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This page helps you get a better understanding of the legal concepts in the chart and case-summaries sections. The works selected for this page have copyright status that is determined by a variety of intertwined, overlapping, overriding, and even conflicting aspects. This makes them poor choices for discussion on the chart pages but ideal subjects for long-form dissection as given here. (The subjects being works of movie comedians is mere coincidence.) The confluence of diverse legal rules described in the inquiries opens a greater possibility than on other works of error creeping into the probe. In any event, definite conclusions are not offered, although the reader should come away with a greater understanding of how the diverse legal principles fit together. As with elsewhere on this site, no legal liability is undertaken by the website proprietor, and any user of this web site who takes actions based on the information herein must accept any risk for consequences.
Before reading these probes, you should be familiar with the main ideas on the main chart page as well as the illustrations pages and the citations and case-summaries pages. For the convenience of the reader, links to these other pages are included as appropriate. The main chart page remains the key page of this web site, and is accessed here.
When Charlie Chaplin signed a contract to make movies for First National Pictures, the 1917 agreement was a milestone for the screen’s most popular comedian. He would own the films. Prior to starting on the eight films, he had written, directed and starred for three other companies, but the companies kept ownership of the films, Chaplin was paid only a salary. Chaplin was obliged to let First National distribute the films as much as they wanted for five years, but after that time Chaplin would control distribution.
Hollywood studios then as now kept control of the movies they financed and distributed. The exception that Chaplin carved out for himself is just one aspect of these films that decades later make the copyright status of them different than that of most of the films of Chaplin’s contemporaries.
The eight films were individually copyrighted as they were readied for the public. Oddly enough, two were copyrighted in the name of a different claimant than the other six. The Chaplin / First National registrations:
Dog’s Life © Charles Chaplin 12Apr18
Shoulder Arms © Charles Chaplin 2Oct18
Sunnyside © First National Exhibitors Circuit, Inc. 4Jun19
A Day’s Pleasure © First National Exhibitors Circuit 26Nov19
The Kid © Charles Chaplin 17Jun21
Idle Class © Charles Chaplin 6Sep21
Pay Day © Charles Chaplin 13Mar22
The Pilgrim © Charles Chaplin 24Jan23
The usual first questions one asks when wanting to know whether these films have entered the public domain are: 1) were the films published?; 2) were the copyrights renewed?; 3) have enough years elapsed that the renewal terms have expired?
The answers here are:
1) YES. The manner in which they were distributed indicates publication. The registrations were for published motion pictures. At least some of the films were offered in 16mm editions (in addition to the 35mm prints sent to theaters). (This subject treated under limited publication.)
2) All eight films were renewed. (See renewal chart.)
3) American copyrights for works published 1918-1922 were entitled to 75 years of copyright, even after extensions and renewals. The 1918 copyrights expired in 1993, the 1922 copyrights in 1997, and the 1919-1921 copyrights between 1993 and 1997. The one film in this group with a copyright late enough to still subsist is the 1923 film; set to expire at the end of 1998, the 1923 film benefitted from the copyright extension statute passed in 1998, adding twenty years to the term, postponing expiration until 2018. (See the citations and case summaries page on term period calculation.)
From the preceding, it would seem that at the time of this writing, the first seven films are fair game for anyone wanting to copy, exhibit, excerpt or remake them, in all cases without authorization or payment to Chaplin’s heirs and successors. But wait! Before you announce your plans to offer these classics on your label, ask yourself whether you know yourself to be copying from work in the public domain.
On these films, it’s not so obvious whether you are seeing the same work viewed by audiences when the titles were new.
Here’s the crux: The negatives to these films were reassembled from 1943 to 1944. The new negatives were put together from alternate takes shot during the original filming 21-26 years earlier. This is not the same subject as the “Director’s Cuts” of today where dissatisfied filmmakers shorten and extend the shots already shown to audiences and also restore deleted scenes previously cut for time. The Chaplin films made for First National continued to present the same succession of events in the same chronology and with same types of shots. However, the new version removed the specific “takes” previously used and substituted for each a “take” that had been passed over for selection before. Why? The old second-choice takes that had been put aside two decades earlier were still clear, unscratched and pristine, whereas the long-used much-printed first-choice negative had become worn.
|Those unfamiliar with the practices of movie production companies during the
silent era might not realize that the creation of multiple complete, yet different,
negatives was common practice before the conversion to talking pictures. Studios
made film prints directly from the original camera negative. Duplication stock
intended to copy a negative to make an identical negative, did not give satisfactory
picture quality. Even special effects, split-screens, double-exposures and dissolves
were done “in the camera.” Even during the late 1890s, a short film made
two years earlier by the Edison Company was so popular that the negative wore out
servicing print orders, so the actors were called back to film the story anew. Even
in 1914, D.W. Griffith shot just one take of each shot for his mammoth epic The Birth
of a Nation. The wear on the negative, early in the run — necessitating
that some scenes be recopied from the better prints for lack of any better source —
may have convinced the better-financed filmmakers that it was a good idea to film a second
usable take on each shot, unless the film was deemed of limited appeal. Chaplin made
of policy of setting aside alternate takes. Major productions in the United States
were filmed under policies calling for multiple good takes on each shot, so that a
complete negative comprised of alternate takes could be shipped to Europe, eliminating the
need for the primary negative to be shipped back and forth across seas as demand increased
for new prints.
Some film connoisseurs today may cry that the multiple-version policy indicates moviemakers uncertain of their art, unwilling to settle on a definitive version, “palming off” their second-best as though it were their top achievement. The background from which early film creators came, suggest a different opinion held by the creators. The top talent of early cinema came from acting on stage. From their many years of playing the same material each night (if not eight shows a day), they knew that each performance was a little different but they would not have argued that each audience saw a different play; little differences of nuance from performance to performance were considered part of what a play was. It was still the same play they were giving. Once they transferred themselves to movies, wouldn’t they be of the opinion, Is there anything wrong by giving different audiences a slightly different experience?
Fritz Lang was an esteemed and popular director when he spent a large budget filming Metropolis (1927). Lang prepared three negatives of Metropolis. Apparently, the take he favored of each shot went to the domestic release (Germany), but the takes that were incorporated into the second negative (American) and third negative were also approved by him. The conflict between the first choice made by director and the higher picture quality that survives on the alternate choices, confounded the creators of the “Restored Authorized Edition”issued in 2002. Most often when given a choice, the editors chose the American version. This was a proper choice: not only was the German negative more worn, but the deterioration it suffered a few years after release caused the need for some shots to be replaced by shots that had not been chosen for any of the three 1927 releases. What might want to label them the director’s fourth choices—except that Fritz Lang was not involved in substituting new for old that many years removed from the project.
How does this affect copyright on the first seven Chaplin films for First National?
The new versions qualify as derivative works adapted from the original versions. As new works, they qualify for separate copyright on which the start date is determined by the publication date of the new material. Never mind that the “new” material was filmed concurrently with the “old” material, because the date that matters is public availability. The copyright on the earlier versions is not extended by any copyright in the derivative version. (See the chart on derivative versions and the citations and court summaries pages on derivative versions and on underlying copyright.)
The preceding reports that Chaplin was entitled to register copyrights in the derivative works created from the films on which he at the time still had under copyright protection. This does not mean that he actually did so. The volumes in the Cumulative Copyright Entries series for Motion Pictures registered for 1940-49 and for 1950-59 do not have listings under these titles. This pair is not an exhaustive source of listings, but is where likely any listings should be. The 1950-59 book does list Chaplin Revue, the 1959 compilation that contains the new versions of A Dog’s Life (1918), Shoulder Arms (1918) and The Pilgrim (1923), plus some footage shot for an uncompleted film. This copyright gives coverage to the new editions of the three earlier films.
(Under the U.S. Copyright Act in effect from 1978 onward, Chaplin would not have had to register copyright in the derivative versions to enjoy copyright protection in them. It would be sufficient that the new versions were “new” works to the extent required by law. However, it could not possibly be argued that the new versions were not published prior to 1978. The new versions had been shown by then in theaters by arrangment with different distributors at different times.)
Why would there not be statutory U.S. copyrights on the new versions? Chaplin may not seen any need to copyright the new editions. Inasmuch as they contain the same action and story as the previous editions, using the same costumes and sets, all edited for the same continuity, the earlier copyright would protect the new versions inasmuch as no one would be permitted to make unauthorized copies of the new editions without violating Chaplin’s recognized exclusive rights to the story, characters, wording, nuances and rhythms subsumed in each of the copyrighted works. With the passage of time past 1993, the situations changes.
The original versions of the first seven films have reached an age beyond the maximum term of protection under U.S. law for works published 1918-1922. The 1943-1944 versions could enjoy protection under U.S. law until 2038 (a 95-year term calculated from 1943) or later, depending on when the new versions were first shown (or, technically, when first published, which may be later). These versions could, but do they?
A new version of a comedy feature made by one of Chaplin’s competitors among great silent-film comedians was copyrighted in 1953. The original version of The General had been copyrighted in 1926, so some of its original term was left when the 1952 registration was made for a derivative work. Raymond Rohauer had become Buster Keaton’s business manager a short time earlier, and thus had legitimate access to Keaton’s 1926 masterpiece. As luck would have it for purposes of example, the 1926 copyright was not renewed when its 28-year term ended on December 22, 1954, so we have a perfect example of an instance where an original version was in the public domain while the new version could subject an infringer to a lawsuit. Rohauer claimed copyright in “NEW MATTER: editing, introd. & additions” (quotation from the Copyright Office Registered Works Database). (See citations and case summaries.)
Chaplin himself had modified one of his silent feature-length masterpieces and then copyrighted the new version as a new work based on the old. The Gold Rush (not one of the First National subjects) was copyrighted the year of its release in 1925. In 1942, Chaplin added music to the silent film, replaced the dialogue and explanatory titles with spoken narration, substituted previously-unused takes for shots showing the same actions, and trimmed the ending. This version was copyrighted the year of its release in 1942. As with the altered version of The General, the derivative version of The Gold Rush was made while the earlier version was still under the first 28-year term to which it was entitled; as with The General, the copyright on the original version of The Gold Rush was not renewed when the term ended in 1953. (The music-and-narration version of The Gold Rush was renewed.)
(Chaplin’s registering copyright on the new version of The Gold Rush but not the First National subjects may not be an inconsistency. The new versions of the First National works did have music and narration added to them. These additions may have been forefront in Chaplin’s mind when he registered copyright. The compilation film comprised of First National shorts, Chaplin Revue, also has newly-added music and narration, and Chaplin Revue was copyrighted. The fact of the copyright on the re-edited version of The General is relevant here because it proves that a copyright holder did decide to copyright a revised version where the new work was so unchanged that it could be mistaken for the old version. The new version of The General did not have the addition of a music score nor narration, its length was not substantially changed, so this version might have been accepted for the old by unwary potential infringers.)
The absence of copyright registrations in five of the new versions (the three works within Chaplin Revue are excepted), along with the expiration of seven of the eight 1918-1923 copyrights (the one exception, The Pilgrim, also being part of Chaplin Revue), suggest that five of the works have entered the public domain under U.S. law. However, is U.S law the final determinant?
Chaplin was a British citizen. He earned his wealth while residing in the United States, but he never changed his nationality. Six of his eight First National films were copyrighted in his name. This means that six of the copyrights are in the name of a British citizen.
Prior to URAA/GATT taking effect in 1996, the nationality of the claimant would not have mattered in the United States. URAA/GATT resulted in the United States respecting the copyrights of foreign countries where the claimant is a citizen of the country where there is a valid copyright for the work in question. Great Britain is among the member countries of Berne, a multinational copyright treaty whose members recognize each other’s copyrights. Therefore, one needs to determine what British copyright recognizes. (See the chart page on foreign copyright.)
The Chaplin Estate has already used British copyright to enforce rights in the United States. Britain recognized that The Gold Rush had been in copyright since 1925. The Chaplin Estate has used this knowledge to halt unauthorized copying of Chaplin’s 1925 silent film The Gold Rush, which had been widely copied by public-domain companies for years, owing to the 1925 U.S. copyright not having been renewed in 1953. (The fact of the Chaplin Estate threatening legal action against unauthorized use of The Gold Rush doesn’t mean that the law was on their side. More about this later.)
The above remarks concerning the United States respecting the foreign copyright is contingent upon any particular work qualifying. One of the rules is that the first publication in the United States could not have occurred prior to first publication in an “eligible” non-U.S. country nor during the 30-day window beginning with the first publication in a relevant foreign country. Otherwise, the work receives only the copyright that it obtained through American registrations. (This rule is in the Copyright Act, §104A(h)(6)(D).) What were the publication dates in England? For this, one needs to look at the foreign registrations (either in the originals or as published in catalog form), reference sources (such as trade papers of the time), or other resources. Keep in mind that if source does not give the “publication date” as legally defined, any date given (such as date of first performance) might not be valid for determining whether the 30-day window rule works to disqualify the foreign copyright from being recognized in the United States. (This question is answered for The Gold Rush in the next section. It is not supplied on this web page for the First National releases.)
This leaves the question of the copyright status of the two Chaplin subjects made for First National that were copyrighted by First National.
The two Chaplin subjects from 1919 were copyrighted in the name of First National. At first glance, this seems to establish that the copyright status will be determined on the basis of the claimant being an American company rather than a British citizen. However, ownership vested in Chaplin. A search through the transfer records at the Library of Congress (which I have not done on this subject) may establish that the copyright came to be in the name of Charles Chaplin. If so, this may not end the inquiry. Would the fact that the copyright was originally in the name of an American company place the works in the public domain after 75 years, regardless of the rules within URAA/GATT benefitting a British citizen? Would British recognition of the copyright entitlements accorded a British citizen take precedence over the fact that British law might treat a claim in the name of an Americn company as though American law should predominate. I find nothing in the law as to which interpretation trumps the other.
As it is, the majority of the First National subjects made by Chaplin seem to enjoy copyright protection on the basis of British law. At the time that Chaplin died in 1977, duration of copyright was set as the life of the creator plus fifty years thereafter. (Copyright Act of 1911, s 3.) This gave Chaplin’s copyright validity until 2027. In 1995, the duration was extended to life of the creator plus seventy years. (See the documentation page on British law) As its application was retroactive, the works of Charles Chaplin are under copyright in the United Kingdom until 2047.
Under British law, a claimant was not subject to same stringent laws about declaring each work nor of declaring derivative versions to obtain additional time for at least some version. Under British law, expiration is tied to the death of the creator, so all of his works and each version of them will all expire together on the very same day several decades after the man’s death. On those works which the United States regards as covered by British copyright, American protection will last until that same far-off day.
As reported above, American reciprocal copyright recognition of foreign works is contingent upon fulfillment of some conditions, one of which is that initial publication in the United States could not have occurred prior to publication in an eligible foreign country nor during the thirty days following initial publication in an eligible foreign country. This is indicated by §104A(h)(6)(D), which became part of the U.S. Copyright Act through the 1994 URAA/GATT legislation. The workings of this provision are outlined in a table on the illustrations page about foreign copyright, under the header labeled “Another Qualification Where a Foreign Work Was Not Registered for Separate American Copyright.” For any work on which the foreign copyright is decisive about copyright protection in the United States, the exceptions indicated in §104A(h)(6)(D) are important. Of course, wherever a valid American copyright continues to protect a work, any test concerning a comparison of the publication date in the United States against foreign publication dates, becomes irrelevant.
As demonstrated in the above section about Chaplin’s First National films, The Gold Rush was copyrighted in the United States in 1925 but was not renewed under American law. After URAA/GATT, the Chaplin Estate has sought to thwart unauthorized screenings and copying by arguing that under URAA/GATT, this American-made film is entitled to reciprocal-nation copyright protection by virtue of British copyright, and that it is entitled to status as a British film owing to the film having been copyrighted in the name of Charles Chaplin, who remained a British citizen during his four decades as an American-based filmmaker. This part of the argument seems to have legal merit. However, even a bonafide British work has to pass the 30-day test if it is to be accorded reciprocal copyright protection. Does The Gold Rush qualify?
The Catalog of Copyright Entries, Cumulative Series, Motion Pictures, 1912-1939, published by the United States Copyright Office, indicates that The Gold Rush was copyrighted August 16, 1925, as registration LP21805. Take note of the “LP” in that number. There being a “P” in that “LP” instead of a “U” in “LU” indicates that the work was declared to be published. This eliminates (or at least reduces) the argument that the film may have been unpublished at the time, that it might merely have been exhibited without publication. (The distinction between exhibition and publicatin is explored on previous pages.) Thus, the publication date (in the legal sense) in the United States seems to be fixed as having been August 16, 1925. The first review of the film to appear in The New York Times was dated Monday, August 17, 1925, and mentions a midnight screening that occurred Saturday at the Mark Strand. Given that a screening that began midnight on Saturday technically took place on Sunday, it appears the first screening in America’s capital for movie premieres took place on Sunday, August 16, 1925, the same day recorded on the copyright registration. By contrast, the Times of London reviewed The Gold Rush on September 15, 1925, reporting “‘The Gold Rush’ … was shown for the first time in [that newspaper’s] country yesterday at the Tivoli Cinema”. Under British law, exhibition of a film constitutes publication, so publication seems to have occurred in the United Kingdom September 14, 1925. Not only does it seem (from the reports of The New York Times and the Times of London) that American publication preceded British publication (thereby disqualifying reciprocal copyright recognition under §104A(h)(6)(D)), but the time difference wasn’t even close. For the 30-day rule to work in favor of copyright “restoration,” American publication has to occur at least thirty days after publication in an eligible foreign country. In the case of The Gold Rush, American publication occurred a day shy of thirty days prior to publication in the most relevant foreign country.
(Information about the dates of the preparation of the new negatives is reported in David Robinson, Chaplin: His Life and Art. Jeffrey Vance does not address this in his book Chaplin: Genius of the Cinema, but did research inside the Chaplin Archives, sharing some of his findings in a newsgroup post on alt.movies.silent, August 2, 2003. To obtain the whole message, visit groups.google.com/advanced_search?q=&. Lillian Gish recalled Mr. Griffith not filming second takes in her memoir Lillian Gish: The Movies, Mr. Griffith and Me.)
Chaplin fans have commented on the difference between different versions of the same film subject. When a DVD was available of the original version of Shoulder Arms, several people traded observations in an online forum after comparing the original version to the re-done version, long available on DVD in editions authorized by the Chaplin Estate. These comments can be read by going to groups.google.com/advanced_search?q=&, entering newsgroup “alt.movies.chaplin”, subject “Shoulder Arms comparison, Pathe vs Revue” and dates Nov. 14, 2005 to Dec. 22, 2005. (You may want to limit the dates to the first few to get merely the first exchanges, then click links to read more if you remain interested.) One of the most knowledgeable participants, David Totheroh, is the grandson of R.H. “Rollie” Totheroh, the photographer that Chaplin employed when he actually made these films!
illustrations: Chaplin in a still posed during production of The Gold Rush; listing from Catalog of Copyright Entries, Cumulative Series, Motion Pictures, 1912-1939.
The before-and-after illustrations (directly above) show the main title of The Abbbott and Costello Show as originally broadcast in 1952 and 1953 (left), and how it was amended to add a copyright notice decades later (right). The lack of a copyright notice at the time of original broadcast did not place the programs into the public domain. (Readers unclear as to why this is so should look at the citations and case summaries page on limited publication and the one on performance is not publication. The decision against Sonneborn is particularly applicable.)
In the mid-1970s (before the Sonneborn decision), film copies of the first-season episodes of this series were offered without authorization to collectors by small companies which believed that the shows were in the public domain. The first season is the 1952-53 season — the season with the opening credit sequence illustrated above.
T.C.A. registered copyrights for each of these 26 episodes in 1979. The opportunity for them to do so had opened up with the new Copyright Act. (See the citations under registration late.) The summary on this web site for Barris v. Hamilton indicates how another copyright holder had taken advantage of the new law to file a registration on a previously-unregistered work that also was nearing the end of the 28-year first-term period. As recounted in the summary of that case, the copyright term was calculated from a date considerably prior to the registration date.
T.C.A. took out ads in a trade paper shortly after registering the copyrights alerting the entertainment industry that they claimed valid copyrights in the programs. Copying stopped.
Copyright terms for pre-1978 motion pictures last for 28 years and the term is calculated from the date of publication. When was publication? Television programs prior to 1978 can be considered to have been performed but never published, unless events occur which change this status. That would be ruled in the Sonneborn decision. The NBC broadcast of “Peter Pan” starring Mary Martin was declared to have never been published because it had only been shown by network transmission.
When the CBS network first showed the filmed Abbott and Costello Show programs in prime time during the 1952-53 season, it can be argued that the creators had not lost control over them (as interpreted by the Act in place before 1976). “Loss of control” is a determinative factor. (This quotes from, and summarizes the key point of, the decision in Paramount Pictures Corp. v. Leslie Rubinowitz, et al, which decided that Paramount had not lost rights in Star Trek which would have been sacrificed had additional parties attained control in the distribution of film copies of the episodes.)
When was control lost on The Abbott and Costello Show? To answer that, we should look at what occurred when the program entered post-network syndication. Television stations in local markets throughout the United States could acquire film copies to schedule at whatever hours suited them. Given that the station acquiring a particular collection of the episodes had exclusive rights of broadcast only within a limited radius of the given major city (the radius was usually 40 to 75 miles), there were over two hundred potential territories into which the programs could be sold. Was control lost?
A respected television-industry annual devoted to syndication indicates that among the distributors which handled the series were Sterling TV (in 1962), Walter Reade Organization (in 1970), Alan Enterprises (in 1983), and Screen Gems/CST Entertainment (in 1987). Prints ending with a logo reading “MCA-TV distribution” are evidence of that company being a distributor too. (The years in parentheses should not be assumed to be the sole years that the program was syndicated by the particular company.) The edition of the same resource for Summer-Fall 1970 (when it hadn’t yet reduced publication to once a year) states that the series then was “Sold in practically every market.” Also noted: “48 complete runs in New York City”.
From these facts, we can surmise that The Abbott & Costello Show was published by 1962 (possibly earlier), that the 28-year copyright needed to be renewed no later than 1990, and that the absence of those renewals placed the shows in the public domain once again.
Where publication first occurs in 1964 or later, renewal is automatic. Published works on which the term began prior to 1964 lost copyright if not renewed during the appropriate time window. (See the citations and layman’ guide quotes under renewal failure and term period calculation and well as the statutes at law.copyrightdata.com.) Public Law 103-307, which afforded automatic renewal for 1964-1977 works, did not retroactively apply to copyrights with pre-1964 start dates.
The Barris v. Hamilton decision reports that the judge was willing to entertain whether the copyright registration in that case could be taken to be a renewal so that copyright could be enjoyed into the second term. He determined that only where the application is filed in the 28th year after publication is that possible. These comedy programs, likewise, were registered for copyright late in their 28-year terms but not so late that the registration occurred during the one year during which a renewal would be valid.
(Even if the CBS nationwide broadcasts were considered publications — which they likely would not be given the Sonneberg verdict — even the first 1952 broadcast did not occur early enough that 27 years after the next December 31, such a publication date would be eligible for renewal. SIDE NOTE: The reader should be careful in not too hastily disregarding the possibility that the CBS broadcasts were publications. The Sonneberg decision concerned NBC broadcasts of a program that NBC produced. With the same entity both producing and broadcasting the production, the producer was not losing control in presenting it. In contrast, The Abbott and Costello Show was a T.C.A. production for which CBS contracted limited rights to broadcast. Nonetheless, the Copyright Act in effect before 1978 differed from that in effect since 1978 in ways that define “publication” so that a broadcast is not necessarily more than a performance. See again the section on performance is not publication for more.)
As of this point in the investigation, the copyright status of the series seems to hinge on whether publication is deemed to have occurred prior to 1964 or not until afterward.
And yet: Any absence of a still-valid copyright on the programs does not end the investigation. Underlying rights pose a potential barrier to the use of (at least some parts of) the programs.
A New Twist: A person unfamiliar with the career of Abbott & Costello wouldn’t know this, but the scenes under the opening credits of this television series are taken from the team’s movies made a decade earlier. (Three such moments are shown frozen in the illustration shown here, but these moments and several others race along onscreen in their full rapid motion in the full credits sequence.) So many television series use in their credits sequences some choice moments from those series that a person might reasonably assume that this series does so too, particularly if the viewer has not seen all of the episodes. The movies are owned by Universal. This brings up an issue of underlying copyright. Can a person reproducing the television programs on the assumption of these being in the public domain also reproduce without alteration the credits sequence without incurring a law suit from Universal, which renewed the copyrights on all of their 27 Abbott & Costello movies?
To answer this, keep in mind that the creators of The Abbott and Costello Show almost certainly licensed from Universal the use of those clips as part of the show. As long as the clips remain part of the show (and not isolated from the show to be used in a distinctly new work), it can be argued that the clips continue to be used in the manner that Universal allowed by their agreement. Such reliance does not protect a user had Universal placed in their contract a time limit on the use of the clips, a limit on the number of times that the incorporating work could be shown without further payment, or restriction on transfer of rights to third parties.
The copyright registration forms for the episodes of the series (see samples reproduced on this site on the chart page on registration) make no mention of “preexisting material” “that this work is based on or incorporates”. Such lack of declaration might bode well for a court decision that any rights that might have been preserved in the underlying works were waived then and thus forgone now. See the citations and case summaries page on derivative versions to read summaries of court decisions that went both ways on this point.
You might ask: “If I’m confident of my reasoning that has me to my conclusion that the factors outlined here have put the programs in the public domain, does that mean I can freely use the entire series?” The answer: No. As the wording above indicates, these arguments analyze the first season of The Abbott and Costello Show. The facts about the two seasons are different. It would be a mistake to extrapolate conclusions about the legal status of one season to the legal status of the other.
(This is a new exercise supplementing that about the First Season of The Abbott and Costello Show)
The second-season episodes bore copyright notice from their creation. This aspect of copyright procedure was heeded in 1953, yet registration was held off until 1979. (See the registration forms reproduced in the registration section of this web site.) Here the pattern already differs from the first season: the second-season episodes had copyright notices from the beginning, unlike the first-season counterparts; yet registration was in abeyance until 1978, just as was the case with the other season.
When were these programs published? The conditions surrounding performance, first broadcast and syndication of the second season was the same as for the first season (except that the initial CBS broadcasts occurred in the 1953-54 season instead of the 1952-53 season). In the case of the second season, however, we don’t have to struggle to determine when the circumstances of syndication qualified as a publication. The date in the copyright notice qualifies as the answer.
(Note: the difference between the CBS broadcasts of the first season in 1952-53 and the second season in 1953-54 is a one-year difference which does not affect the computation of the registration occuring within the 28-year first-term period nor place any filing into the period of renewal eligibility).
The year “1953” is the date of publication insofar as determining the start date of the first 28-year copyright term. (See the citations and case summaries page on term period calculation.) The reader might want to look again at the registration application for the selected episode of this program reproduced on the chart page for registration. What is the date of publication given? “April 23, 1979”, it is written. Is that crucial? Look now at the lower left corner of the front page. Do you see where the Copyright Office typed onto the form “* in notice: 1953”? This is vital; it is determinant. The Copyright Act states under the subtitle “Error in Date” that “When the year date in the notice on copies or phonorecords distributed by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 302 is to be computed from the year in the notice.” (1976 Act, §406(b)). One 1935 court decision which rendered this policy as its verdict and which is summarized on this web site, is Southern Music Pub. Co. v. Bibo-Lang, Inc.
The preceding arguments concerned date of publication, which indicates that the work is a published one. You read correctly: a published work. Is that what the claimant was registering? Look again at the registration applications. On the top of the front side, where a choice of “PA” and “PAu” are given, “PAu” is circled. Where the serial number for registration has been stamped in, it begins “PAu”. (This condition isn’t limited to just the episodes of The Abbott and Costello Show for which applications are reproduced on this web site. Several other registrations, each covering a different episode, were examined by the web site editor, and all have “PAu” circled and as part of the registration number.) Although status as unpublished work would start the clock in 1979 — in which case the (corporate-made) works would be entitled to 95 years of protection (up from the 75 years provided by the Copyright Act from 1978 to mid-1998), without need for renewal — this condition is inapplicable where events have occurred that constitute “publication” as defined in law. Study the decisions in Rubinowitz and Sonneborn to see how these laws have been interpreted in similar circumstances.
The decision in Barris v. Hamilton was that where a registration was taken out in 1986 but the work was published (in print, in this case) in 1962, the clock started in 1962 and renewal was required in 1990. The judge was willing to let the registration for unpublished work protect published work, but would not allow the coverage period begin later than the year of actual publication. (This action by the judge was not the courtesy it may appear. Section 408(e) of Title 17 (the Copyright Act), 1976 edition, states under “Published Edition of Previously Registered Work,” that “Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version.”)
What do these factors do to the copyright periods for The Abbott and Costello Show second season?
If the second season programs were unpublished (in the legal sense) when they were registered in 1979, the clock could start as late as 1979. (This interpretation would also apply to the first-season episodes, which were likewise registered as unpublished works in 1979.)
Setting back the start date in the case of the second season are the copyright notices giving the date as 1953. As stated above and given judicial precedence in Southern Music Pub. Co. v. Bibo-Lang, Inc., the earlier date is used in calculating the period covered by a copyright. The first-season episodes could lose a year of coverage owing to their belatedly-added copyright notices giving the year “1978” (rather than 1979, the year of registration), but this is a mere trifle by comparison.
Would yet another year be a candicate for the start date? As recounted in the exercise on season one (this page, above), the claimant (probably) lost control of the distribution by 1962, by which time both seasons had been sold into syndication. However much this may affect the publication date of the first season, the fact remains that on the second season, the year “1953” in the notice is earlier and thus the year to take precedence.
You might ask: Could the one registration cover both the first term and the renewal period? To answer this: Look at the applicable dates. If the copyright term began in 1953, renewal was required between December 31, 1980, and December 31, 1981. Any date in 1979 would be too early.
Another objection that might be asked: Might it be declared that publication didn’t occur in 1953 and thus that the 1953 date could be ignored? If so, presumable another date could be substituted. No other reasonably-possible date could achieve results preferable to T.C.A. No date prior to 1953 is possible because the programs had not yet been made, nor was any date prior to 1953 on the notice. No date from 1954-1963 would alter the fact that such a copyright would require renewal and that the eligibility for renewal has passed. A date from 1964-1977 would offer the benefit to T.C.A. of the renewal occurring automatically at the correct time, yet how could it be established that conditions existed in any of those years (years of syndication) that did not exist previously? Why would a year within 1964 to 1977 be considered the year of first publication and not a year prior to 1964?
(Note: The same argument summarized under Season 2 concerning the registrations being for “unpublished works” also apply to Season 1. Readers should consider this point, although the editor no more believes it is determinative of the copyright status of the first season than he believes it is of the second.)
Within the above probe, where the text mentions a “respected television-industry annual devoted to syndication,” the publication referenced is TV Film Source Book: Series, Serials & Packages, offered by Broadcast Information Bureau. The periodical TV Film Source Book consists of five parts, published over several separate books:
Part I—Series, Serials, Shorts
Part II—Feature Film & Western
Part III—Foreign Language Series & Features
Part IV—Film Titles (Index)
Part V—Sources (Index)
The publisher contact information, as given in Volume #4, Issue #7 (Winter-Spring 1962-63), is: Broadcast Information Bureau, 535 Fifth Avenue, New York 17, N.Y.
The next page of this web site offers more examinations of the type appearing above. Whereas the present page concerns works made in the United States, the next page is devoted to foreign exercises: works made outside the United States by foreign entities.
Readers who have considered the arguments in the preceding exercises might want to examine the reasoning within a lengthy page on a law professor’s site. Free Mickey Mouse argues that the character Mickey Mouse made his first appearance in cartoons that may have entered the public domain, despite documentation that make it seem that these works (and the character) remain the exclusive property of Walt Disney Productions. The author of the linked web page readily concedes that no conclusive determination can be made without seeing the original release editions of the cartoons and that he has been unable to do so. (By “original release editions,” I differentiate the earliest version shown to audiences from later reissues on which changes were made. This is much the same case as with the Chaplin comedies discussed above.) Given that the original release versions were not seen by the author of the article, and given too a lack of documentation about the wording (if any) of the copyright notices on the cartoons as originally issued, it follows that readers should treat his web page as an interesting exercise in reasoning that leads to no definite conclusion.
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The Copyright Registration and Renewal Information Chart and Web
© 2007 David P. Hayes