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Curious about some rare cases where a movie thats copyright has lapsed is brought back into copyright, such as Jimmy Stewart's classic It's a Wonderful Life, where Republic was able to claim copyright based on the film being a derivative work of a story for which it had verifiable copyright.

For the US jurisdiction, are publicity images for this movie, which were frequently released by studios with no discernable copyright markings and would therefore be in the public domain now, affected by the Abend ruling or are these legally orphaned images.

I don't have a horse in this race, just curious.

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    Do you have a specific jurisdiction in mind? US copyright law is ... different. Jun 22 at 13:27
  • Thanks very much for the prod on this - US jurisdiction, I'll amend the original question to include. Jun 22 at 15:35

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The question seems to misunderstand the case of Stewart v. Abend, 495 U.S. 207 (1990) (See the actual opinion.)

First of all, the movie in question was Rear Window, not It's a Wonderful Life but that is a detail. Secondly, the US Supreme Court held the movie company not to have the rights it claimed, and held that showing of the film was copyright infringement unless a new license was granted by the rights holder. It did not hold that the film was in the public domain, nor that it ever had been, nor did it restore protection to the owners of the film.

Cornell Woolrich wrote the story "It Had to Be Murder" which was first published in February, 1942, He sold the4 magazine rights to a company which published it in the magazine Dime Detective. He retained all other rights. He later sold the film rights, and they were eventually purchased by Patron Inc., a production company formed by actor James Stewart and director Alfred Hitchcock. At that time, under the US Copyright Act of 1909, a copyright had to be renewed after 28 years (plus or minus one year) for protection to continue beyond a term of 28 years. At the time of renewal old licenses and transfers were canceled unless a separate agreement covering the renewal term was made. Woolrich agreed to renew the copyright on "It Had to Be Murder" after 28 years, and to then sign a re-assignment of film rights to Patron or its successor.

But Woolrich died in 1968, when "It Had to Be Murder" was not yet eligible for renewal. His estate filed the renewal when it came up, but assigned the film rights to literary agent Sheldon Abend. Abend refused to re-license to Patron. When The movie was re-released in theaters, shown on TV, and distributed on VCR, Abend sued for copyright infringement. (It appears that Abend had demanded 50& of the gross receipts after advertising expenses for a license.)

(There was an earlier suit by Abend which was setteled for $25,000.nd which had no real effect on this case.)

Section 24 of the old US 1909 Copyright act provided that:

[T]he author of [a copyrighted] work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright.

The US Supreme Court held that under Miller Music Corp. v. Charles N. Daniels, Inc., 362 U. S. 373 (an earlier Supreme Court decision) when the author died before a work was renewed, an agreement to assign the renewal term rights was not binding on the author's estate or heirs, and the renewal owner was free to assign it elsewhere. It further held that in such a case the derivative work could not be further used or performed without new permission covering the renewal term. (all this applied only to works originally published under the 1909 act.)

The Court wrote, quoting Miller (at 362 U. S. 378. ):

Until [the time for registration of renewal rights] arrives, assignees of renewal rights take the risk that the rights acquired may never vest in their assignors. A purchaser of such an interest is deprived of nothing. Like all purchasers of contingent interests, he takes subject to the possibility that the contingency may not occur.

The Court further wrote (at 495 U. S. 222-3:

Petitioners maintain that the creation of the "new," i.e., derivative, work extinguishes any right the owner of rights in the preexisting work might have had to sue for infringement that occurs during the renewal term.

We think, as stated in Nimmer on Copyright, that

[t]his conclusion is neither warranted by any express provision of the Copyright Act, nor by the rationale as to the scope of protection achieved in a derivative work. It is moreover contrary to the axiomatic copyright principle that a person may exploit only such copyrighted literary material as he either owns or is licensed to use. [1 Nimmer § 3.07[A], pp. 3-23 to 3-24]

The aspects of a derivative work added by the derivative author are that author's property, but the element drawn from the preexisting work remains on grant from the owner of the preexisting work. See Russell v. Price, 612 F.2d 1123, 1128 (CA9 1979)

The court also quoted 17 USC 103(b) which provides that:

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

In general, once a work has entered the public domain under US law, it will not be restored to copyright, unless a specific law so provides. The Uruguay Round Agreement Act (following the Worlds Trade Organization's Uruguay Round of talks) is one of the few such cases, see 17 USC 104A.

Publicity Images

The question asks:

For the US jurisdiction, are publicity images for this movie, which were frequently released by studios with no discernable copyright markings and would therefore be in the public domain now, affected by the Abend ruling or are these legally orphaned images.

At the time Rear Window was released and indeed throughout the operation of the US 1909 Copyright Act, any text or image published without a copyright notice lost any copyright protection it would otherwise have had. Moreover, there was an understanding that so-called "publicity stills" were distributed under a license allowing them to be freely copied distributed without any additional permission. This was done because the studious wanted such images distributed as widely as possible, thinking them perhaps the most effective form of advertising for the film that they could obtain, and a form that cost little or nothing. One might think of them as being under something like a CC-BY license, even when they did carry a copyright notice. Any publicity stills from the original release would now be in the public domain, or be freely copyable if they carry a notice. Any later publicity stills from any date from any date prior to 1978 (when the 1976 copyright act took effect) would be in the same legal situation.

During the period from 1978-1988, a notice was still required, but publication without a notice could be cured by registration within 5 years of publication. From 1989 onward a notice was not required, and omitting it had no effect on copyright.

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