Wednesday, July 20, 2016

Nosferatu and the Public Domain

I.  Rights in Nosferatu

Abraham "Bram" Stoker died on April 20, 1912.  When he died, his estate consisted mainly of his literary work.  To support his wife Florence Stoker, the only work with any continuing market value was his most famous novel, Dracula.  Unfortunately, that revenue was not particularly impressive at the time.

In 1921, Albin Grau had co-founded a studio called Prana Films and decided to make a loose adaptation of Dracula.  This film was finished in late 1921 and released in 1922 and called Nosferatu, eine Symphonie des Grauens.  It has become a classic film of the German Silent Expressionist movement.  It has widely been considered to be in the public domain, but as I will show here, that may not necessarily be the case.

Friedrich Wilhelm Murnau was the director for Nosferatu and died on March 11, 1931.  Although Albin Grau was officially credited for "costumes and sets", he acted as the producer for Nosferatu.  He acted as the designer for the film, which would be a fair title for the man who handled the costumes and sets on the small film crew Nosferatu had.  He was the co-founder of the studio called Prana Films under which they made Nosferatu and hoped to make many more occult films.  Since he was an occultist, he was the initiator and very much one of the driving forces behind the film.  He also hired the screenwriter, Henrik Galeen, and the director, Murnau.  He also designed the look of the vampire and even the weird posters for the film.  He worked closely with Murnau on scenes and visual motifs.  He was, in short the producer.  Albin Grau died on March 27, 1971.

In the United States, the law seems clear at first glance that the original version of Nosferatu is in the public domain. It premiered on March 4, 1922 in Berlin, and the conventional thinking that any film that was released prior to 1923, anywhere in the world, cannot be protected by the copyright laws of the United States.  U.S. Copyright Office Circular 15a.  Even though foreign films have had their copyrights restored by way of the Uruguay Round Agreements Act, the length of those copyrights can be no longer than an equivalent US film which maintained its copyright by notice, registration and renewal.  U.S. Copyright Office Circular 38b.  Moreover, Nosferatu was never published in this country with any respect for the copyright formalities, so it has always been in the public domain here.  We will see that this may not be the correct analysis.

It is well known that Nosferatu was almost destroyed by Stoker's widow, Florence.  Outraged that some foreigners had the audacity to adapt her husband's most famous work without authorization and without paying royalties, she persuaded the British Society of Authors to pursue a case against the company in Germany.  They sued Prana Film, which filed for bankruptcy but its receivers appealed the judgment against it for copyright infringement.  Florence prevailed and obtained a German court judgment giving her the authority to have all prints of the film confiscated and destroyed.

By the time Prana had exhausted its appeals, it was May of 1925.  By this time Florence had already licensed Dracula to the playwright Hamilton Deane for a theatrical adaptation, which was very successful. She had her eye selling the now marketable film rights, so distributing Nosferatu under the Dracula name was not an option.  By 1925, the film's commercial value seemed to have been negligible, so to Florence the best thing to do was to burn the nitrate.  It would take five more years before Universal bought the film rights from her for Dracula.

Of course, Nosferatu did not simply disappear as Florence may have hoped.  An export print had already been released in France by the time she sued and an altered German version called The Twelfth Hour would appear with sound effects added in 1930.  Prints would also find their way to Czechoslovakia, Hungary, the United Kingdom and the United States by the end of the 20s.  Unless Florence took legal action in every country, there was no way she could completely suppress it.  Notwithstanding the difficulties involved, in the English speaking world she still made every effort to destroy it until the film rights to Bela Lugosi's version were sold.

When she found out in 1925 that the Film Society of London was planning on showing a print of "Dracula by F.W. Murnau", she did her best to stop the showing and to destroy the film.  The Film Society showed it once in 1928, but she was able to have its print destroyed in 1929.  It showed up in New York and later in Detroit in 1929, but like the British showing the reviews were generally not good.  Even though business did not boom, Stoker and her agents still thought it was a threat to their ongoing negotiations with Universal.  They managed to persuade the American distributor to cough up the print for a small sum, which Universal paid.  Although the print was given up with the written understanding it was going to be destroyed, it was known that it was really going to Universal so they could study it for their own film.

The story of Florence Stoker's campaigns against Nosferatu and to license the theatrical and motion picture rights is well-told in David J. Skal's book "Hollywood Gothic : The tangled web of Dracula from novel to stage to screen", W. W. Norton & Co. 1990.  I have used factual material from that work above and I am deeply indebted to the author for his outstanding research.

Florence Stoker died on May 25, 1937.  Bram Stoker's descendants, both lineal and collateral, are fairly numerous.  Bram and Florence had a son, who had a daughter, who had three children.  These three children (great-grandchildren of Bram), have have children (great-great grandchildren of Bram).  While there is an official estate for Bram Stoker,, the conventional wisdom is that all of his known stories had been published by 1914, making them public domain in any country.  Thus the Stoker Estate has nothing of marketable value, except perhaps for his unpublished notes, journals and works.

In the United Kingdom, the length of protection was life of the author plus fifty years at the time of Stoker's death.  This was the rule in many countries like the U.K. and Germany which had adopted the Berne Convention.  The U.S. did not adopt Berne until 1989, so the protection for Dracula would have been no more than 56 years after the date of its publication in 1899.  Works for foreign nationals were first protected by the U.S. International Copyright Act of 1891, 26 Stat. 1106, which in addition to the requirements of the copyright notice and the deposit with the Library of Congress, required that printed works be printed in the United States (Section 4 of the Act) and that the deposit occur prior to the first publication of the work in the U.S. or any foreign country (Section 3 of the Act).   Stoker failed to deposit two copies of his book with the U.S. Copyright office, which nullified his copyright and his wife's renewal in 1920.  Lugosi v. Universal Pictures, 25 Cal. 3d. 813, 819 n. 1 (1979)

Had Nosferatu not been the subject of a lawsuit, it would have been protected by the laws of the European Union.  That law, which was adopted in the U.K., provides a period of protection of life of the last to die of the principal director, screenplay author, dialogue author or composer of music specifically created for and used in the film.  U.K. Copyright Service, Fact sheet P-01: UK Copyright Law.  It can also retroactively restore copyright protection to films which had fallen into the public domain.

As noted above, Murnau died in 1931, but Galeen, the author of the screenplay and dialogue, died in 1949.  I am not including Hans Erdmann for the composer criterion because music can only accompany a silent film, it cannot be used in the film.  His death (see below) would not affect the calculation anyway.  Unfortunately, as Murnau was the principal director, Albin Grau's contributions would not be considered in determining the duration of copyright.  So ultimately we use Galeen's death and thus Nosferatu should be ordinarily been protected by copyright in all countries which implemented Berne in the standard manner (which does not include the U.S.) until the end of 2019.

But even if Nosferatu is still under copyright for the remainder of the decade, who owns it?  If no one can make a claim on it, then it is a de-facto public domain state.  In other words, it is an orphan work and the risk of an infringement lawsuit is low.  The original owner of the film was Prana Film, but it went bankrupt and the receivers of that company gave way to Florence Stoker.  They relinquished all their rights to the film, even though they kept the footage they were supposed to have destroyed anyway.  She at least acquired the right to destroy the film, the ultimate property right she could be given.

It is implied that the German court ruled that Nosferatu had no right to exist, therefore the only right it could give Florence was a right to destroy.  But subsidiary rights, the right to copy, to license and to exploit, may also have flowed from that judgment.  In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Chief Justice John Marshall recognized that "[a]n unlimited power to tax involves, necessarily, a power to destroy."  The converse must also be true, that a power to destroy involves a power to tax by exacting a license fee, unless expressly forbidden by law or court judgment.  Given the complex issue that the German film played in Florence's attempts to have the film rights purchased, ultimately her exercise of her rights could be held to be that of an owner.  While it is important to note that Florence largely based her destruction campaigns in the U.K. and the U.S. based on her copyright in the book, the German decree requiring destruction of the film was a strong tool in her legal arsenal.

There is a fair equitable principle involved in that if the film cannot be destroyed, then at least the wronged party should be able to receive royalties from it.  However, Florence Stoker never seemed to have tried to invoke this principle, she was at first single minded in her purpose to destroy Nosferatu, but when until Universal came calling she softened her stance.  When she came across it its commercial aspects were limited at best and thus destruction was the most expedient solution to the problem.  On the other hand, she seemed willing to allow Universal Studios the right to view the film when she finally sold the film rights to the book.  Ultimately, if the film did pass into the public domain, it is due to the failure after the sale of the film rights for Florence or her descendants to try to license or otherwise maintain ownership over Nosferatu or suppress it for the next 86 years.  By the end of the decade, the question will have become academic in any event outside the United States.  Nonetheless, if anyone could have made a legitimate claim the copyright to Nosferatu, it was undoubtedly and only Florence Stoker who could. After 86 years of non-intervention by her estate and descendants, (Nosferatu was remade in 1979 by Werner Herzog and the production of it was fictionalized in 2000's Shadow of the Vampire), it is highly likely that a court would find that those people and entities have abandoned whatever rights they or their ancestors may have had in Nosferatu.

Is Nosferatu truly in the public domain in the United States?  Nosferatu was never truly published in the United States because no one with actual rights to the work ever published it.  Schatt v. Curtis Mgmt. Grp., 764 F. Supp. 902, 909 (S.D.N.Y. 1991)  The performances in 1929 and 1930 were either of an unauthorized bootleg print or private review of that bootleg print by Universal.  See Heim v. Universal Pictures Co., 154 F.2d 480, 486 (2d Cir. 1946) (unauthorized sales of imported copies of Hungarian song not publication); Patterson v. Century Productions, Inc., 93 F.2d 489, 492 (2d Cir. 1937) (limited publication, even though to the public, insufficient to show publication for purposes of statutory requirements for securing copyright).  Even though it was widely distributed in Germany in 1922, it has never been published for copyright purposes in the United States.  Societe Civile Succession Richard Guino v. Beseder, Inc., 414 F. Supp. 2d 944, 951-52 (D. Ariz. 2006).  Prana Film Company hired Murnau and Galeen to work on the film Nosferatu, thus it is a work for hire under 17 U.S.C. § 302(c).   Copyright will last for 95 years from the year of its first publication or 120 years from the year of its creation, whichever expires first.  17 U.S.C. § 303(a).

But which time period expires first?  If we take the year of first publication as 1922, then the copyright will expire at the end of this year, 2017.  But if we take the 120 years from the year of its creation, it will not fall into the public domain until 2041.  The answer can possibly be found in a case involving another famous German work, the original book called "Bambi, A Life in the Woods."  Bambi was originally published in Germany without a copyright notice in 1923 and then later with a copyright notice in 1926.  The copyright was renewed in 1954, 28 years later.  Disney challenged the copyright in Bambi, arguing that the original publication in 1923 without a copyright notice placed it into the public domain for copyright purposes or that the 1923 controlled for renewal purposes and that the renewal had have been made in the year 1951.  The court in Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1167-68 (9th Cir. 1996) held that the original 1923 publication did not constitute publication for purposes of U.S. copyright law.  The court also held that until the Bambi author republished his book with a copyright notice, anyone in the U.S. could have reprinted his book or published a derivative work like a movie.  Ultimately, the court held that the 1926 date with the copyright notice constituted publication for purposes of obtaining copyright protection and was the year by which the renewal period would run.  Therefore, Nosferatu's public domain issue would be finally settled in the U.S. only after the year 2041.  If an authorized publication had occurred between 1978-2002, inclusive, then according to the second sentence of 17 U.S.C. § 303(a) copyright protection would have lasted until December 31, 2047.  All this of course assumes no legislation provides further extensions of existing copyright terms.

II. Rights in a Nosferatu Restoration

Nosferatu has been the subject of frequent restoration since the 1980s.  There have been five restorations to date, each adding more footage than in the past.  See here for an excellent article describing the restorations and available quality home video releases :  The process of film restoration is a complex, lengthy and costly one.  From the several surviving prints or portions thereof, the best elements have to be selected, cleaned up and scanned.  In the case of silent films, most are retinted digitally.  Scratches, hairs and other defects have to be fixed as best as can be with the modern digital tools available.  In the case of Nosferatu, title cards have to be translated into the local language like English and even some of the original German title cards had to be recreated. Subtitles have to be added for an English-language release of Nosferatu's German original.  The end product is still an approximation of what the original may have been like, but no one of stature has challenged the substantial integrity of the most recent restorations.

For silent films a score is typically added and synchronized to the film if released to home video or to accompany it for a live performance.  Recent quality releases of Nosferatu have used several scores, some by well-known composers like James Bernard.  Since 2006, most DVD and Blu-ray versions have used Hans Erdmann's score composed for the 1922 premiere.  However, like the restoration of the film reels, the restoration of the score is only an approximation of what audiences heard in Berlin in 1922.  Even though Erdmann's music is within the public domain in Berne countries (he died in 1942), the performance of the public domain score is copyrightable just as a performance of Mozart's or Beethoven's music is copyrightable.

Outside these restored versions, the quintessential public domain version of Nosferatu, the English-language version with the Dracula title card and names, hails from the Museum of Modern Art and was acquired in the 1940s.  Available copies of this version tend to be from video sources and are of poor contrast, low resolution, frequently untinted and often lacking a score of any value.  Portions of the intertitles are typically cropped.  However, this version does contain 90-95% of the footage from the most recent restored versions.

There is support in federal case law that a restoration deserves copyright protection.  In ABS Entm't, Inc. v. CBS Corp., 2016 U.S. Dist. LEXIS 71470 (C.D. Cal. May 30, 2016), the court held that CBS remastered version of a pre-1972 recording of a song was sufficiently original to allow it to be protected by federal copyright law.  Less recently, the courts have held that a pan & scanned version of a film is copyrightable. Maljack Productions v. UAV Corp., 964 F. Supp. 1416 (C.D. Cal. 1997).  In both cases, the court focused on originality as it must because these versions were derivative works.

As the Supreme Court held Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991), the degree of originality or creativity need only be "minimal" or "extremely low; even a slight amount will suffice."  Thus the alphabetical organization of a list of telephone numbers by subscribers was insufficient in Feist to meet the standard for originality.  Virtually indistinguishable copies of creative products, even in another form, are not derivative works.  See Durham Indus. v. Tomy Corp., 630 F.2d 905, 908-09 (2d Cir. 1980) (Disney characters in toy form);  Agee v. Paramount Commc'ns., Inc., 853 F. Supp. 778, 786 (S.D.N.Y. 1994)  (vinyl record recording copied onto videotape).

"Mechanical changes or processes applied to a sound recording, such as a change in format, declicking, and noise reduction, generally do not represent enough original authorship to be registered."  United States Copyright Office's Circular No. 56, Copyright Registration for Sound Recordings.  Differences that are not perceptible to the causal observer would also fail to meet the originality test.  Id.  In L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 489 (2d Cir. 1976) the court held that the reduction in size in a of copy of toy bank was merely a functional and not a creative alteration.  By contrast, when great artistic skill and originality is called for in making the "copy", as was the case with a smaller scale replica of Auguste Rodin's "Hand of God" sculpture, combined with an alteration to the base of the sculpture, then copyright protection will attach to the derivative work.  Alva Studios, Inc. v. Winninger, 177 F. Supp. 265, 267 (S.D.N.Y. 1959).

Nosferatu's most recent 2006 restoration has been generally accepted an authoritative edition of the film.  It is good exemplar of the process of silent film restoration, so the case law analysis can apply generally to similar restored works.  A scan of a motion picture film by itself is not sufficient to afford the digital version copyright protection.  See Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540 (2005) (transfer of audio recording from record to CD).  By analogy to the Copyright Office's Circular on Sound Recordings, removal of scratches and dirt, de-graining, contrast adjustment and other common film cleanup techniques are also probably insufficient to warrant copyright protection.  Nosferatu's 2006 restoration goes much further by adding recreated title cards, tinting, music score and arrangement of footage from multiple sources.  Even when you subtract the musical score, there is still a large amount of creative judgment and educated guessing involved in the restoration.  Each of the above visual elements, titles, tinting and footage, when taken in their totality, allow for copyright protection.

Of course, it is somewhat ironic that a restoration hoping to approximate the lost original and generally coming pretty close to it should have an independent means of copyright protection.  But the restored Nosferatu is quite distinguishable from the Museum of Modern Art print or any of the other extant prints.  In other words, restored Nosferatu essentially becomes the embodiment of the Rodin sculpture of Alva Studios.

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