Note from the editor: the legal information in this articles is out-of-date and should be used for general purposes only.
Many artists and particularly filmmakers wish to use footage or sounds from old movies in their own work. This raises complex copyright issues and, in many cases, will require you obtaining permission.
When thinking of copyright in films many people believe that if a film was made more that fifty years ago, then no copyright exists in it anymore. Unfortunately, the law being what it is, the situation is not that simple.
Prior to 1968, Australian copyright laws did not deal specifically with moving pictures. It wasn’t until the Copyright Act of 1968 (the Act) was introduced that cinematograph films were even mentioned. The Act commenced on 1 May 1969 and specifically provided for copyright protection for films (defined as the aggregate of sound and visual images that make up a film). A film will include feature films, short films documentaries, animations, home video and television commercials. For films made after 1 May 1969, the law is relatively simple. The Act provides that copyright will last for 50 years after the film’s first publication (ie made public). But what about films made before this date?
As the copyright law prior to 1968 didn’t deal with films, strictly speaking, there cannot be any copyright in a pre 1 May 1969 film. But does that mean you can start editing sections of an old film into your new film? Not necessarily. Before you deal in anyway with a pre 1969 film, there are two issues (or groups of issues) which need to be properly considered:
- Whether the film would in fact be treated as a ‘dramatic work’ for copyright purposes; and
- Whether there are other items incorporated in the film which will be protected by copyright.
Will the old film be treated as a ‘dramatic’ work?
Subject to certain conditions (discussed below), a film made prior to 1 May 1969 may be treated as a dramatic work, which means it would be protected by copyright under the Act as a ‘dramatic work’ even though it is a film.
Section 222 of the Act states that where a film made prior to 1 May 1969 falls within the definition of an ‘original dramatic work’ as defined by section 204 of the Act, then it will be treated as a dramatic work for the purposes of the Act.
Section 204 includes a ‘cinematograph production where the arrangement, the acting form or the combination of incidents represented gives the work an original character’. This broad definition will include most old narrative or fiction films but will not include things like news reel footage.
What does it mean to be treated as a ‘dramatic work’ under the Act? It means that the ‘author’ will attract the same rights as a dramatic work including the rights to reproduce the work, the right to publish the work and the right to communicate the work to the public. The film will also then be protected by copyright for the same length of time. Copyright in a dramatic work lasts for the life of the author plus 50 years. The author (s) for this purpose will be the screenwriter and director.
Are there other items in the film which will be protected by copyright?
Even if the old film is not treated as a ‘dramatic work’, it is important to note that copyright treats things which may be incorporated into the film (such as the underlying screenplay, music, lyrics or recordings of songs) as separate from the film itself. So, although there may not be any copyright in a pre 1 May 1969 film, there may be copyright in some underlying element including the screenplay, recordings of music and the individual photographic images in each frame of the film.
When thinking of using an old film for some purpose, each of these need to be considered carefully before you use it. If copyright still subsists in one or more of these items you will need permission to deal with it.
Screenplays and scripts are protected as either literary or dramatic works under the Copyright Act. Copyright in a screenplay will last for the life of it’s author plus 50 years. It is irrelevant whether or not the screenplay was written prior to 1 May 1969. So let’s say you wanted to use part of a film which was made in 1935 based on an script written by a writer who died in 1970. Although there is no copyright in the film itself, copyright would still exist in the underlying screenplay.
Copyright in a sound recording made prior to 1 May 1969 will last for 50 years after its making. Many films include sound recordings in the form of songs the copyright in which will last 50 years after they were made.
Music and Lyrics
Copyright in both music and lyrics will expire 50 years after they were first published.
Individual Frames as Photographs
Each frame from a film will be protected by copyright as a photograph. If the individual frames were shot prior to 1 May 1969 they will be protected by copyright for 50 years after their first publication. Copyright in photographs taken after 1 May 1969 will last for 50 years after they were taken.
Interestingly, where copyright has expired in a film but copyright still exists in literary, dramatic, musical or artistic items in the film, it will not be an infringement of copyright in these items to show the film publicly[i].
Most old narrative films will be regarded as ‘dramatic works’ under the Act. As such, they will attract the same rights as any other dramatic work and copyright will last for the life of the author plus fifty years.
Further, it is important to note that copyright treats things which may be incorporated into the film (such as the underlying screenplay or a recordings of songs) as separate from the film itself and copyright may well subsist in these.
If you are at all unsure about whether or not copyright still subsists in an old film or some item included in the film, seek legal advice.
[i] Copyright Act 1968, Section 110(2)