OK to use public domain film in a scene?
 

I'm a writing a script (which I will also produce and direct) in one scene of which I'd like to have a movie buff character watching an old classic film--likely either Detour or The Cabinet of Doctor Caligari, since both of these films mesh with certain thematic elements in my script, and because I understand that they are both in the public domain, meaning that I might be able to use this material without having to worry about any copyright issues.

Am I missing something, or wouldn't this be completely legal?

Thanks in advance for any replies.

If they really are public domain. Check with a lawyer for sure.

They have correct legal definitions of "Public Domain" at http://www.archive.org along with tons of public domain video. Yes, it's legal to use as you see fit...Unsure about the attribution of such, when I used a bunch in a recent short, I referenced title and that it was curteousy archive.org.

Thanks Steve, but is there really no way for sure to find out other than paying a lawyer $3000 for a 3-minute meeting? I guess I should have asked this in my original post.

And Cole: Yeah, I already saw both of these at archive.org and google video and so on. I'm just trying to be absolutely sure about this without having to pay thousands of dollars for that surety. If I have to talk to a lawyer, I'd rather just write the scene a different way.

Where would you get the media from? I honestly don't know how this works, but I suspect the original film might be public domain while a DVD release might be copyrighted since it's been changed to another medium and may have been restored, edited, etc.

For starters I would look at any copyright notices on the actual media you plan to use.

Nyahh, that 3 minute consultation shouldn't run you more than $1500 tops!..<grin>

Actually it wouldn't be anywhere near that much. I understand that there have been a number of works that had entered the public domain a while back whose copyright has now been 'reclaimed' by recent changes in the law so I'd want to get for-real legal advice before taking the risk.

That's exactly the kind of thing I was afraid of. It seems ridiculous that copyright holders would be able to reassert their claims after a work has already been in the PD, but color me unsurprised. Correct me if I'm wrong, but don't precedents like the one you mention effectively extend copyright into infinity, since anything even legitimately now in the PD might one day be reverted to copyright status, thus making anyone who used that material in the PD period a criminal? Is there any end to the madness that is U.S. copyright law?

You would be correct. The content might be public domain, but not necessarily the version you have. It's similar to music rights where a song itself might be public domain, but a particular performance, specific arrangement and/or particular recording can still have copyrights attached.

Well, in my particular case, I'm pretty sure that the large MPEG-2 versions of these movies at archive.org would suit my purposes. It seems very clear that there's nothing copyrighted about these particular versions, though I do still have at least some small doubt about the status of the films themselves, and about my rights (or lack thereof, as the case may be) when it comes to showing someone watching them in a movie.

What I seem to be hearing is that the only way for me to assuage those doubts is to consult with a copyright lawyer. Since by the time I have something like that in my budget I might as well just go ahead and fork out for permission to use something that's copyrighted, I have to wonder if the most desirable course of action isn't just dropping this scene from my script and being done with it.

If only I had a swarm of crafty, highly-paid lawyers at my disposal. Score another one for the massive corporations; the little guy's score is still less than zero.

Oh please, plenty of lawyers work in small practices and corporations are in the business of returning a profit to their shareholders, not to help you make your movie for free. Lawyers spend a lot of time and money becoming lawyers, and deserve to get it back.

Is there a writers center or an art center near you? Some of those offer free legal advice after you join (usually a small fee).

That being said, Research as much as you can and then if you think you're in the right I'd say go ahead and use it. If you're ever questioned about it, you can explain that you did due diligence and it appeared clean. Normally, the first step would be for them to order a removal of the material and maybe request legal fees.

Things like this can be tricky, and there are definitely times when you can't afford an attorney. Research as best you can, then pull the trigger.

You can also call an appropriate lawyer and let them know where you stand. They may be willing to answer a question or two. I've had good luck with this.

I never made any claim to the contrary; obviously this is true. My point was more that the corporations have the money to influence copyright law both through their highly-paid legal staffs and resulting legal precedents, as well as through their ability to influence the actual legislation in the first place. The little guy has to play by their rules, and yet he hasn't got the money to play by their rules. I'm not moaning about it, just stating the obvious out of frustration.

Of course they deserve to get it back. They just won't be getting it from me. :)

You do offer some good advice here, but at some point I have to weigh the dramatic necessity of including this scene against all of the trouble it might potentially cause EVEN if I can prove due diligence. As Steve pointed out, copyright law can be rewritten at any time to extend to work already in the Public Domain. And at the same time, even if a very qualified lawyer were to tell me I'm in the clear by using this material, there's possibly nothing stopping some other crafty lawyer who wants to sue from using some precedent or obscure piece of code to make his or her case against me. If any suit whatsoever is filed against me--even if it gets laughed out of court--it's still a disaster, because I can't afford the legal fees. If were, say, Paramount, I'd settle for due diligence and then be prepared to make a settlement if anything nasty happened. I'm not Paramount though, and so I can't afford even this tiny little risk. I'm obviously being quite paranoid here--but note that this kind of paranoia is exactly what the media corporations are trying to instill in the general populace through their relentless litigation of every tiny little potential infringement (not that I'd be likely to do anything differently than they do if the shoe were on the other foot, mind you). This is what I mean about the little guy being up the creek. But such is life.

Depending how relevant it is to your work you may then want to forgo the idea or go the lawyer route.
A quick check of the LOC website lists 18 entries for Cabinet of Dr. Cal. It looks like each time a re-edited, restored, resubtitled version is created, that iteration falls under a new copyright.

You'd probably be safe if you were pulling from the actual film source, but I doubt that's the case. A dvd, vhs, or broadcast version looks like it would carry its, fairly recent, copyright.

Thanks, Reid. What do you mean by the "LOC Web site," by the way?

Again, I'd likely be using the version that's available at archive.org, which is ostensibly free of copyright restrictions. However, I have to wonder if this version isn't simply an uploaded "rip" of one of the copyrighted DVD's you mention.

The fact that the characters are watching this particular movie probably isn't really 100% essential to my story, it's just one thing that occurred to me as a way to comment on the psychology of one character in particular. There are likely numerous other ways in which I could make similar comments about said character's psychology, it's just that him watching Caligari immediately springs to mind as a particularly apt way to do so. I may just end up dropping it entirely, but I feel like it would be a shame if that were necessary.

LOC was for Library of Congress.

Quickest thing is to do a search for "copyright" and it should pop up. It's got a seperate web site, but its under the LOC governance. You can go to www.loc.gov and there is a link to the copyright office.