COPYRIGHT / PUBLIC DOMAIN / FAIR USE… (In the Entertainment industry. What does public domain / fair use / copyright mean?)

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COPYRIGHT / PUBLIC DOMAIN / FAIR USE… (In the Entertainment industry. What does public domain / fair use / copyright mean?)

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Public Domain / Fair Use / Copyright

Public domain

As explained by film production manager Eve Light Honthaner, prior to 1989 publicity photos taken to promote a film actor or other celebrity were not usually copyrighted, and were intended to remain free for publications to use wherever possible:

Publicity photos (star headshots) have traditionally not been copyrighted. Since they are disseminated to the public, they are generally considered public domain, and therefore clearance by the studio that produced them is not necessary.

Honathaner distinguishes "Publicity Photos (star headshots)" from "Production Stills (photos taken on the set of the film or TV show during the shooting)", noting that production stills "must be cleared with the studio". Creative Clearance offers the same text as Honathaner, but adds that newer publicity stills may contain a copyright.

In 2007, media lawyer Nancy Wolff, wrote with respect to the "photo archive of entertainment industry publicity pictures, historic still images widely distributed by the studios to advertise and promote their then new releases":

It has been assumed that these images are most likely in the public domain or owned by studios that freely distributed the images without any expectation of compensation. Archives will lend these images for a fee to publishers and producers of documentaries for 'editorial' uses, in keeping with the original intent to publicize the movie or promote the actor. Seeing these images in print years later, some photographers, or their heirs, attempt to assert rights that most believed to be extinguished or abandoned.

As a result, she indicates:

There is a vast body of photographs, including but not limited to publicity stills, that have no notice as to who may have created them.... Without knowing where the photos came from, or what long lost parent may appear and claim the 'orphaned work,' licensing the work becomes risky business. For publishers, museums, and other archives that are risk-averse, this leads to a large body of works that will never be published.

Film historian Gerald Mast explains how the new 1989 copyright revisions only protected publicity works that complied with all earlier requirements in addition to filing a copyright registration within 5 years of first publication:

According to the old copyright act, such production stills were not automatically copyrighted as part of the film and required separate copyrights as photographic stills. The new copyright act similarly excludes the production still from automatic copyright but gives the film's copyright owner a five-year period in which to copyright the stills. Most studios have never bothered to copyright these stills because they were happy to see them pass into the public domain, to be used by as many people in as many publications as possible."

In the 2011 Eighth Circuit case Warner Bros. Entertainment v. X One X Productions, the court recognized that a selection of publicity stills from two 1939 films were in the public domain because they had not been published with the required notice, or because their copyrights had not been renewed. Although Warner Bros. argued otherwise, the court found that these stills did not share the films' valid copyrights, and that the images' dissemination constituted general publication without notice. Other arguments related to derivative uses of the images were upheld, and an injunction against X One X was granted because certain "products combining extracts from the public domain materials in a new arrangement infringe the copyright in the corresponding film". The decision quoted from Nimmer on Copyright, which explains that, while films were generally registered for copyright protection, "much less care was typically exercised during production and in the publicity office" with photographs taken of the actors on set being "sent off to newspapers before the film’s release, in order to generate a buzz about its opening."

Fair use

Kristin Thompson, reporting as the chair of an ad hoc committee on fair use organized by the Society for Cinema and Media Studies, contends "that it is not necessary for authors to request permission to reproduce frame enlargements . . . and some trade presses that publish educational and scholarly film books also take the position that permission is not necessary for reproducing frame enlargements and publicity photographs."

Thompson also notes that even if such images are not already public domain, they could be considered "fair use" under provisions of US law:

Most frame enlargements are reproduced in books that clearly fall into the first provision's categories of "teaching," "criticism," "scholarship," or "research," and hence there seems little doubt that such illustrations would qualify as fair use by this criterion. Since most university presses are nonprofit institutions, illustrations in their books and journals would be more likely to fall into the fair-use category than would publications by more commercial presses.

In addition, Thompson refers to the argument that the burden of proof of copyright for such publicity images would fall on the studios producing them:

One important argument has been made concerning the publication of publicity photographs. If such a photograph has been circulated for publication at some point and reproduced without a copyright notice accompanying it, it should then fall within the public domain. Throughout the history of the cinema, many publicity photos have appeared in newspapers and magazines without such notices. If a scholar or educator were to publish a publicity photo, the burden of proof would then fall on the studio or distributor to prove that the still had never been published without the copyright notice.

United States Copyright Office

The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States, including a Copyright Catalog. It is used by copyright title searchers who are attempting to clear a chain of title for copyrighted works.

The Copyright Office is housed on the fourth floor of the James Madison Memorial Building of the Library of Congress, at 101 Independence Avenue, SE, in Washington, DC.

History

The United States Constitution gives Congress the power to enact laws establishing a system of copyright in the United States, and the Copyright Act of 1790, the first federal copyright law, was enacted in May 1790 (with the first work being registered within two weeks). Originally, claims were recorded by Clerks of U.S. district courts. In 1870, copyright functions were centralized in the Library of Congress under the direction of the then Librarian of Congress Ainsworth Rand Spofford. The Copyright Office became a separate department of the Library of Congress in 1897, and Thorvald Solberg was appointed the first Register of Copyrights.

Administering the copyright law

The Office examines all applications and deposits presented for registration of original and renewal copyright claims to determine their acceptability for registration under the provisions of the copyright law. The Office also records documents related to copyright ownership.

The Copyright Office records the bibliographic descriptions and the copyright facts of all works registered. The archives maintained by the Copyright Office are an important record of America’s cultural and historical heritage. Containing nearly 45 million individual cards, the Copyright Card Catalog housed in the James Madison Memorial Building comprises an index to copyright registrations in the United States from 1870 through 1977. Records after 1977 are maintained through an online database of more than 16 million entries.

As a service unit of the Library of Congress, the Copyright Office is part of the legislative branch of government. The Office provides copyright policy advice to Congress. At the request of Congress, the Copyright Office advises and assists the Congress in the development of national and international copyright policy; drafts legislation; and prepares technical studies on copyright-related matters.

The Compendium of U.S. Copyright Office Practices manual documents the Copyright Office's practices in its administration of copyright law.

A new fee schedule for certain Office services is effective as of May 1, 2014. The Copyright office’s fees were last updated in 2009. Fees increased for certain registration and recordation and associated services, as well as certain search and review services for FOIA requests Freedom of Information Act (United States). In May 2014, the Office also reduced some renewal application and addendum fees in an effort to “encourage the filing of more renewal claims” and thereby help improve public records about copyright ownership.

Providing information services to the public

The Copyright Office provides public information and reference services concerning copyrights and recorded documents. The public can keep up on developments in the Copyright Office by subscribing to U.S. Copyright Office NewsNet, a free electronic mailing list that issues periodic email messages to alert subscribers to hearings, deadlines for comments, new and proposed regulations, new publications, and other copyright-related subjects of interest. Subscribe on the Copyright Office website.

Library of Congress

In 1870, Congress passed a law that centralized the copyright system in the Library of Congress. This law required all owners of copyrights of publicly distributed works to deposit in the Library two copies of every such work registered in the United States, whether it is a book, pamphlet, map, print, or piece of music. Supplying the information needs of the Congress, the Library of Congress has become the world’s largest library and the de facto national library of the United States. This repository of more than 162 million books, photographs, maps, films, documents, sound recordings, computer programs, and other items has grown largely through the operations of the copyright system, which brings deposits of every copyrighted work into the Library.

Duties

The Copyright Office consults with interested copyright owners, industry and library representatives, bar associations, and other interested parties on issues related to the copyright law.

The Copyright Office promotes improved copyright protection for U.S. creative works abroad through its International Copyright Institute. Created within the Copyright Office by Congress in 1988, the International Copyright Institute provides training for high-level officials from developing and newly industrialized countries and encourages development of effective intellectual property laws and enforcement overseas.

The website has information about new copyright relevant legislation and a list of designated agents under the Digital Millennium Copyright Act (DMCA) and the Online Copyright Infringement Liability Limitation Act (OCILLA) and information about Copyright Arbitration Royalty Panel (CARP) system of ad hoc copyright royalty arbitrators (now being phased out and replaced by the Copyright Royalty Board).

Sources, References & Credits: Google, Wikipedia, Wikihow, Pinterest, IMDB, Linked In, Indie Wire, Film Making Stuff, Hiive, Film Daily, New York Film Academy, The Balance, The Numbers, Film Maker, TV Guide Magazine, Media Match, Quora, Creative Skill Set, Investopedia, Variety, No Film School, Daily Variety, The Film Agency, Best Sample Resume, How Stuff Works, Career Trend, Producer's Code of Credits, Producers Guild of America, Film Connection, Entertainment Careers, Adhere Creative, In Deed, Glass Door, Pay Scale, Merriam-Webster, Job Monkey, Studio Binder, The Collective, Production Hub, The Producer's Business Handbook by John J. Lee Jr., Honathaner, Eve Light. The Complete Film Production Handbook,  Brian Dzyak (2010). What I Really Want to Do on Set in Hollywood: A Guide to Real Jobs in the Film Industry, Andrew Dawson; Sean Holmes (2 August 2012). Working in the Global Film and Television Industries: Creativity, Systems, Space, Patronage, Clearance Guidelines for Producers, Mast, Gerald. "Film Study and the Copyright Law", from Cinema Journal, http://www.wga.org/, https://www.copyright.gov/,

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