Another copyright case

[Aaron Gerow]

Just on the heels of the court decision about Roman Holiday, the Asahi 
reports of another case involving cheap DVDs sold in Japan. TRoy Export 
Company Est., headed by Geraldine Chaplin and others, is suing two 
Japanese companies for selling DVDs of 9 Chaplin films for 500 yen 
without permission. The same films are being sold for 5000 yen with 
permission of Roy through Kadokawa.

The gist of the case is this. According to the addendum to the new 
copyright law of 1971 (which replaced the old Meiji-era law), the 
length of copyright can be calculated under the old law, regardless of 
the stipulations of the new law, if the length under the old law is 
longer. One of the provisions of the 1971 law (which was amended in 
2003) was to extend the copyright period to 50 years from 38 years. 
However, from what I understand reading the old law (and again I AM NOT 
A LAWYER), it is much more ambiguous about how to calculate the length 
with regard to movies. Article 22, Section 3, says that length for 
films will be figured according to Articles 3 or 6. But these specify 
different cases. Article 3 says it is 30 years after the death of the 
author (later amended to 38 years), Article 6 says it is 30 (38) years 
after it is released if the name of the author is that of a company. 
Roy is clearly arguing that Chaplin was the author of his own films, 
and thus that Article 3 applies and the copyright does not expire until 
2015 (since he died in 1977). I imagine that the DVD makers will argue 
that Article 6 applies.

I would speculate that it was precisely to prevent such conflicts that 
the 1971 law introduced in clear form the provision that the copyright 
of films resides in the company if the author agrees to participate in 
the production. Even more than with the Meiji law, the 1971 law makes 
it clear that anyone who participates creatively in a film is an 
author, but to avoid situations like the one above, specifies that none 
of them have copyright privileges.

We will have to wait to see how this court case goes, but what might it 
mean in terms of the discussion we've been having about public domain? 
First, it does make things a bit stickier with some films. With the 
grand majority of studio films, we can argue that Article 6 applies and 
thus that anything made before 1933 is public domain (the 1971 law, as 
with the 2003 amendment, stipulates that the new law does not apply to 
works whose copyright has already expired, which means anything made 38 
years before 1971 was public domain at that point). Any studio film 
made after 1933 was protected by the 1971 law, but anything before 1953 
lost its copyright protection before the 2003 amendment and is also 
public domain. The problem is that some might, like Roy, try to use 
Article 3 in the old law to argue that copyright still holds for some 
works made before 1971 depending on when the author died. I suppose, if 
this is possible, that it can only be done in cases like Chaplin's 
where the director/artist also owned the company, or where it really 
was an individually made film. (The former case, however, kind of steps 
on the rights of everyone else who participated in Chaplin's films, so 
it does sound rather arrogant to me.) Part of this case may revolve 
around whether Chaplin films like Modern Times were made by a company 
or by an individual artist.

In general, this case could create problems for those working with 
pre-1971 films made in director-run independent production companies or 
individually made experimental films. (Keep in mind that after 1971, 
the copyright period for even individually made experimental films is 
50 years after they were made, regardless of when the filmmaker died.) 
We'll wait to see what the courts decide.

Aaron Gerow
Assistant Professor
Film Studies Program/East Asian Languages and Literatures
Yale University
53 Wall Street, Room 316
PO Box 208363
New Haven, CT 06520-8363
USA
Phone: 1-203-432-7082
Fax: 1-203-432-6764
e-mail: aaron.gerow at yale.edu