Toho sues again

[Aaron Gerow]

The Yomiuri and other news services report that Toho is suing Cosmo 
Contents for putting out 8 Kurosawa Akira films on DVD and violating 
copyright.

Details are sparse so far, but this is what I think seems to be 
happening. What is curious  is how Toho is deciding to pursue this. 
Courts have already repeatedly declared films made before 1954 to be in 
the public domain and thus have okayed cut-rate DVD producers like 
Cosmo. Toho is trying to get around those rulings by suing under the 
old copyright law, which technically still is in effect if the 
copyright lasts longer than under the new law (instituted in 1971). The 
old law states that films "with originality" are to be treated 
differently from those without originality. The latter is only 
protected for 10 years, but the former enjoys a longer period. What is 
odd is how Toho is interpreting the law. The law states only that films 
"with originality" are treated in one of two ways: either copyright 
will be for 38 years after the death of the author or for 38 years 
after it was released in the case of works with corporate copyright. It 
does not make clear which is to be applied in which cases (I do not 
know court precedent in this regard). Toho, as well as all the other 
film companies, have long argued that the copyright resides in the 
corporation, and that in fact is how the new copyright law changed 
things: it eliminated the ability of individual authors in a studio 
production to claim copyright and made copyright reside in the company, 
thus "clearing up" the ambiguities of the old statutes at the expense 
of film directors et al. Now, however, when Toho realizes its films 
before 1954 are in the public domain, it argues that Kurosawa, who died 
in 1999, is now really the author of these films (and, in an odd twist 
of logic, that Toho deserves to be paid for use of them).

Perhaps this argument is just as illogical as in the cut-rate DVD cases 
where the Bunkacho was arguing that 1954 is really 1953, but this case 
deserves our attention.

Does this mean that Okamoto Kihachi's family can now sue Toho for full 
possession of copyright? Is Toho giving in to the Film Directors' 
Guild? Or is it just grasping at straws?

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