Subject: Re: copyright question<br>
> &gt; <br>
> &gt; I'm gonna go out on a limb here, Jessica.&nbsp; A feature film that
> was legally<br>
> &gt; acquired on 16, is no longer commercially available (with a
> documented good<br>
> &gt; faith attempt to acquire replacement), and is physically at risk is,
> in my<br>
> &gt; book, grist for preservation copying (yes, onto video
> even).&nbsp;&nbsp; You're<br>
> &gt; basically proposing that libraries allow a legally-acquired title in
> a<br>
> &gt; collection crumble into celluloid and dust because the item is
> not<br>
> &gt; replaceable and transfer rights are not forthcoming...I say that's
> not an<br>
> &gt; option for responsible for collection managers.&nbsp; I do it first;
> cease and<br>
> &gt; desist later...<br>
> &gt; <br>
> &gt; At 12:07 PM 2/28/2003 -0800, you wrote:<br>
> &gt;&gt; We have been through this one. You need to do EVERYTHING in your
> power to<br>
> &gt;&gt; contact the rights holder to get permission ( which there is
> almost NO<br>
> &gt;&gt; chance of getting). Basically you can pretty much forget this on
> feature<br>
> &gt;&gt; films. Just because whatever studio or rights holder has decided
> not to<br>
> &gt;&gt; release&nbsp; a film on video ( which ITSELF may be an
> endangered format) NEVER<br>
> &gt;&gt; gives&nbsp; you the right to make a transfer without permission
> you will never<br>
> &gt;&gt; get.<br>
> &gt;&gt; If you are talking about non-fiction films, it may be more
> problematic.<br>
> &gt;&gt; You can't just send a letter to last known address of company
> you got it<br>
> &gt;&gt; from and assume that would&nbsp; cover you legally. You would
> FIRST have to do<br>
> &gt;&gt; a copyright search to determine if it was copyrighted and to
> whom.<br>
> &gt;&gt; If AFTER that you made a really good faith but unsuccessful
> effort to locate<br>
> &gt;&gt; copyright holder , you might have a case for a copy but don't
> delude<br>
> &gt;&gt; yourself into thinking you are &quot;preserving&quot; it for
> anyone but your own use.<br>
> &gt;&gt; Realistically it would cost you a few hundred dollars in time
> &amp; legal fees<br>
> &gt;&gt; to do the above so it is not very practical<br>
> &gt;&gt; <br>
> &gt;&gt; Basically most media formats have a finite life and when your
> item comes to<br>
> &gt;&gt; the end of its life , that is pretty much it. The VAST majority
> of 16mm were<br>
> &gt;&gt; sold or leased as EITHER a limited term contract ( 7 years) or a
> &quot;life of<br>
> &gt;&gt; print lease&quot; In NEITHER case would have any legal right to
> copy it because<br>
> &gt;&gt; it was deteriorating . Them's the breaks<br>
> &gt;&gt; --<br>
> &gt;&gt; Jessica Rosner<br>
> &gt;&gt; Kino International<br>
> &gt;&gt; 333 W 39th St. 503<br>
> &gt;&gt; NY NY 10018<br>
> &gt;&gt; jrosner@kino.com<br>
> &gt;&gt; <br>
> &gt;&gt;&gt; From: Sarah Andrews &lt;sarah-andrews@uiowa.edu&gt;<br>
> &gt;&gt;&gt; Reply-To: videolib@library.berkeley.edu<br>
> &gt;&gt;&gt; Date: Fri, 28 Feb 2003 11:49:34 -0800 (PST)<br>
> &gt;&gt;&gt; To: Multiple recipients of list
> &lt;videolib@library.berkeley.edu&gt;<br>
> &gt;&gt;&gt; Subject: Re: copyright question<br>
> &gt;&gt;&gt; <br>
> &gt;&gt;&gt; What if your 16mm has degraded, is nearly unplayable,&nbsp;
> and you need to make<br>
> &gt;&gt;&gt; a preservation copy because it is out of print?<br>
> &gt;&gt;&gt; Do you need to make a 16mm copy again?<br>
> &gt;&gt;&gt; <br>
> &gt;&gt;&gt; Sarah Andrews<br>
> &gt;&gt;&gt; University of Iowa Libraries<br>
> &gt;&gt;&gt; <br>
> &gt;&gt;&gt; <br>
> &gt;&gt;&gt; <br>
> &gt; <br>
> &gt; Gary Handman<br>
> &gt; Director<br>
> &gt; Media Resources Center<br>
> &gt; Moffitt Library<br>
> &gt; UC Berkeley<br>
> &gt; ghandman@library.berkeley.edu<br>
> &gt;
> <a href="http://www.lib.berkeley.edu/MRC"
> eudora="autourl">http://www.lib.berkeley.edu/MRC</a><br> &gt;
> </blockquote><br>
> <div>Gary Handman</div>
> <div>Director</div>
> <div>Media Resources Center</div>
> <div>Moffitt Library</div>
> <div>UC Berkeley</div>
> <div>ghandman@library.berkeley.edu</div>
> <a href="http://www.lib.berkeley.edu/MRC"
> EUDORA=AUTOURL>http://www.lib.berkeley.edu/MRC</a> </html>
>
> --=====================_18768250==_.ALT--
>

**********
Jeff Clark
Director
Media Resources (MSC 1701)
James Madison University
clarkjc@jmu.edu
540-568-6770 (voice)
540-568-3405 (fax)