Universal Studios' Dracula and Frankenstein's Entry into the Public Domain

2027 should be a big year for fans of Universal Classic Horror Films, as both Dracula and Frankenstein, both being released in 1931, should enter the public domain on January 1 of that year. But maybe Dracula's entry into to public domain may not be as soon as you might think.

Sherlock Holmes and Copyright Term Expiration

Two attempts to murder Sherlock Holmes, the left much more freely usable historically than the right

Sir Arthur Ignatius Conan Doyle wrote and published Sherlock Holmes stories from 1887 to 1927, a span of forty years. That broad period has some unusual implications for the copyright of the stories and the character of Sherlock Holmes. This blog article intends to answer the question how did Sherlock Holmes enter the public domain and at what times did he do so?

Giving the Studios the Bird : Fan Reconstructions of their Preferred Versions of Classic Films

In the past several years, there has been an increasing proliferation of the fan re-edit and the fan reconstruction of classic films.  One of the chief reasons for this was the Star Wars Special Editions.  But fan reconstructions have gone far beyond a Galaxy Far, Far Away.  Read on to discover another community increasingly devoted to reconstruction.  But before we get there, let us set the stage during the long winter of our discontent :

The Story Behind the Star Wars Special Editions and Despecialized Editions

Back in 1997, fourteen years after Return of the Jedi, George Lucas decided to reedit the original trilogy to reflect how he believed the films should be presented and enjoyed given the advances in technology between 1977, 1980, 1983 and 1997.  At first, these Special Editions (SEs) were met with some interest and were released on VHS and Laserdisc.  Given that the untouched versions (now known as George's Original Untouched Trilogy or GOUT) of these films were also available at that time on VHS and Laserdisc and the Internet was just becoming a part of everyday life, complaints were fairly muted at the time.

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.

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 (for the translations only). 

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 (RE0000179539, RE0000188890) 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 70 years, second is 70 years of publication of works from a corporation or legal person and third is 70 years from date of publication of cinematographic works created or published on or after 1970.  

You may say that Godzilla was published by Toho Co. Ltd., a corporation, so Godzilla will be in the public domain in its native Japan as of 2025.  But not so fast there, thanks to the Kurosawa Rule the term is 38 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 and here.

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.

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 the Godzilla series included several people, principally Director and Ishiro Honda, Producer Tomoyuki Tanaka (who came up with the original idea for Godzilla), 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 and five of its first eight sequels.  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.  Assuming that the statement “the copyright over films is protected for 38 years from the year after the death of the director” as translated on the akirakurosawa.info site applies to all pre-1970 films, then 2031 will see a lot of Godzilla enter the public domain in its native country.  

If we assume that the "Kurosawa Rule" is limited to the director, then this can lead to some very staggered public domain release dates.  By that rule, Godzilla Raids Again would have entered Japanese public domain in 2011, 38 years after its Director, Motoyoshi Oda's, death.  Moreover, the films Ebirah, Horror of the Deep and Son of Godzilla would enter the public domain in 2038 because Director Jun Fukuda died in 2000.  By the operation of this rule, those two films will enter into the public domain after the next two films in the series, Destroy All Monsters and All Monsters Attack, due to their direction by Ishiro Honda.

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.  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 meant 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.  Moreover, even if a derivative work falls into the public domain, it does not affect the validity of the copyright of the original work. Batjac Prods. v. Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998) held that the portions of an unpublished and uncopyrighted work prior to 1978 fell into the public domain if incorporated into an authorized derivative work if that derivative work fell into the public domain, but that case does not apply when the original Japanese release was protected by a valid copyright.  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.

Other Godzilla films also saw some dubious VHS tapes but nowhere near to the extent of Godzilla vs. Megalon. It seems like "public domain" VHS publishing companies like GoodTimes and Video Treasures licensed Godzilla films when they thought it was necessary. GoodTimes appeared to have licensed Godzilla, King of the Monsters! and King Kong vs. Godzilla and Video Treasures did the same for Godzilla Raids Again. Films like Godzilla vs. The Thing, Monster Zero, Destroy All Monsters, Godzilla's Revenge and Godzilla vs. The Smog Monster had their copyright notices on their title cards, so their copyright claim was hard to miss. I am only aware of one attempt to bootleg some of these films and those bootlegs (from Simitar, which later licensed them properly) did not last long on the market.

Other films like Godzilla vs. The Cosmic Monster and probably Godzilla on Monster Island (both released by Cinema Shares) only had their copyright notices at the end of the film, so a shady distributor could cut those frames out of their transfer or film print and claim plausible deniability of the copyright notice. The films released by Continental/Walter-Reade, Ghidrah, The Three-Headed Monster, Godzilla vs. The Sea Monster and Son of Godzilla may not originally have had copyright notices on their first releases (and if they did they were easy to ignore) but they were added when Alan Enterprises took over distribution of these films in the 1970s. Those notices deterred some, but not all bootleggers. 

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., on releases of the Japanese-language versions of films Seven Samurai (Criterion Blu-ray), Godzilla (Classic Media DVD) and Godzilla Raids Again (Classic Media DVD), there is no contemporary copyright notice on them.  However, the Japanese-language versions of 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 and cost-free 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,  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).  Nonetheless its persuasive authority seems to have permitted protection for films without a copyright notice when published in their country of origin. Heim did not protect the U.S. distributor if it screwed up and did not put a copyright notice on its version of the film. 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 in the United States.  This film is unique in the Godzilla series because the U.S. 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 distribute its original Japanese-language 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 may have had state common-law protection as an unpublished work as it was made prior to 1978 when the 1976 Copyright Act eliminated common-law protection for unpublished works.)

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. The URAA 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.

As Corinth was involved in the earlier case, Netflix could argue that collateral estoppel prohibited Corinth from re-litigating the film's public domain status in a later case.  But this is 2015, not 1985, so Corinth should have argued (based on the facts known to me) 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 original 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.

Manos : The Hands of Fate May Not be in the Public Domain

In my previous blog entry, I talked about the various versions of Manos: The Hands of Fate.  While performing research for that article, I came across information to suggest that the film may not be in the public domain as everyone seemed to have assumed was the case since Mystery Science Theater 3000 (MTS3K) first parodied it in 1993.  When Harold (Hal) P. Warren, who conceived Manos and functioned as its writer, producer, director and male lead failed to ensure that a copyright notice was put on the film, one would think that would have definitively indicated that the film entered the public domain due to his failure to follow the copyright requirements of the time.  However, the situation is far more complex than it first appears.

The Copyright Claim by the Warren Trust

Joe Warren, son of the deceased Hal Warren, has claimed that Manos is not in the public domain because his father registered his copyright in the screenplay with the Library of Congress.  In the Catalog of Copyright Entries: Third Series Volume 20, Parts 3-4, Number 1, Dramas and Works Prepared for Oral Delivery there is the following entry on page 17 :

FINGERS OF FATE, by Harold P. Warren.
66 1.  A screenplay.  © Harold P.
Warren; 18May66; DU65701

DU65701 is the Registration Number, with the D standing for "dramatic or dramatico-musical works" and the U standing for Unpublished work.  Registering unpublished works was far from uncommon, there were 1,452 registrations of unpublished dramatic works in that volume alone.   A screenwriter would be well-advised to register his unpublished screenplay prior to the days of automatic copyright protection when peddling it around Hollywood.  Although Harold P. (Paul) Warren died on December 26, 1985, however, because the work was registered in 1966, the life of the author plus seventy years term does not apply.  Only works created in 1978 or later enjoy that term of protection.

In 1966 when the copyright was registered in the screenplay, Harold P. Warren was entitled to enjoy a protection period of 28 years from the date of publication.  In 1978, the copyright law was amended to provide for a renewal term of 47 years.  In 1992, the term was automatically granted for works copyrighted between 1964-1977 (inclusive). Therefore, Warren's copyright in the Fingers of Fate screenplay was automatically renewed, even though he was dead.  The Supreme Court's decision in Stewart v. Abend, 495 U.S. 207, 110 S. Ct. 1750 (1990), held that renewal rights are vested in the heirs of the copyright holder despite any previous assignment made during the copyright holder's lifetime.  In 1998, the current copyright extension act added another 20 years for works registered between 1964-1977, bringing the term to 95 years.  Therefore, the screenplay will be protected until the year 2061.

As the screenplay is listed in the Catalog of Copyright Entries, that is prima facie evidence that the copyright was validly registered.  Prima facie evidence is evidence deemed legally sufficient for a jury to find for a party on that issue.  Once a plaintiff has shown the registration as given in the Volume cited above, the burden shifts to the defendant to show that the registration was invalid.

"Finggrs [sic] of Fate" was the title Ben Solovey found on the workprint leader when he obtained the 16mm workprint of the film.  Solovey then restored the film using the workprint and released his Restored Workprint version through Synapse Films, as indicated in the previous blog entry.  Joe Warren has claimed that the film is a derivative work of the screenplay.

While the screenplay was registered with the copyright office, thereby satisfying the formalities for a written work, the film was neither registered nor published with a copyright notice.  Joe Warren, Hal Warren's heir and Trustee of the Harold P. Warren Irrevocable Trust (the Trust) has argued that the film is a derivative work of the screenplay and thus the Trust may prohibit the the unauthorized distribution of the film.

The Argument against the Copyright Claim

Of course, it is interesting to note that Hal Warren authored the derivative work in question and failed to follow the formalities to protect it.   Having authorized the derivative work and allowed it to lapse into the public domain, can the author of the original work or his heirs exercise control over it?

One factor that cannot be overlooked is the time lapse between the time from when the derivative work entered the public domain, 1966, and when the Trust began some measure of enforcement activities in 2012. For 46 years it and its predecessors sat on its rights.  Of course between the time it was shown in West Texas drive-ins and the MST3K episode in 1993, it was not shown or made available for viewing, so there was no need to assert or defend rights.  When MST3K picked the film up from a pile of public domain movies on tape, as far as I know it did not seek permission from anybody to essentially create a derivative work.

The MST3K version of Manos is clearly a derivative work of the Manos film and possibly the Fingers of Fate screenplay.  It edits the film, taking the essential portion of it and mocks it both as it is being screened before Joel and the bots and during the host segments.  No one from the Warren family or the Trust (most likely not in existence at the time) sent a cease and desist letter to Best Brains Inc, the corporate entity behind MST3K.  MTS3K revived interest in the film and the episode was released on a nationally-available cable channel in 1993.  Between 1993 and 2012, no enforcement activity was taken regarding the copyrighted screenplay.  The film has been made available on Youtube, the Internet Archive and had been released at least four times on home video between those two years.  Other riffing of the film in the MST3K vein (not including Rifftrax) has also been done.

The Petrella Decision

However, the Supreme Court's decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___, 134 S. Ct. 1962 (2014) nullifies the above argument.  The facts in Petrella have marked similarities to the situation in Manos.  In Petrella, former middleweight boxing champion Jake LaMotta and his friend Frank Petrella copyrighted a pair of screenplays in 1963 and 1973 and a book in 1970 about LaMotta's life and career. LaMotta's story was acquired by United Artists, a subsidiary of MGM and turned into the award-winning movie Raging Bull, directed by Martin Scorcese and starring Robert DeNiro.  Petrella's estate was able to renew copyright timely to the screenplay registered in 1963, but not the book registered in 1970 or the screenplay registered in 1973.  (The parties disputed which of the three works was published first, and there is no automatic renewal for works published in 1963 or earlier).  The estate warned MGM in 1998 that continued exploitation of the work constituted copyright infringement, and after years of negotiations and threats, filed suit in 2009.

The statute of limitations on a copyright infringement claim is three years from the date which the cause of action accrued.  A cause of action accrues when there is an infringing act such as an "unauthorized" showing of a film or when an unauthorized video release of the film is made for sale.  Each violation can lead to a separate period of limitations during which the copyright holder can seek redress in the courts.  Moreover, even if an earlier infringement had occurred and no action had been taken within the limitations period, it does not cover subsequent infringing activities.  An example can be found with Ben Solovey's activities.  Solovey created a kickstarter campaign to raise money to restore the film.  The kickstarter campaign ended on February 4, 2012 after raising $48,130.  Assuming the kickstarter campaign to restore the film was an infringement on Warren's claimed copyrights, the Trust is too late to sue for it.  However, Solovey presented a "90% complete" version of his workprint version in theaters in August, 2013, and the Trust may still be able to file suit for that act.  More recently, the disc release of the workprint version in October, 2015 is well within the statute of limitations for a copyright infringement claim.

Returning to Petrella, the District Court and the Court of Appeals held that doctrine of laches barred Patricia Petrella's, (Frank Petrella's daughter and heir), claim because she had waited for an unreasonable eighteen years to file suit.  Laches is a judicial doctrine that allows a court to dismiss a lawsuit if there has been unreasonable delay in bringing it.  Her claim would have been dismissed had the Supreme Court not granted her petition for a writ of certiorari.  (Certiorari is the procedure by which the Supreme Court takes appellate cases which it is not obligated to hear).  The Court of Appeals noted that Petrella had not filed suit primarily because the film had not made money in years.  Raging Bull's release on DVD and Blu-ray in the 21st Century helped change that.

The Supreme Court, in a 6-to-3 decision, held that the three year statute of limitations, not laches, governed the ability of a copyright holder to file suit in the face of an infringing act.  Therefore, Petrella's claim should not have been dissmissed because she was guilty of laches.  However, it recognized three umbstantial limitations on Petrella's ability to recover for copyright infringement.

First, Petrella, who filed against MGM in 2009, could only look to MGM's profits from 2006 to 2009.  Any money MGM made on Raging Bull prior to that date was its to keep.

Second, MGM would be entitled to offset its deductible expenses against the profits earned.  In other words, a defendant can point to the expenses incurred to generate the profits and use them to reduce a damages award.  In other words, if Petrella had released Raging Bull, she would have had to incur those costs to generate the profits, so she cannot claim the gross sales of the DVD or the Blu-ray releases.  I could mention that studio accounting practices are notoriously creative in short changing people entitled to shares in the film's profit.

Third, MGM would be able claim that portion of the profit attributable to its efforts separate and distinct from the value of the copyrighted work.  MGM could show that the bulk of the profits from the sales of Raging Bull came primarily from its efforts in producing an award-winning and widely-recognized feature film which is still held in high public esteem today, not from Petrella's screenplay.  If the film did not have Martin Scorcese as a director, its stellar cast or beautiful, yet daring B&W cinematography, it may not have been the success it became.  MGM could also point to its efforts to market a high-quality disc with restored video and audio and included extra features.

Congress enacted the three-year statute of limitations for copyright infringement claims in 1957.  Prior to that, the federal courts looked to analogous state court statute of limitations, if there were any, thus allowing room for laches.  Laches, the Supreme Court recognized, was an equitable doctrine developed by the courts to address issues of fairness and inequity.  The Court further recognized that Congress had, as described above, taken steps to provide for a distinct time frame for which infringement may lie and limitations on remedies to prevent a plaintiff's windfall.  Laches has no place when the legislature has taken affirmative steps to act.

Responding to MGM's argument that the Supreme Court should not award Petrella for sitting on her claims until Raging Bull started to make money, the Court recognized that copyright holders do not have to challenge each and every actionable enforcement.  The Court noted that the harm from many infringements would be too small to justify the cost of litigation.  Moreover, the Plaintiff's delay may cause her to lose critical evidence to her case from the passage of time.  She bears the burden of proving the infringement.

The Court held that there were was an absence of extraordinary facts that would entitle MGM to automatic relief.  This was not a case where the remedy would include the total destruction of the work even though the plaintiff had prior notice of the infringing conduct and did not seek an injunction prior to the defendant investing substantial sums in the project.  In those cases, destruction would have worked an unjust hardship on the defendant and innocent third parties, so the relief was limited to damages.  Finally, when fashioning an equitable remedy such as an injunction, the Court may look to any factors which may arise from the conduct of the parties.

Impact of the Petrella Decision

The similarities of the facts in Petrella and Manos are striking.  Both involve a registered copyright in a screenplay that was later turned, with permission, into a feature film.  Both films, Manos and Raging Bull, were released and thereafter entered into a twilight phase where each film had limited commercial value.  At some point, the original authors of the screenplays died and their rights to renewal of their copyrights passed to their heirs.  Later, these films began to acquire commercial value, however modest in Manos' case.  Finally, the heirs of the screenplay authors have indicated their willingness to make legal threats or file a lawsuit to prevent "unauthorized" distribution of a claimed derivative work (the film).

In Manos' case, there is no distinction to be made in the fact that Hal Warren allowed the film to enter the public domain through his inattentiveness to the copyright formalities.  The film's status as a derivative work of the screenplay is the issue.  If the film is a derivative work of the screenplay, then the Trust has a valid claim to prohibit unauthorized distribution.  The Trust may have a copy of the screenplay, but because it was never published I cannot say how closely the film follows it.  The Trust has probably claimed that because of the multiple hats Hal Warren was wearing during 1966, Screenwriter, Male Lead, Producer and Director, the limited time, talent and resources available to him and the fact that the workprint was labeled "Finggrs [sic] of Fate", the screenplay hews very closely to the finished film.  It is well-known there was no time for reshoots, leading to many of the errors remaining in the Restored Workprint and Theatrical Release version, so it is doubtful there would there be time for rewrites.  (The make out couple is the only example of an ad-hoc addition made during filming due to one of the actresses playing the Master's Wives breaking her leg or foot).  If so, it is governed by Petrella and the three year statute of limitations on copyright claims.  However, if it is more of a rough guide to the plot with liberal revisions made before or when it was being filmed, then it may not be a derivative work but an independent work which was allowed to fall into the public domain and be used by all.

Manos is not the only movie which is in this unique category of a film in the public domain which is controlled as a derivative work from an earlier source.  The classic holiday film It's a Wonderful Life has a similar situation.  The film was based on a short story called the "The Greatest Gift."  The film itself, released in 1946, fell into the public domain in 1974 when the copyright was not renewed due to a clerical error.  The story was published in 1943 privately and 1944 publicly.  Its registration was properly renewed in 1971 by the author.  Thereafter, the author apparently assigned its rights to Republic Pictures, which then was able to regulate the previously-unrestrained TV airings of the film.  Republic also secured rights to the film's soundtrack and held the original negative in its possession, bolstering its claim.  Republic's assets are now owned by Paramount and licenses the rights to show the film.  It's a Wonderful Life will probably fall into the public domain in 2039.

Assuming the Trust files a lawsuit and shows that the film is a derivative work of the screenplay, the real issue is what would happen to the unauthorized versions like the Restored Workprint version?  Based on the Supreme Court's language at the end of Petrella, a trial court would likely confine the remedies to the issue of damages. The Trust could have filed for an injunction to prevent the release of the film either at the film festivals or on disc, but no more than threats were made.  Having waited until after Solovey and Synapse went to the expense of preparing and distributing materials, an permanent injunction against further distribution of the film would not likely be granted.  See New Era Publs. Int'l, ApS v. Henry Holt & Co., 873 F.2d 576, 584-85 (2d Cir. 1989).  Petrella made the distinction that while laches cannot be a bar to suit, it can be considered as an equitable factor when determining the remedy to be granted.

Does Publication of the Unpublished Screenplay Defeat the Unpublished Screenplay's Copyright?

It is also important to note that even though the unpublished screenplay probably was published in the form of the film, the screenplay does not lose protection because the film did.  This is not the situation that was presented in Batjac Prods. v. Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998), where the portions of the screenplay for the movie McClintock! that were filmed were deemed to have been published by the film, which had entered the public domain by failure of the film's producers to renew the copyright.  McClintock!  The film McClintock!, starring John Wayne, was published in 1963.  Drafts of the screenplay, the rights to which were assigned to Wayne's production company Batjac, was drafted in 1962 and 1963.  While the copyright was successfully established when the film premiered, it lapsed into the public domain when Batjac failed to renew the copyright by the end of 1991.

The screenplay was not separately unpublished and the author did not apply for copyright protection for an unpublished work.  The Register of Copyrights refused to register the screenplay for copyright protection.  In the meantime Goodtimes Home Video had released a pan & scan version of the film on video.  Batjac sued Goodtimes on the basis of its copyright in the unpublished screenplay.  The District Court and the 9th Circuit Court of Appeals held that the screenplay only obtained protection when published in the form of the film and lost that protection when Batjack failed to renew the copyright.

What distinguishes McClintock!'s unpublished screenplay from Fingers of Fate's unpublished screenplay is that Warren had a valid copyright for his unpublished screenplay before he made his film.  McClintock!'s unpublished screenplay did have state common law protection until the Copyright Act of 1976 superseded all state common law protections except as to pre-1972 sound recordings.  The U.S. Copyright Office's Board of Appeals specifically recognized this distinction in its 2002 decision dealing with the film and unregistered screenplay for the film "Husbands" by John Cassavettes.  As recognized and cited by the court in Richlin v. MGM Pictures, Inc., 531 F.3d 962, 975 (9th Cir. 2008), the Board of Appeals' reasoning in its Husbands decision is entitled to deference.

There is scant evidence that Warren abandoned his copyright in Manos.  Although the premiere was disastrous, he did consider redubbing it and re-releasing it as a comedy.  It also played contemporaneously in some west Texas drive-ins.  Although he did forfeit his right to copyright the film by failing to place a copyright notice on it, an affirmative, overt act is required before a court will deem that he abandoned his copyright to his film or his screenplay.  Nat'l Comics Publs., Inc. v. Fawcett Publs., Inc., 191 F.2d 594, 598 (2d Cir. 1951).

But consider the protection afforded to the unpublished screenplay under the applicable law in 1966 when Warren deposited a copy of it, which is the 1909 Copyright Act (as amended).  Section 11 of that act provides for copy protection for works "not reproduced for sale" by depositing one copy of the work if it is a dramatic or musical composition.  But Section 11 continues "But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale."  Section 13 provides that if two copies of the work is not deposited within three or six months after a demand from the register of copyrights, the copyright will become void.  In the 1976 Copyright Act, 17 U.S.C. § 408(e) no longer requires this : "Published edition of previously registered work. Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version."

The text of the 1909 act does not dispossess an author of copyright protection unless and until the register makes a demand.  Even if the Fingers of Fate screenplay was published when the film Manos The Hands of Fate was first shown, unless a demand was made, Manos' screenplay would not fall outside the protection of the statute.  Given Manos' was a very obscure film, a demand for it would be extremely unlikely.

Before we conclude with this issue, one thing that must be addressed is the effect that a proper registration has on an action for copyright infringement.  Simply put, without registration there can be no copyright infringement claim.  The only claim a copyright holder can make without registration is against someone who has falsely attributed the authorship of the work or to prevent attacks to the integrity of the work.  In this case, two copies of the screenplay must be deposited with the LoC.  As the Restoration does not do either of those things, the Trust must produce the screenplay.  Alternatively, it could try to persuade the Copyright Office to accept the film as the screenplay.

Conclusion

Even though the film Manos: The Hands of Fate may be in the public domain, the Trust may still be able to maintain control over the exploitation of the film to the extent that it is a derivative work of the copyrighted screenplay.  However, it bears the burden of proving the infringement, which also means it bears the burden of either producing the screenplay or otherwise proving its contents.  Assuming that it can do this and show that the film is a derivative work of the screenplay, what would happen?

The Trust may end up arguing in Court that it is entitled to the profits from the Synapse films release and perhaps an injunction against further dissemination of the film in any form from Solovey and Synapse. In court it may well have a serious difficulty in showing that the screenplay entitles it to profit.  The screenplay is but one part of Manos' charm and reasons for the public's continued interest in the film.  The restoration, which the Trust had no part of, was the driving factor behind the sales.  Indeed, had it not been for the MTS3K episode so memorably mocking it back in 1993, Manos would have been confined to a footnote in El Paso's local history.  The lack of any substantial financial incentive is what may save the Restored Workprint version from being taken out of circulation.  (Rifftrax came to an arrangement with the Trust, http://www.playboy.com/articles/the-battle-over-the-worst-movie-ever, so its version is in no jeopardy.  I do not know about the MST3K version currently released by Shout Factory!).

However, let us consider the issue of statutory damages as an alternative to proved damages.  There are two categories of statutory damages. The first is where a plaintiff elects to decline to prove damages and the court can award from $750-$30,000 for each infringed work per defendant.  17 U.S.C. § 504.  However, courts can by statute award attorney's fees, which can become quite substantial, to the prevailing party.  17 U.S.C. § 505.  Moreover, there is an issue of "willful" statutory infringement.  If a plaintiff can prove "willful" infringement, namely that the infringement occurred with knowledge of the copyright claim or reckless disregard of the copyright status of the infringed work, the Court can enhance damages up to $150,000.  However, if the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, then the Court can reduce damages to no less than $200.

In this case, the Trust would argue that its communications with Solovey and other parties should have put them on notice that their activities constituted infringement.  Solovey could counter that he secured legal advice indicating that Manos was in the public domain and thus should not be liable for willful infringement.  Unless the Trust provided him with a copy of the screenplay prior to his releasing of his restoration or at least a citation to the correct volume of the Copyright Catalog, it may have a difficult time showing he willfully infringed on the Trust's copyright.  Without that, Solovey may not have been on notice of a valid copyright claim.

It should not have taken any great insight from an experienced copyright attorney to have considered that the screenplay may have been copyrighted in an unpublished form independently of the film.  As I indicated above, this was a very common practice according to the Copyright Catalog during the era in which Manos was made.  Having realized the possibility, it would have not been a particularly onerous search to look in the Copyright Catalog covering the year 1966.  The Copyright Catalog has an author index and Hal Warren's name is there.  The Copyright Catalog is freely available through the Copyright Office, and I was able to locate the citation printed above with no great difficulty.

While the Supreme Court decided Petrella on May 19, 2014, a defense based on the uncertainty of the law prior to the Petrella decision would not likely work.  Petrella focused on a defense to copyright, not whether there was a valid copyright claim.  If one party had successfully asserted a laches defense against a copyright holder prior to Petrella, that would not necessarily have allowed the copyright to enter the public domain de facto. Laches is always applied on a case by case basis, Kourtis v. Cameron, 419 F.3d 989, 1000 (9th Cir. 2005), so a subsequent infringer cannot simply point to a judgment in favor of a previous infringer and prevail on the basis of collateral estoppel.  (Collateal estoppel bars a party from contesting an issue in a subsequent lawsuit that had been previously decided in a prior lawsuit to which it was a party.)  Typically a successful laches claim may have the effect of insulating a period of prior infringement activity by anybody. However, it may not have applied to not future activity once the copyright holder had shown renewed vigilance unless there is a fundamental issue regarding proof of the content of the infringing work as discussed in the dissenting opinion in Petrella.

Solovey may argue that his restoration was transformative, which is a type of fair use defense to copyright infringement, namely that by restoring a once-faded and scratchy film into something far superior he has allowed viewers to gain new insight into the original work. His registration of copyright in his restoration would give some weight because registration gives a litigant a legal presumption of a valid copyright claim.  This would be a tricky argument to make in the light of a dearth of case law regarding the copyright protections granted to film restorations.

However, the differences between the Restored Workprint and the Original Theatrical Release versions are negligible in terms of the story they tell.  The four fair use factors cited in 17 U.S.C. § 107 do not favor the Restored Workprint version.  The first factor looks to the purpose and character of the use.  The Restored Workprint was released for a commercial purpose, Solovey did not put his work in the public domain but copyrighted it and released it through a commercial film distributor, Synapse.  The film presumably takes most, if not all the screenplay and puts it on screen.  The second factor, nature of the copyrighted work, tends to distinguish between factual and fictional works, and Manos falls wholly within the fictional category.  The third factor, amount and substantiality, and the Restored Workprint probably is a filmed version of the Fingers of Fate screenplay. The Restored Workprint version aimed to be the definitive edition of Manos and would have a non-negligible effect on the value of the screenplay.  There was a limited market for the original work and the Restored Workprint version has not helped further efforts to market the original story.

The parody film FELT : The Puppet Hands of Fate would fare better in this regard.  If MST3K was able to rely on the transformative exception, then it could release everything it ever broadcast without regard to the rights holders of the underlying films it parodied.  MST3K does not, it seeks a license from the rights holders for any non-public domain films before releasing them on DVD or via streaming.

The Ethics of the Reproduction Cartridge

Reproduction cartridges are, in many cases, illegal.  They constitute a copyright violation because they contain an unauthorized copy or derivative work and often can constitute trademark infringement.  For many people, that would be the end of the discussion regarding the ethics of making unauthorized reproduction cartridges.

When ROMs are available for download at no cost and hacks and translations are simply available in freely-available software patches, usually it is not for profit and therefore less of a morally challenging issue.  But when you put this software into a cartridge and sell it, things start to weigh into the immoral area of the morality scale.  Even in this illegal world, there degrees of ethics and moral compromises when selling reproduction cartridges.

Not every reproduction is illegal.  For example, Beggar Prince was originally released in Taiwan in the 1990s, but Super Fighter Team secured the rights to it from C&E, translated it, fixed many (but not all) of the bugs and released it on a Genesis cartridge in 2006 and off and on ever since.  You can buy Beggar Prince and other cartridges from Super Fighter Team secure in the knowledge that you are buying an authorized product.  Similarly, Piko Interactive secures permission to release unreleased SNES games with the permission of the rights owners.  However, the guy who runs Piko Interactive used to have a separate label called RetroQuest which sold reproductions without authorization.

Here are some categories of games where the moral issues of reproduction cartridges become increasingly difficult :

1.  Pirates

Games like Somari and Final Fantasy VII for the Famicom go in this category.  In this case, the reproducer is a thief stealing from a thief.  The Taiwanese and Chinese pirate outfits who programmed these games use graphics and sound and often code taken directly from the games whose success they are trying to cash in on.  Final Fantasy VII for the Famicom also liberally helps itself to graphics from the Famicom Final Fantasies.  However, there is usually some original content here.  Does whatever original content lose all moral rights to protection because it is coupled with stolen content and sold with the intention of profiting off the creativity of others?  If someone made a reproduction of Leisure Suit Larry and the Long Look for a Luscious Lover, it would also fall into this category.

2.  Prototypes

Time Diver: Eon Man, the prototype versions of Maniac Mansion and the English translation of Final Fantasy II, and Star Fox 2 fall into this category.

In this case, the original cartridges were usually supposed to be destroyed or returned to the publisher or developer.  Other times, they were simply abandoned as trash when a company went out of business.  In the first sense, the person who buys a prototype may really be buying stolen property.  There is assumption that a 35mm print of a feature film in a private collection has a questionable chain of title. In the second, there are complicated questions of whether something was truly abandoned or whether the copyrights remain for the artistic elements or because of a finished game.  However, video game companies usually had atrocious storage abilities, so the first scenario may very well become the second scenario if someone did not rescue it.

Especially in the case of prototypes which never saw an actual release, there is an important concern in preserving these games and distributing them far and wide.  Star Fox 2 and Earthbound Beginnings are important examples of prototypes that should have been released then and provide a lot of enjoyment since.  Unfortunately, copyright law will protect this software for as long as it would officially published software, so if it is not distributed, it could be lost.

In Earthbound Beginnings' case, Nintendo has recently made it available on the Wii U Virtual Console.  This is unfortunately only one example of a prototype receiving official exploitation.  [Update : in 2017 Nintendo made the final, never-leaked version of Star Fox 2 available for the SNES Classic Mini, finally giving fans of the beta version and a franchise a legitimate way to play the game.]

3.  Contest & Limited Time-Availability Games

I include Nintendo World Championships 1990 and its successors in this list.  These games typically used unique hardware on their PCBs, making them unplayable as intended with ordinary hardware.  Also, one should consider the Sega Genesis Sega Channel Games and the SNES BS Satellaview games as also falling into this category.  The Nintendo Campus Challenges, 1991 (NES) and 1992 (SNES), and Nintendo PowerFest '94 cartridges also fall into this category.  They were never released to the public but were playable by the public for a period of time, often short

Nintendo World Championships 1990 gray cartridges were given to competition finalists and could be won as gold cartridges in a Nintendo Power competition, but Super Star Fox Weekend (Official Competition) and Donkey Kong Country Competition Cartridge were offered for sale in Nintendo Power.  Their print runs were low so they command high prices.  I actually did purchase a  Super Star Fox Weekend cartridge from Nintendo Power and regret the day I let it go.

4.  Hacks & Translations

Hacked games like Zelda Outlands and Super Mario Bros. 3 Mix fall into this category.  In this case, the reproducer is rarely reproducing his own work.  In this case, the reproducer is profiting off the hard work of not only the original developer but the hacker, who released his hack to the public gratis.

Porting a Famicom game to the NES often involves applying a translation patch.  Popular titles include Lagrange Point, Splatterhouse: Wanpaku Graffiti, Final Fantasy II & III and Sweet Home.  SNES games include large RPGs like Tales of Phantasia and Star Ocean.  Not only do these games need to fit hardware, most have to be translated as well.

Japanese Famicom games are playable with a pin converter and a minor modification for those games with expansion audio.  Japanese Super Famicom and N64 games are playable either by putting them in a SNES shell or breaking off a pair of tabs inside the SNES or N64.  Sega systems require a pin converter (Master System) or a trivial mod (Genesis).

Virtually no reproduction outfit produces their own translations, they use the typical translations available at romhacking.net.  (Super Fighter Team is a notable exception) Here is another ethical issue, not only is the reproducer profiting off the original game but the translator's efforts.

5.  Extremely Rare Release

This is when you make a reproduction of rare games like Little Sampson or The Flinstones: Rescue of Dino and Hoppy.  Collectors often react with scorn for these reproductions, even when the seller clearly states that it is a reproduction cartridge.  Many rare games use common boards and can be converted with little more than an EPROM programmer and a soldering iron.  Considering the high prices that sellers tend to charge for these, it is much cheaper to buy a NES PowerPak or Everdrive N8 and play these games with a multi-cart.  Collector-oriented sites like NintendoAge and AtariAge have no compunction about allowing forum members to sell cartridges falling into ##1-4 but get into a real hypocritical frenzy when it comes to #5.

I am aware of video game completionists who have to have every game on their shelf.  They may buy a reproduction to fill a hole, but while may satisfy their OCD-need to fill a hole, the reproduction will never legitimately acquire value anywhere near the real cartridge.

Consider Stadium Events, by far the most pricey of any licensed NES cartridge.  It is estimated that only 1,000 survived the recall when Nintendo took over the distribution of the Power Pad from Bandai.  Nintendo subsequently re-released it as World Class Track Meet, both individually and as a multi-cart with Super Mario Bros. and Duck Hunt.  WCTM in both releases is very common and has only cosmetic differences with Stadium Events.  There is no legitimate reason to make a reproduction of this game when the gameplay is so readily accessible.

Piko Interactive made a reproduction of Super Noah's Ark 3D for the SNES, but it obtained the permission of Wisdom Tree to release it.  Its reproduction uses a standard SNES shell instead of the unique one the original release used.  It also does not require an official cartridge to be plugged-in to a passthrough connector to bypass the lockout chip, unlike the original from the 1990s.  Clones of the SNES lockout chip exist which will allow the game to work with regular consoles.