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This topic comprises 3 pages: 1 2 3
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Author
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Topic: Warner Bros and collectors/private prints repertory
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Frank Angel
Film God
Posts: 5305
From: Brooklyn NY USA
Registered: Dec 1999
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posted 05-03-2018 06:24 PM
It's the the studio lawyers who spur on this nonsense about going after collectors. Nonsense because it has already been litigated to death, and the collectors have won....theoretically. Way back with the well-known Roddy McDowall case, where he had a library of prints (mostly 16mm, if I remember correctly, but some 35mm) and he was raided and the collection confiscated. Fox and I believe Disney were the plaintiffs claiming that since they never sell their prints, anyone who has one is his or her possession, de facto, has stolen property. Studios lost, but even so, it broke McDowall.
Roddy's lawyers we able to show that studios lose track of prints all the time, lots thru giving them to directors and high profile actors; property rights in those cases are transferred outright with no encumbrances, so those prints can be sold, given away or whatever, and down the line, whoever winds up with them, possess them legally.
Lots of 35mm prints are ALSO lost thru just being misplaced and back in the day, there was very little diligence on the part of the studios to contractually have prints physically destroyed the way they did in the later decades with the threat of bootlegging for video copying.
Many prints were intercepted at the distribution depot when they were earmarked for "disposal" rather than "destruction." Depots like National Screen Service in Fort Lee NJ would simply send prints to the land fill, whole. Back then there was no effort on the part of a studio to find a lost print; that print can be legally be considered "abandoned" and the one-time owner, the studio, loses property rights. Not copyright protection, but ownership of the physical print.
The legal issue was that the studios couldn't prove that they had taken any actions to show that they intended to retain control or ownership over abandoned physical prints. Once that precedent was established, it did lead to their becoming more involved with requiring prints to be physically destroyed before sending them to the land-fill as piracy became a real issue (band-sawing or water soaking or whatever), but in the early BV (before video) days, there was little concern about what happened to the occasional lost print.
There is the legendary Projectionist Union boss who had a theatre setup in this home and would "order" prints of titles he wanted from the National Screen Service in Fort Lee. Those prints would get "lost," and wind up in his collection. It was so blatant that should he get a print that was not pristine, i.e., no scratches or splices, he'd send it back and get tell them to send him a better one. He had mag installed so all the titles released in mag were in his collection. I always wondered who got that collection after he passed. Point being, the studios never did have total control of their print inventory.
These facts showed definitely that the studios do in fact let prints out to others in the industry so it quashed their claim that they retain ownership of every print ever struck of their titles and especially it disproved their claim that every collector is in possession of the studios' property.
Then they got the Feds involved -- you know, the FBI who the studios use as their own personal police force. The studios claimed that anyone who owns one of their prints is in violation of copyright protection. This is even more absurd than their claim about property rights visa vie their prints.
Copyright protection has nothing to do with physical ownership of print material itself; the collector is neither copying the copyrighted title nor is he screening it publicly. There may be some question as to whether or not screening it all, even in the privacy of one's home, can be considered an infringement, but unless an FBI agent can come into your home and witness you while you are screening it....an unlikely scenario, and to what end?
Given the McDowall ruling, it is just absurd that studios are still thinking old school about collectors. If you remember, it had gotten so bizarre that for a time, studios were even coming after people on ebay who were selling TRAILERS. A Universal lawyer actually threatening legal action against an ebay seller, demanding that he immediately send the trailer back to his office at Universal City, claiming that all trailers of Universal titles remained the property of Universal Pictures. I think I suggested here on Film-Tech that every projectionist go to the ETB (Expired Trailer Bin) -- you know, that box in the corner of your booth, filled to overflowing with trailers waiting to be junked -- and we should all mail them all back to the lawyer's office...COD.If everyone started returning trailers to the studio offices, they would abandon THAT claim fast enough.
If there were any logic to this movie business, studios would see that there is nothing to gain to be persnickety about what media a theatre is using to present their older titles, other than the money -- and as long as they are getting some, shut up, why don't they?
The only reason anyone one is still objecting to media swap (we book a blu-ray but then run a collector's 35mm print) is, I suspect, something the studio lawyers do just to make it look like they are earning their salaries.
That said, anyone who understands the legal system knows that, sure, you can be totally in the right, but who wants to go up against a battery of high-priced lawyers who can stall and play legal games until you run out of money? Very few, if any, collectors have the monetary resources or are willing to take a second mortgage on their house, just to fight such court battle, even if they are in the right.
It is no wonder collectors only want to loan prints to art houses with the proviso that the theatre properly book the title on whatever medium the studio has available and then the theatre be sure to have the loan remain on the down low -- at the very least, this is probably a legal gray area, regardless of the McDowell case, so it certainly is prudent not to kick the sleeping rototiller.
PS -- I also think the studios don't like it rubbed in their faces that some "nobody" who is not part of their elite Hollywood clique, has a print, probably in better condition that any print they are able to provide. For example, I know of a collector that has a slew of IBTech WB Merry Melody cartoons that he rescued from a dumpster. WB has no such animal. This collector also has a beautiful, UNCUT version of Paramount's LONG DAY'S JOURNEY INTO NIGHT (silvered emulsion) -- the studio (years ago) only had cut prints with almost 30 min missing. Although, as has been mentioned, they do have a very conscientious Classics Department -- that situation may have been remedied at some point since then.
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Frank Angel
Film God
Posts: 5305
From: Brooklyn NY USA
Registered: Dec 1999
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posted 05-04-2018 02:32 AM
Ah...and therein, the caveat -- how does a collector "prove" the print in his possession is not stolen, especially if some old-school studio lawyer or studio executive decides today is the day he wants to punish some nobody of a collector and make that SOB squirm and suffer. His sics the lawyers to go after this collector, not because that exec thinks the studio will win in court, but just because in his heart-of-hearts, he believes that NO ONE other than their own in-crowd top directors, DPs, studio execs and A-list actors should be able to own prints of the studio's titles. If that nobody collector dares to embarrass the studio by offering a print to an exhibitor that the studio itself can't come up with, then bygawd, then they will claim it is stolen or at the very least, its somehow illegal and if it isn't illegal, then it should be. That's always their first knee-jerk reaction whenever they hear the hear, "a film collector has a 35mm print..." and all of a sudden they come down with Touretts Syndrome on the phone.
That collector had better get it in writing that the studo/distributor will hold said collector harmless and that it will not now or in the future make any claim of ownership of the print and it acknowledges the collector's right to own that physical print and that it belongs to the collector outright and unencumbered. The collector in that same statement should acknowledge the photoplay recorded on the 35mm film print is copyrighted by the studio to which they retain full copyright protection and will be exhibited only with the permission of the studio/distributor. The collector also acknowlegand thus the print will only be exhibited publicly with the permission of studio. Screening conditions and payment for same will be made by standard industry contract between the exhibitor and the distributor; all guarantees, percentage and overage payments will be the sole responsibility of the exhibitor. The collector will not be held liable for any exhibition fees or payments.
If the collector can get that kind of an agreement in writing, then sure, let him loan out his print, but as far as a crisis being averted, even with an agreement signed, sealed and delivered by a lawyer, I STILL would not be convinced that crisis wasn't lurking just around the corner.
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Leo Enticknap
Film God
Posts: 7474
From: Loma Linda, CA
Registered: Jul 2000
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posted 05-04-2018 11:10 AM
That's what this entire thread, and the legal persecution of collectors in the 1970s and '80s, was about. The studios knew that they had a weak to zero case on the copyright angle, as long as the collectors did not try to make money out of the prints in their possession. So they took a different line, arguing that because studios never sold 35mm prints outright to consumers, any private individual in possession of one was de facto in possession of stolen property.
This claim also failed in court: the collectors' defense was that property that is discarded or abandoned is not stolen, and they were able to show that studios routinely discarded and abandoned 35mm feature film prints, without making a serious attempt to destroy them first. By finding and taking possession of abandoned property, you are not stealing it.
As Frank and others have noted, a collector very likely has the law on his or her side when lending a print for a public screening, as long as (s)he insists, and requires written proof of, that screening having been licensed by the copyright owner (or their authorized licensee). But given the forty-year history of the persecution of film collectors by the major studios (for more on this, see Segrave, Piracy in the Motion Picture Industry), it's not surprising that many are very reluctant to work with exhibitors or even the major nonprofit archives. I have heard of collectors asking archives to sign NDAs before lending their elements for preservation duping.
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Marcel Birgelen
Film God
Posts: 3357
From: Maastricht, Limburg, Netherlands
Registered: Feb 2012
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posted 05-07-2018 01:51 AM
The United States used to have a pretty unique element in their copyright law. You were required to register a copy of your original work at the Copyright Office in order to be able to claim copyright on an original work.
Since the overhead for the Copyright Office became too large, they dropped this requirement and replaced it with an implicit copyright. So, anything original you create is automatically covered by copyright as long as you explicitly claim it (therefore you'll see all the copyright notices everywhere).
I think it would be a great idea if we bring back this "archival requirement" for copyrights on motion pictures. So, in order to claim copyright on a motion picture or any given version of a motion picture, you're required to file an exact, high quality copy of this version at one of the "registered archives".
Those "registered archives" can be any archives that conform to a certain, strict set of rules. Those archives are allowed to make copies of any registered "print" and would be allowed to share them with other "registered archives" for archival purposes.
So, in essence, any "professional" film collector could register to become an "registered archive", as long as he/she abides to the rules and would be able to legally own "prints", both on film and digitally.
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Frank Angel
Film God
Posts: 5305
From: Brooklyn NY USA
Registered: Dec 1999
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posted 05-07-2018 02:42 AM
You do the best you can to not step into the murky waters of copyright infringement, for example...
Back in the late 80s, we had gotten a hold of a beautiful, mint condition, IBTech of LA BOHEME -- the full opera with Franco Zeferelli as staging/art director and Herbert Von Karajan conducting Mirella Freni and Gianni Raimondi. It's a superb filming of the Puccini work using locations in Milan and Lonbardia, Italy. It was a natural for us as we are part of a performing arts center. It was released by Warner Brothers and if you can believe the 1 sheet I was able to locate, it was treated as a very special opera-like engagement, only playing two nights at 8pm.
At the time, Warners had a very good classics dept and we had an extremely good working relationship with the NY office (those were the days!) so we were able to book almost anything with them. In fact, we were used to do repair work on some of their classic prints in lieu of a guarantee, so I wasn't anticipating having any trouble getting rights to run this collector's print.
But when I contacted Warners, I was told they never had prints, never owned exhibition rights and had no record of it ever being one of their releases; they said it was not copyrighted by them either. Yet, there it was, the WB logo at the very head of R1, printed as part of the body of the print with no splices -- not even a lab splice. Ok, so WB claimed no ownership at all...even claimed they never book it into theatres.
Back then there was no IMDB so finding company entanglements to get exhibition rights was not easy, especially since the studio basically said, "Don't talk to us about it. Go away." Under the booth magnifying glass at the rewind table I was able to see the copyright notice was held, at least when the film was made, by the La Scala Opera Company. OK, so I wrote to La Scala asking if we could screen the print and gave an example of what we normally paid for subrun, classic agreements, especially from Warners. I sited $400 guarantee against 35%, which back then was generous, especially for a title that was pretty much an unknown and had no prepublicity or built-in recognition -- plus, privately I was willing to negotiate those terms if only they would communicate with us. We never heard back after two letters and a phone call which was never returned. I even wrote to Zeferelli who at the time was in NYC at the Met. He said there was nothing he could do as he was no longer connected with La Scala.
Finally I sent a desperate plea to La Scala saying that in good faith, we were going to run the film and put the normal guarantee that Warners charged for their top classic releases in escrow and assumed a 35% of the gross. If they wanted to stop the engagement, we would be waiting for that instruction and we would have pulled it. I also threw in some artsy yammer about how all we wanted to do was to share that exceptional La Scala performance with our music-loving audience; it's an experience that should be shared with the world.
After nearly 3 weeks of no response from them, we ran the film. Whether or not we were actually covered legally...I have no idea (is there anything in the copyright law that covers "in good faith exhibition?"), but I guess I was young and a lot more reckless than I am now...but DAMN I wanted to show that film!
Shortly after that we ran what I believe was the only 35mm, 4trk IBTech print of PORGY AND BESS. It was a nice follow-up of another rare classic music film.
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