|
NAZI FILMS
(Part 2): BOOTY IN THE EYE OF THE
BEHOLDER
GERMAN FILMS & UK ENEMY PROPERTY
ACT 1953
By International Media Lawyer Hubert
Best
Back references are to Part One of
this feature
--------------------------------------------------------------------------------
It's one of history's ironies --
given current interest them -- that
when the films from the Third Reich
were made, German copyright law only
protected them for 25 years from the
year in which the film was shown,
or for 25 years after the production
of the film even if it was not shown
during that period. (The equivalent
in the UK at that time was 50 years).
This changed in 1965, when in German
films were granted copyright protection
for 70 years after the death of the
longest surviving person to collaborate
in making the film, but only Filmwerke
("art films") received this
protection. Laufbilde (sequences of
moving pictures) were still only protected
for 25 years from the first showing,
and protection still ended 25 years
after the film was made if it was
not shown during that time. (UK film
copyright protection does not make
this distinction between art films
and newsreels -- they all get full
copyright protection).
 The
sort of treatment which would give
newsreel footage the longer term of
protection includes artistic treatment,
whether in the photography or editing,
imaginative treatment of the events
which are recorded in the film, artistic
selection or arrangement of sequences
or shots, or artistic combination
of pictures and sound.
For example, Victory in the West
contains much actuality footage, but
the way it has been treated to make
up the film as a whole, not to mention
inclusion of other elements such as
the specially composed music, clearly
makes it an art film. Erwin Leiser's
case in 1970 was that the material
he had used was merely documentary
and not creative. It was, therefore,
protected only for 25 years from first
showing, and that this period had
now expired.
This was why he claimed that it "lacked
the personal imprint that is a pre-condition
for it being granted copyright protection".
So Leiser felt that he should be able
to exploit the material without further
payments to Transit. The parties reached
agreement before judgment was given.
Transit agreed that it had no objection
to Leiser using the material abroad,
and claimed no payment for that use.
Nor did Transit object to Leiser's
use of the material in West Germany
even if it should go further than
the licence under which it had originally
released the material to him.
Although this agreement meant that
Transit settled its claim against
Leiser before the Court could give
a judgment, the Court did order Transit
to pay Leiser's costs. One of the
reasons which the Court gave for this
was that Transit had asserted that
the material in question was protected
by copyright, but the Court considered
that it lacked the personal creative
element which was necessary for copyright
protection as an art film. Thus the
Court gave a strong indication of
how the case would have gone -- but
as the parties reached settlement
there was no Court decision to provide
a binding precedent.
BBC Horizon Programme
In 1972 Transit claimed payment from
the BBC for inclusion of material
in a Horizon programme called What
is Race? The BBC paid Transit for
world rights excluding the UK (because
of the Enemy Property Act 1953) and
West Germany (where the material would
not be shown). The broadcast went
ahead uncontested.
Also in 1972 the BBC wanted to use
extracts from Triumph of the Will
for the series The Struggle for Europe.
This time, Transit queried the validity
of the Enemy Property Act 1953 asking
-- as Leni Riefenstahl's solicitor
had more than 10 years earlier --
whether the Act gave the Imperial
War Museum rights in the film or the
authority to sell the reels. It quoted
the international copyright treaty,
The Berne Conv-ention, which had been
revised in 1956 to include films in
the category of works which all the
Treaty's member states must protect
by law to the same degree as works
of their native authors.
Britain was a founder member of the
Berne Convention and Transit claimed
that, as the legal successor to the
Third Reich, its German films should
be given legal protection in Britain
just as UK films were.
The BBC had obtained the material
for the series either from the Bundesarchiv
(which was then at Koblenz) under
contract with Transit, or from the
Imperial War Museum. Transit now claimed
that it had the sole right to licence
UK rights in the material held by
the Imperial War Museum.
However, as a result of investigating
the rights in German material for
The Struggle for Europe, by 1973 the
BBC had become aware not only that
many German films were not protected
by the copyright in the UK because
of the 1953 Act, but also that there
was probably no copyright in Transit's
newsreel material in Germany.
This meant -- the BBC considered
-- that over a number of years dealing
with Transit, the BBC had been paying
copyright licence fees which had "no
foundation in a legal necessity"
(as a quaintly worded memo of the
time put it). In fact, this material
would at that time have qualified
for UK copyright protection, even
though it was not then protected in
Germany.
Arguably Transit should therefore
have been paid for UK use but not
for showing in Germany. Such material
would be out of copyright in the UK
now because, as mentioned, UK copyright
protection for films made before 1957
lasted for 50 years after a film was
first published, and expired 50 years
after manufacture, if it was not published.
Therefore, wartime Deutsche Wochen-schauen
-- those whose copyright had not been
extinguished by the 1953 Act -- would
still have been in copyright in the
UK if the BBC had wanted to use them
in 1973 (but would be out of copyright
in the UK now). Some elements contained
in pre-1957 films, such as a dramatic
plot or incidental music, were protected
for the full 50 (now 70) years after
the authors' death, even though films
as a whole were only given copyright
protection in the UK from 1957.
Believing that the German newsreels
were out of copyright in the UK as
well as in Germany, the BBC proposed
to Transit that it would continue
to negotiate licences with them in
the usual way for copyright art films,
but that it would now pay an access
fee rather than a copyright licence
fee for newsreels and similar material.
Because Transit acted on behalf of
the West German Finance Ministry,
the BBC made this proposal through
the West German Embassy in London.
In the following year (1974), before
an answer had been received, the BBC
transmitted Triumph of the Will complete.
First, Leni Riefenstahl's lawyers
sent the BBC a telegram claiming that
her rights had been infringed. The
BBC replied that in view of the German
Supreme Court's decision in the case
between Leni Riefenstahl and Erwin
Leiser, they were not Leni Riefenstahl's
rights at all, but the copyright in
Triumph of the Will had actually belonged
to the NSDAP (the Nazi Party). Then
Transit wrote to the BBC and claimed
that its copyright had been infringed.
Transit asked for DM 25,000 for a
"licence fee". The BBC offered
£1,000 "as a gesture of
goodwill". Transit claimed that
(through the Imperial War Museum)
its copyright had been infringed;
however the BBC had referred the copyright
question to the government, which
took the matter up through diplomatic
channels, and Transit did not commence
Court proceedings. The BBC withdrew
its offer of £1,000.
Music Cue Sheet
Then came another twist. The Mechanical
Copyright Protection Society (MCPS),
which collects royalty payments generated
by the recording of copyright music,
and occupies premises in Streatham
Hill (aptly called Elgar House), was
alerted to this transmission, and
asked the Imperial War Museum for
the music cue sheet of Triumph of
the Will (the music had been specially
written for the film by Herbert Windt).
The Museum pointed out the provisions
of the Enemy Property Act 1953. This
was followed up by a request from
the Performing Right Society, who
acknowledged that the film copyright
had been extinguished but claimed
that the soundtrack copyright had
not. (At certain periods UK copyright
law has treated the film and the soundtrack
as a single work, at other times as
two separate works). The Museum replied
that as the music had been specially
written for the film, the Act extinguished
its copyright too, insofar as the
music was used in the UK as part of
the Imperial War Museum's copy of
the film. Actually the Museum didn't
have a music cue sheet, anyway.
Meanwhile, the diplomatic exchange
continued at diplomatic speed. In
1975 the British government confirmed
its view that the UK copyright in
German films taken over by the British
government at the end of the Second
World War had indeed been extinguished
by the 1953 Act, and the government's
view was conveyed by letter to the
Cultural Counsellor of the Embassy
of the German Federal Republic (neither
the British government nor the Imperial
War Museum claims UK copyright --
just that UK copyright was extinguished)
and there the matter rested.
On January 1, 1996 a Statutory Instrument
brought the Duration of Copyright
and Rights in Performances Regulations
1995 into force. These regulations
gave effect to a European Union Council
Directive that, amongst other things,
harmonised the term of copyright protection
for films throughout the European
Union at 70 years after the death
of the last person of a list of collaborators
involved in its making (such as the
director and the writer of specially
commissioned music). In the UK the
period had (since 1957) been 50 years
after the creator's death. (Just to
complicate matters, these regulations
do not affect the term of copyright
protection given to German newsreels
in Germany --they still don't have
enough original creative content to
qualify for full copyright protection
there).
One of the effects of these regulations
--thanks to a case in Germany about
records by Cliff Richard and Phil
Collins -- was to revive certain copyrights
that had expired already. Do these
regulations revive UK copyright in
any Nazi films which had been affected
by the 1953 Act? No, because the regulations
revive copyrights that had "expired"
-- i.e. copyrights that had "run
out" naturally but now qualified
for the remaining part of the 20 extra
years.
The Nazi copyrights were "extinguished"
by the 1953 Act, and just as the repeal
of much of the 1953 Act did not bring
them back to life again, nor did these
regulations. A new law specifically
reinstating them would need to be
enacted to achieve this. In the UK
they remain extinguished.
Before we finish, we should quickly
visit the USA. At the time these films
were made, the US only gave copyright
protection to works formally registered
at the Copyright Office of the Library
of Congress in Washington before they
were first published in the USA (this
is no longer the case).
Although there had been a copyright
treaty between Germany and the USA
since the nineteenth century, this
did not excuse German nationals from
registering their works in the USA
to get copyright protection there.
During World War II, the USA had its
equivalent to the Enemy Property Act
1953, and German copyrights that were
forfeited were not extinguished as
in the UK, but vested in the Alien
Property Custodian. However for other
copyrights in 1967, the US government
made a provision allowing German citizens
extra time to comply with the Copyright
Office's registration formalities,
which of course they were unable to
do when the works were first published
in the USA because of wartime and
post-war circumstances.
Berne Convention
In addition, because the USA was
at the time not a member of the Berne
Convention, but of another international
copyright treaty -- the Universal
Copyright Convention -- the German
works had to bear the symbol ©
or the word "Copyright"
or COPR, the name of the copyright
owner and the date of first publication,
to enable the German copyright owner
to enforce his copyright in the USA.
Some of these films were registered
at the Copyright Office of the Library
of Congress, but with recent first
US publication dates (e.g. Victory
in the West's registered first US
publication date is 1985). The registered
owner is not usually the original
German copyright owner, and it is
not always clear from the documents
whether the registered owner made
the registration with the original
owner's consent (perhaps as agent
or licensee) or without it (perhaps
the original film may not be protected
by copyright in the USA).
For example, the Copyright Office
has no copyright registration of original
Deutsche Wochenschauen. However, a
series of 10 videocassettes titled
Through Enemy Eyes, each containing
copies of two or three Deutsche Wochenschauen
are registered. These compilations
are therefore protected by copyright
in the USA, but this does not affect
the US copyright status of the original
German film copies of which Through
Enemy Eyes contains. A compilation
like this can be protected by copyright
in the USA, but not in Germany, where
a greater creative contribution is
required. The recent "database
right" throughout the European
Union could now protect such compilations
in Germany.
Things have changed, though. New
laws in the USA have brought many
foreign copyrights back to life --
they even have "Lazarus Lists"
-- and may have brought some of the
original German films back into copyright
in the USA, and given the resurrected
rights in them to the German right
holders. (One of the conditions for
these "resurrections" is
that the works still have copyright
protection in their home countries).
What of the future? Interest in this
remarkable genre of films does not
seem to be diminishing. On the contrary,
the latest genocides in central Africa
and Eastern Europe make the serious
study of racial intolerance more pressing,
and apparently the popular interest
in these macabre and terrible events
of half a century ago and their vivid
reflection in the films of the day
does not diminish. All of which must
surely be good for a penny or two,
so maybe Transit-Film GmbH will finally
pursue a copyright claim through the
Courts to its conclusion -- perhaps
in a US Court, who knows. The result
would be interesting. But (despite
the best efforts of the Internet)
copyright law still creaks along country
by country, so a judgment about the
rights in one country might not be
conclusive in another.
Read: NAZI FIMS (Part One)
Hubert Best, International Media
Lawyer
--------------------------------------------------------------------------------
Email: hubert.best@twobirds.com
|
