Saturday, January 23, 2016

Copyright Conumdrums - How Long will the original Godzilla be Protected by Copyright?

The film Godzilla (Gojira) was first released to theaters in Japan on November 3, 1954.  An authorized Americanized version with dubbed dialogue, reediting and the addition of Western actors, entitled Godzilla, King of the Monsters!, premiered in United States theaters on April 26, 1956.  In this article, I will illustrate how to determine the copyright protection term for a foreign film and some of the difficulties that can arise with determining the length of the copyright term.

Copyright Protection for Godzilla, King of the Monsters!

You may recall from my Manos article that works published or registered after 1964 have an effective copyright date of 95 years from the date of publication or registration.  This is primarily due to the automatic renewal provision of the copyright law. Works published from 1923-1963 require manual renewal registration to enjoy the same period of protection.  In other words, the author or copyright holder must renew the copyright with the Copyright Office within 28 years of their first registration in order to receive the benefit of the renewal term of 67 years.

Godzilla, King of the Monsters registered its copyright protection on April 27, 1956 according to the Catalog of Copyright Entries, Volume 10, 1956 at page 13.  It was copyrighted by Jewell Enterprises, Inc. and is given the number LP6465 (LP = Published motion picture photoplays). The current Public Catalog from the Copyright Office gives a renewal notice for Godzilla, King of the Monsters, RE0000254883, dated December 31, 1984. While this is not within 28 calendar years of the original registration,  the original protection term extends to the end of the 28th year from the initial year in which the protection first accrued.  The renewal for Godzilla, King of the Monsters had to have occurred some time in 1984, which it did.  Therefore, the copyright in Godzilla, King of the Monsters will expire in 2051 absent any further change to the copyright term by Congress. 

When you search for copyright registrations, post 1978 works are freely searchable through the Copyright Office's online search function.  However, for works before 1978, you will have to search through the volumes of the Catalog of Copyright Entries.  Each year usually has 12-14 volumes covering all kinds of works.  Each volume can be accessed through the Internet Archive or downloaded as a PDF.  The listings for motion picture works may be split into two volumes, one covering the first half of the year and the second covering the second half of the year. 

Copyright Protection for Godzilla in the United States

The copyright status of Godzilla, King of the Monsters! is the easy part.  The protection afforded to the original Godzilla is not so easy to trace.  First, Godzilla cannot owe its protection to Godzilla, King of the Monsters because the Japanese film is not a derivative work of the American film.  The reverse is true.  Second, the subtitled versions of Godzilla released in 2004 (Rialto) and 2012 (Criterion) are derivative works of the Japanese-language original film and have their own lengthy terms (95 years) of copyright protection attached to them. 

Interestingly, Godzilla is described as renewed in Registration Number RE0000145774 as of December 14, 1982.  The original registration number given is PA0000157725 with a date of November 3, 1954, which is the film's original release date in Japan.  However, if you look at PA0000157725, it also has a date of December 14, 1982 and notes that an English subtitled version was deposited in lieu of the original by special permission.  As I mentioned above, a subtitled version of Godzilla was hitting the art house circuit during this time.  You will see a similar entry for Seven Samurai, originally released in 1954 and renewed in 1982. Godzilla Raids Again has a similar history, with renewal in 1983 (RE0000179539RE0000188890) relating back to an original publication date of 1955 (PA0000172648).  The Gigantis the Fire Monster version also has a true 1960 registration, LP16500, and a 1987 renewal, RE0000350420.

The PA prefix stands for performing arts and is a collection of many different types of works which previously had their own prefix like LP and DU.  The PA prefix did not exist in 1954 or any year near it. Godzilla was not registered in the Copyright office, nor were other Japanese films from Toho studios during this time.  Typically Japanese films were registered when they were in the hands of a U.S. distributor and were either dubbed or subtitled.

So, how did Toho and other foreign film companies protect its films from being pirated abroad from the 1950s onward?  They relied upon international treaties similar to the Berne Convention.  The U.S. did not become a signatory to Berne until 1988, prior to that other treaties encompassed copyright protection between the two companies.  The US and Japan have had copyright relations since 1909 and there is an unbroken copyright protection continuity (with exceptions not material here) between the two countries despite World War II.  Essentially, a work that followed certain basic copyright formalities in its own country received reciprocal protection from the United States.  The most important requirement was a copyright notice on the work when it was first published.  Registration could occur during any time during the initial period of protection.  The film was renewed in 1982 and that seems to have secured its long-term protection in the U.S.  As a work for hire, it will enter the public domain in 2049.

Copyright Protection for Godzilla in Japan

How long is the copyright term for Godzilla in Japan?  The answer is not quite as simple as you might expect.  Japan currently has three periods of protection.  First is life of the author(s) plus 50 years, second is 50 years of publication of works from a corporation or legal person and third is 70 years from date of publication 70 years applies to cinematographic works created or published on or after 2004.  Works published or created before 2004 enjoy 50 years of protection, but from which point, publication or author's death? 

You may say that Godzilla was published by Toho Co. Ltd., a corporation, so Godzilla would be public domain in its native Japan as of 2005.  But not so fast there, thanks to the Kurosawa Rule the term is 50 years from the "author's" death.  The Kurosawa Rule comes from a 2007 Tokyo District Court case, upheld by the Intellectual Property High Court.  The lawsuit was initiated by Toho and Kadokawa Pictures Inc. (successor to Daiei Film Co. Ltd.) against a public-domain DVD seller who was selling the films of Akira Kurosawa released between 1943-1951.  The case is described here : http://akirakurosawa.info/2008/08/01/intellectual-property-high-court-rules-kurosawa-still-under-copyright/
http://variety.com/2007/digital/features/tokyo-court-clarifies-copyright-law-1117972062/

The court declined to apply the current copyright scheme retroactively, which would have put the Kurosawa films at issue (and a few more by the time the case was decided) in the public domain.  Instead, it held that, as to movies published before 1971 when the current copyright scheme was more-or-less put into place, the copyright term which applied was the law at that time, life of the author plus 38 years.  In this case, the Court determined that Akira Kurosawa was the primary creator of these films and therefore the author of these films for purposes of the copyright law.  That he made these films as work for hire, passing his copyright to the film companies who engaged him, was not relevant. Akira Kurosawa died in 1998, so his pre-1971 films would not enter the public domain in Japan until 2036.  Fortunately the Court did not hold that the author was Toho or Daiei, otherwise the works may never enter the public domain because a corporate author can live a very long time.  I would note that an earlier Tokyo District Court ruling held that Paramount's pre 1953-films to be in the public domain in Japan, but the authorship issue did not appear to be raised in that case : http://www.contactmusic.com/paramount-pictures/news/japanese-court-rules-pre-1953-movies-in-public-domain_1002318

So, for Godzilla and every other Godzilla film until Godzilla vs. Hedorah (1971), who is the author?  Godzilla  films were usually more collaborative works than Kurosawa's films.  The collaborative team for Godzilla included several people, principally Director and co-Script Writer Ishiro Honda, Producer Tomoyuki Tanaka (who came up with the original idea), Special Effects Director Eiji Tsuburaya and Music Composer Akira Ifukube.  Most of these men would comprise the team for the later entries in the Godzilla franchise until 1975.  If the Kurosawa Rule is strictly confined to the director, then it would be Honda's death in 1993 that would start the clock on the 38 years for Godzilla.  If on the other hand, Japanese law on co-authorship is more like that of the United Kingdom's when it comes to film (last to die of Principal Director, Screenwriter, Dialogue Writer or Film Composer), then it would be measured from Ifukube's death in 2006.

No More Public Domain Copies of Godzilla Films

In the U.S., there used to be many, many copies of films believed to be in the public domain released by bargain basement companies on VHS and, to a lesser extent, on DVD.  Godzilla vs. Megalon is one of those films, four US VHS covers from four different companies of the film can be found here : http://www.tohokingdom.com/articles/art_boxart_1970-1980.htm  The public domain outfits would find films without a copyright notice on them and run with them to the end of a tape spool.  When Cinema Shares released Godzilla vs. Megalon to theaters back in 1976, they apparently omitted this requirement.  This means that the English Dubbed version is in the Public Domain in the United States.

However, the situation does not end there because the English Dubbed version is a derivative work of the Japanese language original.  The Japanese language original from 1973 had a copyright notice on its film prints, so it is protected by both the US and Japanese law.  Copyright protection in a protected original work extends to a derivative work.  The "translation" of Godzilla vs. Megalon from Japanese to English is certainly a derivative work.  By contrast, parodies and other fair uses are not subject to the original copyright holder's control.  Toho did not really attempt to enforce its rights until the DVD era for reasons unknown but likely because it would have simply have been too expensive to sue for too little gain. 

Sometime in the DVD era, Toho decided to drop the hammer on the public domain companies.  In one famous instance,  Rhino Entertainment originally released the MST3K Godzilla vs. Megalon episode in the Volume 10 boxset, but quickly recalled it and replaced the film with The Giant Gila Monster.  You will not likely be seeing MST3K versions of Godzilla vs. Megalon or Godzilla vs. the Sea Monster released in the future by Shout Factory (which has rights to MST3K).  Of course video recordings of these episodes are not hard to find.  Interestingly, the Showa Gamera films (1966-1971) are still being hawked by Alpha Video, a public domain company, but it no longer advertises Godzilla vs. Megalon for sale.

The Copyright Notice on Japanese Films

In the United States, a copyright notice had to be applied to a work when first published, otherwise it forever lost copyright protection.  Forgetfulness often lead to the defeat of the important proprietary rights secured by Copyright.  However, not all countries required a copyright notice or other formal requirements like registration or deposit of the work.  These countries followed the Berne Convention, which essentially allowed copyright to attach to a work automatically when it was published.  In order to establish some universally applicable scheme of copyright reciprocity between countries, the United States and other nations entered into the Universal Copyright Convention of 1952, the UCC Geneva.  

The UCC Geneva allows a work published in a country who is a party to the Convention the copyright protection afforded to domestic works in other countries.  All that is required to meet the formalities requirement of the Convention is to affix a copyright notice to the work when first published.  There is no need to deposit the work in a central depository or engage in other formalities.  The Convention was in force in the United States as of September 16, 1955 and in Japan as of April 28, 1956.  

In the U.S. releases of the films Seven Samurai (Criterion Blu-ray), Godzilla (Classic Media DVD) and Godzilla Raids Again (Classic Media DVD), there is no contemporary copyright notice on these films.  However, films like Rodan, The Mysterians, King Kong vs. Godzilla and later films all have a copyright notice and © at the end of the film.  The notice gives the title of the film, identifies Toho Co. Ltd. as the copyright holder and gives the year in which the movie was published.  The first set of films were first published in 1954 and 1955 while the films from Rodan forward were published in 1956 and later.  Even though Japanese domestic law did not require a copyright notice, by placing the notice on their films Toho assured that they would be protected in other companies.  Given the increasing market for Japanese fantasy and prestige films, this was a no-brainer decision to protect the value of these films.  

Prior to UCC Geneva, copyright respect between the U.S. and Japan was established by the Convention of 1905, followed by the Treaty of Peace of 1951 and the Exchange of Notes of 1953.  A reading of the respective clauses relating to U.S. protection for Japanese works requires that a copyright notice and deposit would be required : 

1905, Article I - "The subjects or citizens of each of the two High Contracting Parties shall enjoy in the dominions of the other, the protection of copyright for their works of literature and art as well as photographs, against illegal reproduction, on the same basis on which protection is granted to the subject or citizens of the other..."  34 Stat. 2890

1951, Article 14(2)(V) - "The Allied Powers agree to deal with Japanese trademarks and literary and artistic property rights on a basis as favorable to Japan as circumstances ruling in each country will permit."  3 UST 3169

1953, - "That since April 28, 1952, the conditions specified in sections 9 (b) and 1 (e) of title 17 of the United States Code have existed and have been fulfilled with respect to the nationals of Japan,  [*6]  and that nationals of Japan have since that date been entitled and will continue to be entitled for a period of 4 years from the first coming into force of the Treaty of Peace [April 28, 1952], to all the benefits of the said title 17 except those conferred by the provisions embodied in the second paragraph of section 9 (b) thereof regarding the extension of time for fulfilling copyright conditions and formalities.

Provided, that the enjoyment by any work of the rights and benefits conferred by the said title 17 shall be conditioned upon compliance with the requirements and formalities prescribed with respect to such works by the copyright laws of the United States;"  5 UST 118, TIAS 2906.

Before you come to the obvious conclusion, namely that Seven Samurai and the first two Godzilla films never enjoyed copyright protection because they did not comply with U.S. formalities, one must deal with the issue of publication.  Section 9 of the 1909 Copyright Act indicates :

"That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act. "

Judicial decisions construing the statutory text of Section 9 indicated that this language was ambiguous as to  whether publication in a foreign country without a notice placed a work in the public domain in the United States.  For an excellent discussion of the authorities on this subject, see Chapter 9, "Copyright Protection for Works of Foreign Origin" in "The Internationalization of Law and Legal Education" (2008).  The decision in Heim v. Universal Pictures Co., 154 F. 2d 480 (2nd Cir. 1946) held that notice was not required when the publication first occurred in a foreign country, and after that decision, the Copyright Office began accepting submissions where that was the case.  But Heim was only binding on the cases arising out of the United States Court of Appeals for the Second Circuit (New York, Connecticut and Vermont).  In addition, until the authorized publication of the work in the United States, these films may have enjoyed the common law protection afforded to unpublished works. 

After UCC Geneva, copyright notice on first publication anywhere in the world was effectively required until the U.S. adopted Berne.  Therefore, while Toho may have been safe in relying on the ambiguities of the pre-UCC Geneva law for its earlier titles, in 1956 it adopted to the new requirement by placing a Copyright Notice on all its films.  

The Restored Copyright

The third film in the Godzilla series, King Kong vs. Godzilla, was released on August 11, 1962 in Japan and in a re-edited form, with Western actors and Western music, on June 26, 1963.  This film is unique in the Godzilla series because the rights to the film never reverted back to Toho.  RKO held the rights to the King Kong character at the time and Universal released the film to theaters and later to DVD and Blu-ray.  Toho continued to release the Japanese language film in Japan and other Asian markets in theatrical re-releases and on Home Video.

Universal registered its copyright in King Kong vs. Godzilla in 1963 and renewed it in 1991, so its version is fully protected.  Unlike Godzilla and its sequel and other films like Seven Samurai, Toho was not able to market its version in the U.S.  Although the Japanese version did have a proper copyright notice, Toho let 1990 go by without renewing the copyright to its King Kong vs. Godzilla.  Technically, its version entered the public domain in the U.S. in 1991. 

It would not stay in the public domain, however.  In 1994, the United States enacted the Uruguay Round Agreements Act (URAA), which came into force in 1996.  One of the provisions of this act allowed films which had fallen into the public domain because the formalities had not been followed (like copyright notice or renewal) if the film was not in the public domain in the country of origin.  This automatically restored Toho's copyright in King Kong vs. Godzilla, in addition to hundreds of other foreign films, as of January 1, 1996.  Toho registered the restored the copyright in its version of King Kong vs. Godzilla in 2002, PA0001151212.  This would protect its version of the film from bootleggers and pirates for the next 55 years. It also made the discussion regarding Seven Samurai and the first two Godzilla films in the previous section academic except as to enforcement.

The URAA, including its arguably retroactive application in restoring works of foreign authors previously deemed to be within the U.S. public domain, was upheld in the Supreme Court's decision in Golan v. Holder, 565 U.S. __ (2012).  The court noted important restrictions on the URAA's restoration powers.  First, any work whose U.S. copyright term, as renewed, which had fully expired would not be restored. Works from 1922 and earlier that would still have some copyright protection in their country of origin were still in the U.S. public domain.  Second, no recovery for infringement could be had for conduct occurring before the effective date of the URAA or for the first year following its enactment.  Third, the copyright holder had to file a notice of intent to enforce with the Copyright Office before they could bring enforcement lawsuits against parties who had previously relied upon the public domain status of the work.  However, the Court recognized that it was within Congress' authority to define the scope of the public domain and that there was precedent dating back to the first Copyright Act of 1790 that established protection for works previously freely usable by the public.  It noted that Congress' efforts in the URAA were to bring the United States; copyright requirements into line with the international community, which generally eschewed formalities when establishing copyright protection as outlined in the Berne Convention.

The concept of the restored copyright seems to be one that has escaped even some lawsuits to which it may apply.  A case in point was the recent October 2015 lawsuit against Netflix for streaming a subtitled version of Vittorio De Sica's 1948 classic film Bicycle Thieves (a.k.a. The Bicycle Thief).  The copyright holder for the film, Corinth Films, acknowledged that the original Italian version of the film was in the public domain in its complaint filed in the United States District Court for the Southern District of New York 

Corinth had previously been involved in litigation on the issue of the copyright status of Bicycle Thieves and in that 1985 case, Int’l Film Exch., Ltd. v. Corinth Films, Inc., 621 F. Supp. 631 (S.D.N.Y. 1985) also out of the same court, the Court held that the film was in the public domain because the owners had failed to renew the copyright to the film.  It also recognized that renewal certificates from the Copyright Office, one of which existed from 1976, were not the end of the issue.  The renewal certificate for The Bicycle Thief was invalid because it was not issued on behalf of the author or an assignee but a licensee.  Thus there was no valid copyright renewal.  The Court did note, however, that dubbed or subtitled versions of the film may still be able to claim copyright protection as derivative works.

Having been involved in the earlier case, Netflix could argue that collateral estoppel prohibited Corinth from re-litigating the film's public domain status.  But this is 2015, not 1995, so Corinth should have argued that the original Italian language version is no longer within the public domain thanks to URAA.  Italy, the film's country of origin, gives a copyright term of life of the author plus 70 years and De Sica died in 1974.  His film is protected by Italian copyright law until 2044, making it eligible for URAA restoration.  Control over the ur-work would give it total control over the film even if Netflix or its licensor decided to pay someone a few thousand to translate the film and provide new subtitles.  However Corinth did not and the parties settled the case this month.  Corinth a missed an opportunity to assert its restored rights under URAA.

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