In January, I posted the 1925 silent film The Lost World to my YouTube channel together with my original accompaniment. A hundred-year-old movie is supposed to be out of copyright. The video is downloaded from the Internet Archive, which I took as confirmation of its public-domain status. Last week YouTube took it down, citing a copyright complaint by Flicker Alley. The issue is that Flicker Alley claims to hold copyright on the restoration of the movie which I downloaded.
So far I’ve taken two steps. I contacted Flicker Alley disputing the copyright claim. They responded promptly, insisting their copyright is valid. I then submitted a counter-claim to YouTube. What happens next depends on Flicker Alley’s next response. If they persist, I’ll have no choice but to keep the movie permanently off the Internet. Accompanying silent movies is a hobby that I don’t make a cent from, and it isn’t worth it to me to pay a lawyer to dispute the matter in court.
The issue which I’m raising is whether a restoration, absent any significant new material, can be copyrighted, bringing an out-of-copyright work back into copyright. I’m not a lawyer but have looked into the legal issues. The Supreme Court’s decision on Feist Publications, Inc. v. Rural Tel. Serv. Co. is relevant here. The primary holding is that “The standard for deciding whether a work can gain copyright protection is its originality rather than its creator’s effort.” The ruling holds: “Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity.”
The case in question was a phone book, but I think the same reasoning would apply to a restoration, which by definition is not an original work. New elements, such as music and colorization, are copyrightable, and if I’d uploaded the movie with the music from Flicker Alley’s DVD, that could be a copyright violation. But what I uploaded was simply the content of a 1925 film, not even at the full resolution of the DVD.
Flicker Alley says that I could go to the original film myself and make a digital transfer of it. While this is possible in principle, it would be difficult and perhaps impossible in fact, depending on who holds the film. It’s rather like saying that to upload the text of a Dickens novel, I have to work from a nineteenth-century edition rather than using the text from any modern edition.
Unless Flicker Alley fails to follow up, I may have to fold. This is unfortunate, as it makes life difficult for all silent film accompanists. It can be hard to determine the provenance of an edition, so anything that can’t be traced directly to the original release could be at risk of a copyright claim. Sometimes a restored version is the only one available.
I’d hate for folks to miss out on your music with this movie. Good luck!
Dear Gary,
My name is Silas Lesnick, and I am the Operations Manager at Flicker Alley. While I appreciate your artistry and love of cinema, I wanted to offer some clarification.
While the original 1925 version of ‘The Lost World’ is, indeed, in the public domain, the version that you have posted to your YouTube account was a substantially restored version, produced by Lobster Films in 2016 and subsequently released by Flicker Alley on Blu-ray. Please understand that this restoration was no small undertaking. It required the skill of a great many dedicated individuals all over the world, each of whom worked for years on end to track down extant materials, adjust speed, repair missing frames, restore original hand coloring, and many other alterations and updates to create the best possible version of the film and, in doing so, help preserve its legacy. The film exists in the state that it does because of the hard work of a great many dedicated individuals who, I can promise you, are not doing this to get rich.
For example, this specific version that you have pirated combines extant materials from Haghefilm, the Czech National Film Archive, the Archive of Modern Conflict, Blackhawk Films, and the Library of Congress. That requires tremendous coordination and teamwork, as well as a significant financial investment. It’s easy to dehumanize Flicker Alley as some big evil company and to look yourself as a YouTube Robin Hood minstrel hero, but that is simply not the reality.
These are actual people that you are stealing from.
As you point out in the closing of your blog post, “Sometimes a restored version is the only one available.”
Precisely.
Restored versions are often the only ones available because of the work put in to do the restoration. There are dozens of hardworking artists whose blood, sweat, and tears went into restoring ‘The Lost World.’ To say that their work shouldn’t have value is not only legally inaccurate, it’s insulting and dehumanizing. You point out that you yourself are not making money on your channel, but what right do you have to steal the hard work done by others? Would you feel the same way if someone took your original score and used it without even bothering to ask (and then went on to publicly vilify you for even daring to question it?)
You clearly chose to score the 2016 restoration because it’s so visually impressive. If you don’t feel that the substantial restoration work done hasn’t any merit, why are you using our version in the first place? Why not just now replace it with an actual public domain iteration?
“While this is possible in principle,” you write, “it would be difficult and perhaps impossible in fact, depending on who holds the film.”
It is interesting how it is suddenly you who are victimized at the thought that some measure of time and effort be dedicated to doing their due diligence.
Sincerely,
Silas
I had doubts about approving your slanderous comment, which repeatedly accuses me of “stealing” and “pirating,” but it exposes a lot about how you think, so I think it’s useful to let others see it, especially since it shows that you’re relying entirely on a theory of copyright which the Supreme Court has invalidated. I thank you for admitting that you are.
You don’t make any claim that the century-old, out-of-copyright movie which I have used is the product of Flicker Alley’s original work. Instead you talk about “coordination and teamwork” and “blood, sweat, and tears.” “Blood”? “Tears”? I’m glad I don’t work for your company, and I feel sorry for the engineers who have to work under such miserable conditions.
But the main point is that bleeding, perspiring, and crying are not the basis for a copyright.
I’ve already cited Feist, which you didn’t attempt to rebut. Bridgeman Art Library v. Corel Corp. in New York State is also relevant for its reasoning. That one deals with photographing works of art and claiming a copyright on them, which is similar to what Flicker Alley is doing. The court held that “slavish copying, although doubtless requiring technical skill and effort, does not qualify” for copyright. The term may be unfortunately, but it fits your own characterization of the working conditions of the restorers. Legally, it means creating a precise copy of the original, which is what the restoration of The Lost World purports to be. You seem unable to distinguish between the amount of originality in creating an hour and a half of music and creating a copy of an out-of-copyright work. You also seem unable to distinguish between legal concerns and Robin Hood fantasies.
Your comment shows the weakness of your claim more clearly than ever. It’s effectively an admission that Flicker Alley has nothing to offer but name calling. I thank you for that.