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.