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This page is intended to help you get a better understanding of the legal concepts in the chart and case-summaries sections.  The works selected for this page have copyright status that is determined by a variety of intertwined, overlapping, overriding, and even conflicting aspects.  This makes them poor choices for discussion on the chart pages but ideal subjects for long-form dissection as given here.  The confluence of diverse legal rules described in the inquiries opens a greater possibility than on other works of error creeping into the probes.  In any event, definite conclusions are not offered, although the reader should come away with a greater understanding of how the diverse legal principles fit together.  As with elsewhere on this site, no legal liability is undertaken by the website proprietor, and any user of this web site who takes actions based on the information herein must accept any risk for consequences.

Before reading these probes, you should be familiar with the main ideas on several pages, particularly the illustrations page on foreign copyrights, as well as the main chart page and the illustrations pages and the citations and case-summaries pages.  For the convenience of the reader, links to these other pages are included as appropriate.  The main chart page remains the key page of this web site, and is accessed here.

Alfred Hitchcock’s “The 39 Steps” (1935)

  

Alfred Hitchcock made the first film version of The 39 Steps twenty-one years after John Buchan published the novel by that title.  (In actuality, Hitchcock retained only the basic situation and some major characters from the novel.  It could be debated that the screenplay does not constitute a derivative version of the novel.)  Hitchcock had earned a reputation for quality films at a time when most British films were considered by American distributors as unworthy of release outside Britain, so Gaumont British distributed few of its films in the United States.  Gaumont British also asserted its prerogative as maker of the film to register the film for its American copyright.  Regardless of whether it had been Gaumont British or an American affiliate which registered the American copyright, that registration had to be renewed during the 28th year of the term (according to the law in effect prior to 1978).  No renewal was filed.

The fact of no copyright renewal put the film in the public domain in the United States from late 1953 until (potentially) the URAA/GATT legislation of 1994.  To determine whether The 39 Steps remained in the public domain after 1994, it is necessary to consider multiple factors.

The lack of an American copyright renewal during the 28th year of the American copyright registration can be established in several ways.  An examination of each volume of the Catalog of Copyright Entries for the anniversary year of the American copyright term reveals no record of renewal.  (See the illustrations page on researching the copyright status of a work to see more on this subject.)  A search report from the U.S. Copyright Office will indicate the same.  (For a sample of one of these, and information on how to interpret one, see the illustrations page on researching the copyright status of a work.  A search report for a different film appears in the next section of the present page.)  Were it the case that a copyright renewal were filed, under American law the film would be entitled to copyright protection until 2030 (which would represent a total of 95 years.)

Under §104A of the Copyright Act, a foreign work which lost (or never had) U.S. copyright protection owing to failure to fulfill paperwork requirements earned in 1994 the opportunity to regain U.S. copyright protection — provided that certain conditions were met.  In §104A(h)(6)(D) it is stated that, for a foreign work not protected by timely American copyright registration and renewal, post-URAA/GATT copyright protection in the United States is subject to whether the work was or was not first published in the United States in the thirty days following its first publication in an appropriate foreign country, and also subject to American publication not having occurred prior to eligible foreign publication.  (The exact quote from the law, and details on how the statute works, is in the illustrations page on foreign copyrights.)  The questions that need to be answered are: (a) when was The 39 Steps initially published in an eligible foreign country?, and (b) when was it initially published in the United States?

One copyright date is given in the Catalogue of Copyright Entries, in the 1935 volume covering motion pictures, on page 261:

Is that date the American publication date or the British publication date?  There is no answer here.  An additional date is provided in the registration log maintained by the Copyright Office:

As with the listing from the registration log reproduced on the illustrations page on researching the copyright status of a work, the date at the left is the receipt date for the copies.  The listing directly above also has a date at the right, which is the publication date, as shown larger (along with the claimant) in the detail directly below:

There are two dates, but nothing indicates whether either should be taken as evidence that American publication followed British publication, nor whether the American followed by more than thirty days.  To find more information, it is possible to examine a card that contains copyright information on the film, stored in a card file maintained by the Copyright Office.  This additional information was filled out at the time of the copyright application.  (Because this card has two sides, the card is reproduced here as two images.)  The card has the following information:

Even here, there is no indication whether the American and British publication dates were different, but the card does specify that the June 6, 1935, date is specifically the date of publication in London, England.  The possibility is left open, therefore, as to whether the initial American publication occurred at another time.

(Side point: take note that the file card indicates that the American registration is for a “Motion-Picture Photoplay Reproduced For Sale”.  This indicates that the registration is for a work intended as published as against unpublished, as would be the case for a film exhibited to such a minor extent that its exposure would not constitute publication.  The significance of publication status with regards to the necessity to formally register copyright on a work, is dealt with on the illustrations page on publication and some of the citations and court summaries pages which link from it.  Those who have not done so should read the summary of Frederick Beck Patterson v. Century Productions, et al.)

With the records of the United States Copyright Office seemingly exhausted, it becomes appropriate for a researcher to look for an answer elsewhere.  Whether the lack of a definitive answer within the Copyright Office records affects copyright eligibility is a question that won’t be answered here.

In seeking answers from credible sources of information, it can be determined that The 39 Steps was reviewed in The Times of London on June 6, 1935.  An article in the same newspaper dated June 10, 1935, indicates that the film had already been reviewed in the paper.  The contents of this newspaper (the most revered in the United Kingdom) can be searched online.  In conducting a search on the title of this film, enter it as “Thirty Nine Steps” because the newspaper spelled out the number, even though numerals appear on the opening title of the film itself.

The Times of London thus substantiates that the film was exhibited in England — seemingly for the first time — on the date that the copyright claimant declared to be the British publication date.

Examination of various successive issues of the American trade magazine The Motion Picture Herald indicate that The 39 Steps went into American release on August 1, 1935.  This date is announced as the intended release date prior to release in the issue of July 27, 1935; remains the date of stated release in the issue of August 31, 1935; and still has not been changed as of the issue of December 28, 1935.  A rival firm’s reference annual, The Motion Picture Almanac 1936-37, reports the same release date of August 1, 1935.

Is there a reason to doubt this?  The New York Times review appeared September 14, 1935.  This is three months and eight days after the date of the review in The Times of London, and is also a month and thirteen days after theaters could first book the film (according to the information in the two American trade resources).  September 14, 1935, was also the date of review in American trade publication Film Daily.  (Oddly enough, The Motion Picture Herald managed to review The 39 Steps is its issue of July 6.)  From the online archives of the Los Angeles Times it can be established that this newspaper didn’t review The 39 Steps until September 8.  (As with the London newspaper, the Los Angeles one spelled out the numeral.  The Los Angeles Times mentions in its review a theater where the film began its run the previous day.)  What the accumulated evidence suggests is that theaters could theoretically book the film August 1 yet seemingly no theaters in two large metropolitan areas did so for over a month.

June 6 is thus (1) the review date in the London Times, (2) the publication date (specifically in “London, England”) on the Copyright Office file card, and (3) the publication date on other Copyright Office records, but June 6 is apparently not anywhere near the date that the film first played in New York City and Los Angeles, unless the Times of each city waited over three months to review a film from a director that The New York Times already regarded as significant.

August 1 or early September?  Does it matter which saw the American release of The 39 Steps?  Not in the present context.  August 1, 1935, is more than thirty days after the publication in the country of origin, just as is all of September 1935.  As such, an American publication date of either August 1 or one in Septemberqualifies The 39 Steps for “restored” American copyright under §104A(h)(6)(D).

Which date should be regarded as the American publication date — and what are the consequences of that determination?  If June 6, 1935, the date is chosen on the basis of Copyright Office documents (which are inconclusive), but the result is that the copyright fails the thirty-day test under §104A(h)(6)(D) and thus the film remained in the public domain.  If August 1, September 7, September 8, or September 14, the copyright passes the thirty-day test and thus the film is entitled to “restoration” of copyright under §104A(h)(6)(D).

Although the American dates every time prove to be more than thirty days after British publication, you as a reader of this page should be prepared to understand that not on every foreign work will each date be thirty days later than the publication in the relevant foreign countries.  Thus, in instances where one American date is within thirty dates of foreign publication and another American date is not, the guidelines implied in the preceding part of this page may reveal instances of a foreign work which is not eligible to enjoy American reciprocal-treaty copyright protection.  (The preceding “exercises” page of this web site, which concerns domestically-made works, reports on one work which seems to be denied reciprocal-treaty copyright protection in the United States but for the American publication having preceded publication in the creator’s country of citizenship.  (Go there)

 

The Third Man (1949)

  

For the classic post-WW2 British film The Third Man, information provided by the Copyright Office is remarkably informative and without the ambiguities indicated in the above discussion of The 39 Steps  On the Copyright Office Search Report (see illustration above), there are precise statements that the British publication date was August 31, 1949, and the American publication was October 28, 1949.  This places the American date after the British, and there is a difference of more than thirty days.  Although the search report juxtaposes the British publication with the American registration, the dates themselves are stated to be publication dates in both cases.

The Third Man had been copyrighted in the United States in 1949, but this copyright was not renewed during the window for renewal, which on this film ran from August 31, 1976, to August 31, 1977.  The film then entered the American public domain, and quickly became a popular offering from 16mm and Super 8 distributors who took advantage of their not having to pay licensing fees.  When the homevideo revolution came into being, The Third Man could be had from numerous VHS distributors as well.  This status lasted only until the 1994 URAA/GATT legislation took effect.  The Third Man easily passes the thirty-day test for eligibility for “restored” American copyright under §104A(h)(6)(D).

 


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