Using Films in Other Films: Copyright Issues and the Public Domain

The basic answer to their question is, if the older film is protected by copyright, then use of a clip from that film in another film would require permission and, possibly, payment. There is, however, a provision in the copyright law that might have bearing on the situation, depending primarily on the type of film the new film it is and how much of the first film is used.

The law allows for "fair use" of copyrighted material without permission or fee under certain circumstances. The copyright act doesn't define fair use but provides four factors that a court can consider if infringement is alleged: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the potential effect on the market for the copyrighted work. If the use is intended for news reporting or educational purposes and the amount taken is small, then the potential user is at least half way toward fair use. If, however, the use is for commercial purposes, such as a movie people will pay to see or that the filmmaker has been paid to make, then the road toward fair use is much, much harder.

Another possibility for filmmakers is to use films that are no longer protected by copyright, that have fallen into what is called the public domain. There are some very good films that have that status. Public domain material can be used without permission or payment. Films (as well as any copyrighted materials) fall into the public domain when their age passes the number of years that copyright protection lasts or they violate the requirements of copyright law. Under the Copyright Act of 1908, which governed works made until the new law 64 years later, copyright protection required  registration and was provided for 28 years and could be extended for another 28 years if the copyright owner filed a renewal. The Copyright Act of 1976 eliminated registration and renewal and established that copyright begins when the work is fixed in a tangible medium  and ends 50 years after the death of the author or 75 years after publication for work of corporate authorship. The Sonny Bono Copyright Extension Act of 1998  extended the term of copyright to end 75 years after the death of an author and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever is shorter. Protection for works published before January 1, 1998  was extended by 20 years to a total of 95 years from the first publication date. The 1998 law was largely seen as the result of lobbying from such companies as Disney and the estate of Margaret Mitchell, author of Gone with the Wind, whose works were set to enter the public domain.

The result of all of this is a rule of thumb that works published before before 1923 most likely fell into the public domain before the 1998 Act. Thanks to the 1998 extension act, no new works will fall into the public domain until 2019 when works published in 1923 will do so. Those published in 1924 will lose their copyright in 2020 and so on.

Films made before 1923 are almost all silent, sound not being commercially introduced until 1926. There are also later silent films that are in the public domain because the copyright was not renewed as required by the 1908 law, including such classics as Charlie Chaplin's The Gold Rush (1925) and Buster Keaton's The General.(1926.) (Both of these, however, were issued in later versions with sound, so only the original prints are in the public domain.) These silent films would seem to be a good properties for filmmakers to use without permission or payment. Filmmakers can add music to these silent films, cut them, or add to them as long as they credit the original work. But, if the filmmaker just wants to use a clip from a silent film, can't afford to add music, and wants to use an existing VHS or DVD of a silent film, he or she needs to know that the music that has been added is likely protected by copyright. If the old print has been restored, the restoration may be protected by copyright.

There are also more recent films that have fallen into the public domain because the copyright wasn't renewed or the film didn't carry the requisite copyright notice as also required by the 1908 act. These include a number of well-known films, including William Wellman's A Star Is Born (1937), starring Janet Gaynor and Frederic March, whose copyright wasn't renewed; Richard Brooks' The Last Time I Saw Paris (1954) starring Van Johnson and Elizabeth Taylor and based on an F. Scott Fitzgerald story, which had an incorrect copyright date that caused the owners not to file timely renewal; Roger Corman's Little Shop of Horrors (1960) starring Jack Nicholson, which was never copyrighted; Stanley Donen's Charade (1963) starring Cary Grant and Audrey Hepburn, which lacked the proper copyright notice; McLintock (1963) starring John Wayne and Maureen O'Hara, whose copyright was never renewed; and George A. Romero's seminal zombie film The Night of the Living Dead (1968), which lacked the proper copyright notice. There are many others, which can be found through Internet searches

These films may appear attractive to filmmakers. The Night of the Living Dead is often seen playing on  television sets in low-budget films. But they should be approached with caution and only after consultation with an intellectual property attorney. For one thing, while the films may be in the public domain, there may be other worrisome aspect of law such as an actor's right of publicity under some states' law that could raise legal concern. For another, in the case of McLintock and Charade, while the films themselves are in the public domain, the copyright of the music was filed separately and renewed. Therefore, any clip that includes music might raise issues of infringement. For still another thing, some films like His Girl Friday (1940) are in the public domain, but they were based on plays or novels that are still protected by copyright and whose protection covers derivative works like films. Finally, there is once again the question of prints. Because these films are in the public domain, versions that are available have often been made copies from copies from copies and are of poor quality. This may discourage filmmakers from using them. Or the filmmakers may locate restored copies that have been available for sale, and, once again those restorations may have copyright protection. Both problems could be largely avoided by locating an original print--if that is possible.

Public domain films are attractive avenues for filmmakers to consider using. But their status has to be firmly determined, as does which clips can safely be used.

And, starting in 2019, new works will once again be entering the public domain.

Copyright 2018 by John T. Aquino. This article does not constitute legal advice.