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

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

#21

Post by joekrill »

teddyh wrote: post #3

> 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…

> 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.

Not at all similar. Linus explicitly made his software free. Romero didn't _intentionally_ exclude the copyright notice, and had no explicit intention of making it free.

> 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.

"completely expected" is quite a stretch. Simply making it public domain wouldn't be enough. It still has to be a good movie. I'm sure there are countless other public domain black-and-white movies that no one has ever heard of.

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

#22

Post by derbOac »

Ecgberht wrote: post #8
teddyh wrote: post #3

> 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…

> If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best. That's a very ungenerous take. The film is very good and was revolutionary for it's time. Check out other horror films from the same era and the tone is completely different. Night of the Living Dead changed what horror films could be. And there's plenty of old black and white movies stil…

I share your perspective; my guess is if it was copyrighted it probably would have had the same status. My guess is it would have been distributed relatively cheaply with the same outcome.

However, I also think it's reasonable to posit it might not have attained the same status had it not gone out of copyright. Easy access can really affect awareness and buzz around films, especially in certain genres like horror.

Horror films were already shifting in tone by 1968. Psycho was a 1960 release, for example, and The Birds was released in 1963. Carnival of Souls has a similar aesthetic as Night of the Living Dead and was released in 1962.

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

#23

Post by dahart »

gus_massa wrote: post #2

Note that it was released in 1968. The law changed since then. From 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…

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.

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

#24

Post by sidewndr46 »

ralferoo wrote: post #14
wodenokoto wrote: post #5

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 redistribu…

I guess stuff like this would have already been thrashed out at the time, but it strikes me that if a mistake by a third party could invalidate copyright, it'd have been trivial to end the copyright on anything by releasing an unauthorised version without a copyright notice. I guess it's complicated because the first release with this title was absent the copyright notice, but the article also says that prints existe…

It isn't the case that a third party mistake can invalidate copyright. But if a third party does so & other groups start treating it as public domain it is on the actual rightsholder to prove they still hold the copyright.

In the case of a self published book, it's pretty obvious. In the case a movie production or otherwise, it gets difficult really fast. Throw in some corporate mergers, acquisitions, & bankruptcies and now you're looking at paying a small team of legal professionals to do research to construct a paper trail for ownership. If the work in question is valuable, obviously it gets done.

In the modern era there is a basically endless stream of video games from a 2-3 decades back where the ownership is completely unclear. The actual video game release rights might be held by one shell company, the video game source code could be held by another group (or even the original author, depending on how lazy people were), and the assets themselves might be held by another group if it was a "branded" or similar content.

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

#25

Post by sidewndr46 »

cobbzilla wrote: post #11
wodenokoto wrote: post #5

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 redistribu…

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.

This is not the case. If registration were required in the US, 99.999999% of software ever written would be effectively public domain.

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

#26

Post by dfxm12 »

derbOac wrote: post #22
Ecgberht wrote: post #8

Earlier quoted context omitted.

> If it was only an old black-and-white movie, still subject to copyright, today the movie would be a historical footnote at best. That's a very ungenerous take. The film is very good and was revolutionary for it's time. Check out other horror films from the same era and the tone is completely different. Night of the Living Dead changed what horror films could be. And there's plenty of old black and white movies stil…

I share your perspective; my guess is if it was copyrighted it probably would have had the same status. My guess is it would have been distributed relatively cheaply with the same outcome. However, I also think it's reasonable to posit it might not have attained the same status had it not gone out of copyright. Easy access can really affect awareness and buzz around films, especially in certain genres like horror. Ho…

The movie invented the zombie genre as we know it today, was made by George Romero, which is a credential in an of itself, and Duane Jones' performance as Ben would stand out today almost as much as it did back then. These points, along with the film being poignant and entertaining as hell would ensure that generation after generation would would keep coming back. Remember, lots of films are out of copyright. Not a lot of such films made as much money or have the staying power as Night of the Living Dead.

On top of this, genre films in general, and horror specifically, if anything, have rabid fans that go out of their way to watch movies because of their genre, regardless of accessibility or buzz. Again, George Romero's involvement alone would make sure that even a passing fan of horror (or budding cinephiles) would seek it out.

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

#27

Post by cobbzilla »

sidewndr46 wrote: post #25
cobbzilla wrote: post #11

Earlier quoted context omitted.

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.

This is not the case. If registration were required in the US, 99.999999% of software ever written would be effectively public domain.

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.

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

#28

Post by NoMoreNicksLeft »

rwmj wrote: post #9
glimshe wrote: post #6

Earlier quoted context omitted.

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.

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.

What if copyright expired in 18 months? Same thing.

14 years made sense when there were wooden printing presses and the fastest communication was a rider and a horse carrying a handwritten letter sealed in wax. They arguably need less time to monetize today than they did back then. Years-long (or, as it is now decades-long and centuries-long) periods are about giving someone the right to tax culture for many generations, not about incentivizing creativity. It undermines the public domain.

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

#29

Post by ndriscoll »

ghaff wrote: post #19
ndriscoll wrote: post #15

Earlier quoted context omitted.

It shouldn't be completely free for the initial period. Require a nominal fee (and registration) to pay for escrow/archive storage so it can be properly released into the public domain when copyright expires.

Registration basically benefits large corporations. There are good reasons why a lot of individual authors oppose orphan works legislation. Disney isn't going to forget or screw up copyright registration. You or your kids might. Totally in favor of shorter copyright terms though even where there are edge cases where longer terms seemingly have made sense. (In terms of promoting progress of the arts, etc. or whatever…

Registration benefits the general public, who are the meant to be the beneficiaries of the whole scheme in the first place. The entire purpose is to generate a larger wealth of public domain material. Registration and escrow ensures this happens.

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

#30

Post by kmoser »

cobbzilla wrote: post #11
wodenokoto wrote: post #5

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 redistribu…

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.

> This error occurred after the film's title was changed from its original moniker Night of the Flesh Eaters. Prints with that title contained the copyright notice, but when new prints were created using the title Night of the Living Dead, the copyright notice was forgotten.

This begs the question: if the original movie was copyrighted, how does releasing the same movie with a different title make the new re-release considered a new (not-yet-copyrighted) work? I thought the copyright protection of the original would extend to the renamed version, since they're 99.99% the same. Theoretically, does changing even one frame necessitate a new copyright?

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