Transferring 16mm Prints

[Will2]

This may not be the best place for this question since we're so international here, but I was wondering about the legality of taking 16mm film prints of old educational films and even movies and transferring them to a digital format. It seems to me that in the U.S. there was an idea that you were allowed to make one copy of something you own for backup purposes as long as you didn't sell or even trade that copy.

Does something like that hold for films? I own many old 16mm educational films that I would love to transfer but I'm curious about the legality of that.

The flip side I'm also curious about. I wouldn't spend the approximately $12,000 it would take to do this, but what if someone wanted to take the completely restored 4k version of the original King Kong and output it to 16mm film? You'd be making a negative and a positive print so maybe that exceeds the leeway given by copyright law.

Just curious.

[Andreas Wideroe]

Hi Will,

Just a short comment: In Norway you are free to make copies for yourself as long as you own a copy of the film (privately). You are not allow to distribute obviously.

Do you know if perhaps your films could be PD by now? Public domain?

Perhaps AV Geeks could help you. Skip Elseheimer holds perhaps one of the biggest 16mm educational collections in the States and I know he transferred many of them.

https://www.facebook.com/avgeeks/

Best,
Andreas

[MovieStuff]

I'm not an attorney but I will tell you what I understand the law to be here in the USA. In short, if you don't own the copyright, then you aren't allowed to copy it. The fact that the films are old doesn't necessarily mean anything. In fact, one of the problems facing restoration of some "classic" films from Hollywood is that, unless the copyright holder can be found to give permission, any work done to restore the film proceeds at risk. It has been a common occurrence where the copyright holder knowingly waits while restoration of his film proceeds and then, once completed, suddenly emerges from obscurity and lays claim to the film and, as part of a settlement for copyright infringement, lays claim to the restoration, as well. That's why there are a large number of classic movies that have yet to be restored.

Now, relative to your old educational 16mm films, the bottom line is that you don't own the copyright. However, there is a grey area that pertains to "migration" from one defunct format to a more contemporary format for the sole purpose of protecting your investment in your audio/visual item. You have a right to view your films but you aren't required to use an old projector which might endanger your library. If a new projector is no longer made, then you can migrate your films to another format. But, here's the tricky part, you can't hire someone to transfer your films. You are allowed to make a copy for your own use (if you have the means) but the person you hire can't or they are in violation of copyright law, even if they do it for free, unless that film isn't available on video already.

This may seem weird but it makes more sense if you think of music. Let's say you have an old commercial 8 track tape of an album. Are you allowed to press a button and copy that album to a CD to preserve it? Yes. 8 track tapes are a defunct format. Can you hire someone to copy that music to a CD for you? Only if that album isn't available already on a commercial CD. If the album in question exists as a CD, then the person you hire to make the CD is legally robbing the artists/producers of a potential CD sale, even if the person you hire does the work for free. The term "copyright" is strictly about the right to copy; not the right to make or not make money from the process.

It is for this reason that we did not include a sound head for the 16mm gate on the Universal. When someone walks into a small mom and pop transfer shop with a 16mm print with sound, that means it's a commercial film since 16mm home movies don't have audio. Commercial films always have a copyright and it's an odds-on bet that the person bringing in the film doesn't own the copyright. We used to make the Sniper-16 units with audio and they were a pain to build. But, after doing a small survey, I found that most of my equipment customers were using them to transfer only silent films because they didn't want to take a chance on getting busted for copyright infringement ($50,000 fine per offense!). So we were killing ourselves including a sound feature that most of our equipment buyers weren't using. When it came time to design the Retro series, I decided to keep things simple and leave off audio. Granted, there are organizations out there like schools, television stations, government, etc that have a library of commercial films that they own the copyright on but those types of customers are the exception and not the rule.

Is it safe to go ahead an copy a commercial 16mm film for a customer? I can only yell you what happened to us. Long ago, a customer came in with a black and white 16mm film that had been amateurishly shot off a television screen. In truth, it was a really great home-brew kinescope of a hometown bowling tournament back in 60s that was featured on Wide Workd of Sports or something. The customer's uncle was a competitor in the tournament so his brother shot the film off the TV "live" for posterity (no VHS back then!). Anyway, we had them sign an indemnity form. It basically said that they made no claim to the copyright and that we were migrating the film to digital for their own viewing pleasure and that no further copies would be made nor allowed to be made. It also said that they would pay for all legal expenses in the event there was any issues with the copyright holders. So they signed the form, we did the transfer and made them a single DVD of their film. Fast forward 3 years and we get a nasty letter from ABC network lawyers about copyright infringement regarding the film we transferred. Turns out the customer had made several copies of the DVD and handed them out to relatives as gifts. Eventually, some of the footage ended up in a bowling documentary because the relatives knew nothing about the indemnity letter and offered up the DVD to someone who knew someone else who knew a guy making the documentary. Luckily, we had the letter so we managed to squeak by, liability wise. But, here's the thing: Out of hundreds of 16mm transfer jobs, this was the ONLY time we ever transferred a film with a copyright and had I not made the customer sign an indemnity letter, I could have lost my business.

So, proceed with caution. ;)

Roger

[Will2]

Good insight Roger. This is totally for my use, but in the digital age I can see an issue once a digital copy is made it could easily "get into the wild" if you're not careful. How lucky you were to ask for that release.

So the idea of making a 16mm print from a Blu-Ray is pretty much out...although of course that was just an intellectual exercise due to the cost of something like that. It would be hard to justify as a "backup".

Andreas, good idea to see if any of the titles are public domain. If they are then it would be great to make them available to people to view.

[Will2]

Is it safe to go ahead an copy a commercial 16mm film for a customer? I can only yell you what happened to us...

Now that I think about it, how crazy that these days people are CONSTANTLY shooting the TV set and posting clips from major networks on YouTube. Yet you get a cease and desist letter. But then if someone was stupid enough to take one of those YouTube clips and use it in a documentary without getting permission I'm sure they'd get a letter too.

Just to be clear, I'm 100% in favor of copyright protection; I know that's how artists get to do what they do even through giant corporations and I'd never try to make money or deprive money from copyright holders in any way.

[Tscan]

I'v gotten into scanning prints lately with the Retro unit and AEO light app. I've posted a couple on Vimeo but i'm not worried about anything over copy rights since i'm sharing it for free. I've been gathering prints recently because it's amazing to think of how much information is spooled up over how many generations and sitting dormant. It's fun to bring it back to life. I figure the odds of someone with owner rights coming across a reel from 1973 on my vimeo page, then trying to sue me are lesser odds of me winning the lotto.

It's interesting to watch something like this from 1973 and realize that not much has changed, despite many insisting otherwise
https://vimeo.com/190741990

[JonH]

Although Roger indicates he's not an attorney, his writing could be used as a brief on the topic, sans specific court case citation.
The best course is to never convert ANY copyrighted material without the express written permission of the owner, unless it is truly for personal use and will never EVER be disseminated to anyone but yourself.

It is within the realm of possibility that an upstart copyright lawyer could lay a cold call into you (if you are in the business of conversions) to see if you might take the bait from an operative. Unless you are willing to give your house away, it's just not worth it.

As always, well done, Roger!

[Will2]

I've posted a couple on Vimeo but i'm not worried about anything over copy rights since i'm sharing it for free.

You're a brave soul. I wouldn't suggest doing that.