Who has the right to show preserved films?

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Preserving a film is a meticulous, demanding endeavor. But it's nothing compared to the complex process for clearing the right to distribute some films once they're restored.

Archivist and copyright expert Rick Prelinger knows this all too well, and he's working with the San Francisco-based National Film Preservation Foundation to make it easier to distribute restored movies such as 1911's "Manhattan School for Girls."

Copyrights for newly created works last for 70 years after the death of the creator (or 95 years after publication for works-for-hire with corporate authorship). But the law wasn't always this straightforward. For films created up until the early 1960s, most copyrights had to be registered and renewed after 28 years. Many creators failed or chose not to secure their rights -- especially for nonstudio films like advertising and educational videos -- leaving the works in the public domain.

Figuring out which films are public is often an arduous task. Archivists like Prelinger must search the Library of Congress records to try to determine whether the work has rightful owners. For feature films, authors of the underlying literary works (or music) must also be located. Many prospective distributors are unwilling to risk using so-called "orphan" works (those whose owners cannot be located) because the penalties for copyright infringement are swift and damaging. As such, orphan works often fall into obscurity despite their artistic and potential financial values.

Prelinger is hoping to change that, testifying before Congress to alter copyright law to facilitate more open access to orphan works.

"We're hoping the law changes so libraries and archives can do a best-effort search, but if the copyright holder later emerges, he or she would get (only) a fair payment as a license fee," Prelinger says. "He or she would not be able to stop the movie from being shown or keep the book off the shelves."

Some content owners have balked at what they say would be a loosening of copyright protections. (Prelinger is known as a critic of copyright laws and is a plaintiff in a lawsuit challenging the most recent law extending protection for 20 years.) But he's received support for his efforts from producers, which might seem unlikely given Hollywood's reputation as a fierce protector of intellectual property.

"But they're also the most likely to want to use these older films," Prelinger says. "They know that it's easier to make new films if you have access to some of the old ones."
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