Copyrighting Other People's Memories

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  • Hi, I think I have an interesting question or two
    concerning a recent project of mine.

    First a bit about me: I've always been interested in
    collecting old films and records. A few years ago, I
    found some home movies at a thrift store. They turned
    out to be beautifully filmed movies of vacations, parties,
    etc. of people I do not know, and it was always
    fun to play them. Soon I was collecting home movies
    from other thrift stores and yard sales; now I have many
    films of several families, ranging from the 1930's to
    the 70's.

    Next, as my skill with computers grew, I realized that I
    can make DVDs of these movies and wrote a monster of a
    macro to do just that. The results are as good as, if
    not better than, a professional service, and the movies
    are being digitized as I write this.

    On to my main question: Exactly what can I (or should
    I) copyright?
    There's some very good footage of historical value (not
    Zapruder film valuable, but fascinating stuff), and it
    could be used as stock footage or whatever. I could
    make some money here, right? Should I copyright the
    original film reels or my DVDs? I didn't shoot the
    movies, don't know anyone in them, I just own them.
    It's sad these families let their films end up in a
    thrift store, maybe a bit creepy that I've come to
    treasure them, but they're mine now to do with as I see
    fit. If someone were to claim they were from a family
    in the films (and wanted them back), there would be no
    way to definitively prove it, so I'm keeping them. They
    can buy the DVD.

    Also, I'm quite proud of my being able to get
    professional telecine (transferring movies to video)
    just by using a home computer
    and a scanner. The macro I wrote simply automates
    existing software (Photoshop, etc.) to scan the movie,
    break it into thousands of individual frames, and render
    those into a near HD-quality digital video, ready to
    burn to DVD. Can that be copyrighted?

    I should have some short samples on youtube soon and
    will update here when that happens.
  • You pose interesting questions, telecine, but unfortunately, I think you're coming at the copyright issue late in the process. First, it's important to remember that works enjoy copyright protection from the point at which they become fixed, in this case recorded on videotape. Neither you, nor the people who originally created the works you are digitizing, need to actively copyright the material to enjoy protection. So, you do indeed own the films that you've purchased, but assuming that they're recent enough to enjoy copyright protection at all, I don't think you would have the right to copy them or to make derivative works. It's possible that you could make an argument for fair use in some cases, but I think that selling the digitized work would be quite a stretch for fair use.

    Aside from the issues mentioned above, I don't think you could copyright the DVDs, at least if they're straight copies. Although it may be quite a feat to develop the process for conversion, I think it would be be considered "sweat of the brow" as in Feist, and would lack sufficient creativity for copyright protection.

    All this assumes that the films are current enough to enjoy copyright protection. If they are old enough to be in the public domain, then you can use them as you will, and might be able to monetize your investment by restricting and charging for access. In addition, if you make creative compilations of public domain or fair use material, you would have copyright in the compilations, even if not for the works that you used in those compilations.
  • I think your process could be patented (not copyrighted), and you should consider pursuing this.

    I wonder if some of those films might fall into the category of orphan works? If so, you MIGHT be able to make an argument for them being in the public domain so you can use them. But you would have to make sure you've exhausted any means of seeking out the original copyright holder (the filmmaker), and on top of this there would be the question of performance releases by any recognizable surviving people shown in the films.

    It does look like your best bet to make a profit from this is to seek out a patent lawyer and patent your process. Look on these films as practice or a private hobby.
  • Orphan works are, by definition, not in the public domain. And in the absence of any legislatively adopted solution (there has been none), using an orphan work subjects one to the risk of the full set of copyright remedies if a rights holder subsequently comes forward and objects to the use. There is currently no "safe harbor" for users of orphan works, although a legitimate good faith search for an copyright owner that is without result could later strengthen one's fair use defense. On the fourth factor one would argue absence of harm to potential markets, since is no such if the rights holder cannot be found. But that is not a sure thing by any means, and is much less secure than having a statutory release from liability, as the proposed orphan works bills would enact, or than using a public domain work.
  • Oops, you're right, ksmith, I got sloppy in my terminology there -- public domain and orphan works are entirely different things. You're right about the risks of using them, as well as about the defense possibilities of doing a good rightsholder search now.
  • Thanks for the insights! I guess I need to start a rightsholder search, so what little I have transferred is now posted:

    It's obviously at least a 60 year-old orphan. That's about all I'll post of it online, until the the whole collection's been transferred, and if I decide if it's worth seeking copyrights after all.

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