They’re Coming to Get You, Barbara. You Didn’t Reserve Your Rights.

In 1968, George Romero finished his film “Night of the Living Dead.” While first theatrical distribution of the movie was taking place, the title of the movie was changed from “Night of the Flesh Eaters” to “Night of the Living Dead” soon before theatrical release. In the process of changing the title of the film, the Walter Reade Organization (in charge of the theatrical distribution) neglected to add the notorious (c).

Thus, the film was released theatrically in 1968 without a claim to copyright. Under the applicable law of the time, the owner of a copyright lost all rights to a work if he did not affirmatively claim copyright in the work’s initial publication, so the movie immediately lapsed into the public domain. Since this time, the movie has been one of the most downloaded feature length movies extant in the public domain.

This draconian law of forfeiture led the motion picture and music industries to lobby Congress for greater copyright protection during contemplation of the Copyright Act of 1976 and, eventually, accession of the United States into the Berne Convention in 1989. The result of this extensive lobbying effort caused a great change in the paradigm of copyright. Where every work was presumptively unprotected before  (because a work would lapse into the public domain absent an affirmative claim to copyright), after the accession to the Berne Convention by the US, works were presumptively protected.

Indeed, the Berne Convention obligates countries to abandon requirements of formalities in gaining copyright protection for their works. Having no formalities means that copyright protection attaches to a particular work as soon as a work is created. No formalities also means that no paperwork needs to be filled out to maintain copyright protection. In the current state of the law, a copyright holder need not claim copyright or maintain copyright, he only needs to create. Upon creation of a protectable work, copyright attaches and remains for the life of the author plus 70 years.

In order to be in compliance with the Berne Convention, the US was required to remove all formalities form its copyright law. As the word “formalities” includes those applicable to securing copyright and to maintaining copyright, the norms of copyright registration and copyright renewal after a specified term were removed. Thus, as soon as a creative work is created, it is protected irrespective of whether it is registered; renewal is now automatic. The end result of these new laws is that any and all creative works are protected for 70 years after the death of the author.

One of the major flaws of these new laws is that permission is now presumed to be required to use a work, as copyright attaches at the creation of a work, not to any formal requirement. Also, the public domain will not grow significantly until 2018. However, in celebration of the public domain and some of its pioneers, like Eric Eldred, I am screening Night of the Living Dead at my school this Friday.