Booty in the eye of the beholder

10 February 2005

Hubert Best

Part 2 of a 2 part series. Click here to read part 1.

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 Convention, 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.

Also published on the Focal International website.