9

For example, on OpenSubtitles, a website which offers 3.5 million subtitles we can read Disclaimer:

These files are NOT illegal warez downloads, we only offer files that we believe we are free to redistribute.

Therefore when does creating/making open subtitles for commercial movies/TV and publishing it become illegal in First World countries?

Does it depend on the production company (if they agree or their license), format of the file (like IDX+SUB) or something else?

  • Initially posted at Open Source, but it's off-topic there. – kenorb Aug 21 '15 at 13:51
6

Making and sharing and using subtitles for movies is not legal. It is copyright infringement. I paint this statement with a very broad brush.

The movies are copyrighted (they are original and fixed in tangible form). (17 U.S. Code § 102(a))

17 U.S. Code § 106(2) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of derivative works based upon the copyrighted work.

17 U.S. Code § 101 defines derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted....

So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. 17 U.S. Code § 107 provides some examples of fair use:

criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

If these subtitle files are not used for one of these purposes then the creation, sharing, using, and translation is not fair use, it is infringement. (Because only the copyright owner has authority to do those things)

If the files are used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

  • For the purpose of (3), is "the copyrighted work as a whole" the movie or the original script? – Random832 Sep 11 '15 at 19:33
  • With subtitle files it could be either perhaps. The spoken words (what becomes subtitles) are a part of the movie as a whole. The script might be its own work. I suppose it depends on how the subtitles are generated - ie what they are a copy of. But keep in mind that we don't even get to (3) unless the use is one of the enumerated fair use categories (or similar categories as a court may determine). – jqning Sep 11 '15 at 19:40
  • Is transcription different to translation, or the same rule applies? – kenorb Aug 1 '17 at 15:24
  • @kenorb translation is a derivative work, so it's prohibited. – jqning Aug 6 '17 at 21:15
  • Translation is translating from one language into another, however transcription is representation of the same language but in written form (e.g. English subtitles to English-spoken movie). Above cite doesn't mention transcription. – kenorb Aug 6 '17 at 21:21

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.