7 ms·

"Night of the Living Dead" accidentally became public domain (2019)

76 points by edavis 1y ago

gus_massa 1y ago
Note that it was released in 1968. The law changed since then. From https://en.wikipedia.org/wiki/Copyright_notice https://en.wikipedia.org/wiki/Copyright_notice > For works first published on or after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published from January 1, 1978, to February 28, 1989, could have resulted in the loss of copyright protection if corrective steps were not taken within a certain amount of time. Works published before January 1, 1978, are governed by the 1909 Copyright Act. Under that law, if a work was published under the copyright owner's authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.
- dahart 1y ago
  This March 1 1989 date is when the adoption of the Berne Convention took effect in the US, the Berne Convention being what brings the notion that registration should not be required in order to have legal copyright protections. European artists had that protection for ~100 years at that point. Most countries in the world have adopted the Berne Convention, though I learned fairly recently here on HN that the US is still leaving out a few important bits like the right to sue for statutory damages unless copyrights are registered.
  - bluGill 1y ago
    You can sue for damages if you don't have the copyright registered in the US. If you have the copyright registered you can sue for triple damages. (according to my mandatory company copyright training, a real lawyer is welcome to correct me) Edit: I just remembered that you cannot sue if your copyright is not registered - but you don't have to register until just before you sue. Triple damages applies to anything that happens after the copyright is registered, but that is the only difference it makes.
    - tzs 1y ago
      I think your training may have confused copyrights, patents, and trademarks. Patent law allows triple damages in the case of willful infringement, and trademark allows triple damages in the case of a counterfeit mark that the infringer knew was counterfeit. Copyright does have some things that can increase a damage award but there is no real triple damages mechanism. The plaintiff in copyright gets a choice. They can ask for either: • The actual damages plus the profits that the infringer made from the infringement. The latter is only to the extent that the infringer's profits exceeded the actual damages. E.g., if you lost $100k due to infringement and the infringer made $70k your damages would be $100k. But if the infringer made $120k your damages would be $120k (the $100k you lost plus the $20k the infringer made over $100k). • Statutory damages. It is often very hard to figure out actual damages so the law allows an alternative. If you elect statutory damages the damages range from $750 to $30000 per work infringed. The amount is determined by the judge or jury. They can be decreased to as low as $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright". They can be increase up to $150000 if the infringement is found to be willful. This is the closest thing copyright as to triple damages. The way registration affects all of this is: • You have to register before filing a copyright lawsuit. There are some exceptions such as when a foreign copyright owner wants to sue over a work not published in the US but infringed in the US, due to Berne Convention requirements but we can ignore those here. • You can only collect statutory damages for infringement that commences after registration (unless the registration is within 3 months of first publication). • You can collect actual damages and infringer profits from infringement before registration.
teddyh 1y ago
> Night of the Living Dead's copyright snafu ended up costing him untold amounts of money in both the short and long term. This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way. > Somewhat ironically though, it's Night of the Living Dead's freely available nature that helped it become the revered classic it is today, as easy access and constant TV airings ensured that more and more people saw the film. It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.
- dublinben 1y ago
  This is exactly the same way that It’s A Wonderful Life became a much-revered Christmas classic. If the copyright hadn’t expired allowing monthlong TV marathons, it would have faded into obscurity. How many people remember The Best Years of Our Lives, which beat it out for multiple Oscars in 1947?
  - glimshe 1y ago
    What is the middle ground? Everybody knows that "free" has a huge appeal. But so does low cost, which arguably vastly reduced piracy for older movies and music. It seems that content providers found ways to unlock content by paying creators fractions of a cent. It would be cool if there was a standard way to acquire license for older content for very little without dealing with the copyright headaches.
    - rwmj 1y ago
      Copyrighted and then falls into the public domain after 14 years. Plenty of time to monetize, then benefits the public after a relatively short people of time.
      - conception 1y ago
        Or you get 10-14 years for free and after that you pay for it and it gets more and more expensive the older it is. Disney can keep their mouse but after 90 years its 100M. 91? 105M. Etc. If it’s not worth the price, let it go.
wodenokoto 1y ago
Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain? I remember a long time ago a language study startup called smart.fm released their material on RSS under a copy left license. Problem was that they didn’t mean to give it away, but worse, they didn’t have the license to relicense the material like that. I kinda wonder where that puts redistribution of that material.
- cobbzilla 1y ago
  It wasn’t a relicense, the copyright was never validly filed (date was missing), so the copyright was never registered. Only registered copyrights can be enforced in the US. No registration, no enforcement rights. Or at least that’s my layman’s understanding, happy to be corrected.
  - sidewndr46 1y ago
    This is not the case. If registration were required in the US, 99.999999% of software ever written would be effectively public domain.
    - cobbzilla 1y ago
      99.9999999% of software written is not published, it’s covered by trade secret law. Copyright only applies to published works. Look into what happens legally when source code is leaked and published.
      - sidewndr46 1y ago
        If copyright applies only to my published works, this would mean as long as you steal my laptop you now own the works on it. I'm certainly not publishing my diaries on the internet. This has not been true for a very long time.
      - graemep 1y ago
        its covered by trade secret and copyright. Software can simultaneously be covered by copyright, trade secret and patents. The patents have to disclose some info, of course. Even when distributed you can distribute just the binary, and keep the source a trade secret.
Malic 1y ago
The same thing happened to the 1963 movie "Charade" (with Cary Grant and Audrey Hepburn): https://en.wikipedia.org/wiki/Charade_(1963_film)#Public-domain_status https://en.wikipedia.org/wiki/Charade_(1963_film)#Public-dom...
nico 1y ago
It’s wild that copyright lasts this long (life of author + 70 years after death)
- hinkley 1y ago
  Who's the leader of the club that's made for you and me? M I C K E Y, M O U S E
mathgeek 1y ago
> an unfortunate error accidentally made it public domain Never have I been so torn on my opinion of whether or not this was truly “unfortunate”.
- johnea 1y ago
  I'm not torn at all, I would say going to public domain is exactly what should have happened. Here in SoCal, our past senator cosponsored the DMCA (aka Disney Millennium Copyright Act) to benefit her long time contributor. Once authors are dead, works should enter public domain. The "industry" has pushed back this basic principle for many years. I often say, the only reason "classical music" is even a known thing is because it's not subject to copyright, and orchestras can perform it royalty free. There will be no such thing with modern media...
aaron695 1y ago
[dead]

76 points by edavis 1y ago

Note that it was released in 1968. The law changed since then. From https://en.wikipedia.org/wiki/Copyright_notice https://en.wikipedia.org/wiki/Copyright_notice > For works first published on or after March 1, 1989, use of the copyright notice is optional. Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published from January 1, 1978, to February 28, 1989, could have resulted in the loss of copyright protection if corrective steps were not taken within a certain amount of time. Works published before January 1, 1978, are governed by the 1909 Copyright Act. Under that law, if a work was published under the copyright owner's authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.

dahart 1y ago
This March 1 1989 date is when the adoption of the Berne Convention took effect in the US, the Berne Convention being what brings the notion that registration should not be required in order to have legal copyright protections. European artists had that protection for ~100 years at that point. Most countries in the world have adopted the Berne Convention, though I learned fairly recently here on HN that the US is still leaving out a few important bits like the right to sue for statutory damages unless copyrights are registered.
- bluGill 1y ago
  You can sue for damages if you don't have the copyright registered in the US. If you have the copyright registered you can sue for triple damages. (according to my mandatory company copyright training, a real lawyer is welcome to correct me) Edit: I just remembered that you cannot sue if your copyright is not registered - but you don't have to register until just before you sue. Triple damages applies to anything that happens after the copyright is registered, but that is the only difference it makes.
  - tzs 1y ago
    I think your training may have confused copyrights, patents, and trademarks. Patent law allows triple damages in the case of willful infringement, and trademark allows triple damages in the case of a counterfeit mark that the infringer knew was counterfeit. Copyright does have some things that can increase a damage award but there is no real triple damages mechanism. The plaintiff in copyright gets a choice. They can ask for either: • The actual damages plus the profits that the infringer made from the infringement. The latter is only to the extent that the infringer's profits exceeded the actual damages. E.g., if you lost $100k due to infringement and the infringer made $70k your damages would be $100k. But if the infringer made $120k your damages would be $120k (the $100k you lost plus the $20k the infringer made over $100k). • Statutory damages. It is often very hard to figure out actual damages so the law allows an alternative. If you elect statutory damages the damages range from $750 to $30000 per work infringed. The amount is determined by the judge or jury. They can be decreased to as low as $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright". They can be increase up to $150000 if the infringement is found to be willful. This is the closest thing copyright as to triple damages. The way registration affects all of this is: • You have to register before filing a copyright lawsuit. There are some exceptions such as when a foreign copyright owner wants to sue over a work not published in the US but infringed in the US, due to Berne Convention requirements but we can ignore those here. • You can only collect statutory damages for infringement that commences after registration (unless the registration is within 3 months of first publication). • You can collect actual damages and infringer profits from infringement before registration.

teddyh 1y ago

> Night of the Living Dead's copyright snafu ended up costing him untold amounts of money in both the short and long term. This has strong vibes of “If only Linus Torvalds had charged for Linux, he would have been a rich man today.”. It does not work that way. > Somewhat ironically though, it's Night of the Living Dead's freely available nature that helped it become the revered classic it is today, as easy access and constant TV airings ensured that more and more people saw the film. It’s not “ironic”, it’s completely expected. If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best.

dublinben 1y ago
This is exactly the same way that It’s A Wonderful Life became a much-revered Christmas classic. If the copyright hadn’t expired allowing monthlong TV marathons, it would have faded into obscurity. How many people remember The Best Years of Our Lives, which beat it out for multiple Oscars in 1947?
- glimshe 1y ago
  What is the middle ground? Everybody knows that "free" has a huge appeal. But so does low cost, which arguably vastly reduced piracy for older movies and music. It seems that content providers found ways to unlock content by paying creators fractions of a cent. It would be cool if there was a standard way to acquire license for older content for very little without dealing with the copyright headaches.
  - rwmj 1y ago
    Copyrighted and then falls into the public domain after 14 years. Plenty of time to monetize, then benefits the public after a relatively short people of time.
    - conception 1y ago
      Or you get 10-14 years for free and after that you pay for it and it gets more and more expensive the older it is. Disney can keep their mouse but after 90 years its 100M. 91? 105M. Etc. If it’s not worth the price, let it go.

wodenokoto 1y ago

Did the distributor really have sufficient ownership of the movie to release a minor altered version into the public domain? I remember a long time ago a language study startup called smart.fm released their material on RSS under a copy left license. Problem was that they didn’t mean to give it away, but worse, they didn’t have the license to relicense the material like that. I kinda wonder where that puts redistribution of that material.

cobbzilla 1y ago
It wasn’t a relicense, the copyright was never validly filed (date was missing), so the copyright was never registered. Only registered copyrights can be enforced in the US. No registration, no enforcement rights. Or at least that’s my layman’s understanding, happy to be corrected.
- sidewndr46 1y ago
  This is not the case. If registration were required in the US, 99.999999% of software ever written would be effectively public domain.
  - cobbzilla 1y ago
    99.9999999% of software written is not published, it’s covered by trade secret law. Copyright only applies to published works. Look into what happens legally when source code is leaked and published.
    - sidewndr46 1y ago
      If copyright applies only to my published works, this would mean as long as you steal my laptop you now own the works on it. I'm certainly not publishing my diaries on the internet. This has not been true for a very long time.
    - graemep 1y ago
      its covered by trade secret and copyright. Software can simultaneously be covered by copyright, trade secret and patents. The patents have to disclose some info, of course. Even when distributed you can distribute just the binary, and keep the source a trade secret.

Malic 1y ago

The same thing happened to the 1963 movie "Charade" (with Cary Grant and Audrey Hepburn): https://en.wikipedia.org/wiki/Charade_(1963_film)#Public-domain_status https://en.wikipedia.org/wiki/Charade_(1963_film)#Public-dom...

nico 1y ago

It’s wild that copyright lasts this long (life of author + 70 years after death)

hinkley 1y ago
Who's the leader of the club that's made for you and me? M I C K E Y, M O U S E

mathgeek 1y ago

> an unfortunate error accidentally made it public domain Never have I been so torn on my opinion of whether or not this was truly “unfortunate”.

johnea 1y ago
I'm not torn at all, I would say going to public domain is exactly what should have happened. Here in SoCal, our past senator cosponsored the DMCA (aka Disney Millennium Copyright Act) to benefit her long time contributor. Once authors are dead, works should enter public domain. The "industry" has pushed back this basic principle for many years. I often say, the only reason "classical music" is even a known thing is because it's not subject to copyright, and orchestras can perform it royalty free. There will be no such thing with modern media...

aaron695 1y ago

[dead]