Judging a DVD By It’s Cover

In an earlier post (Why Do Some DVD’s Only Cost a Dollar?), we discussed how certain movies made prior to the early 60’s can now be copied freely without having to pay a royalty and without running the risk of being sued for copyright infringement.

With the advent of inexpensively reproduced DVD’s, a whole new industry has emerged:  distributors of low-cost vintage films.  Because these works are in the public domain, no one distributor has exclusive rights to them.  As a result, distributors may rely on creating distinctive packaging to distinguish their DVD of a particular film from their competitors’ DVD of the same film.

If the cover of a DVD includes still photographs from a motion picture in the public domain, doesn’t that mean the cover is public domain too?  Not necessarily.  If multiple elements of a work in the public domain are compiled in a sufficiently creative manner,  the compilation of photos, but not the photos themselves, may be considered a separate copyrightable work. It was under this legal concept that DVD distributor Alpha Video recently sued The Classic Theater(one of its competitors) for copyright infringement.

Alpha Video sells vintage DVD’s, among them a series of films featuring the fictional detective Mr. Wong.  Since these films are also reproduced by other distributors (among them The Classic Theater), Alpha Video created its own unique covers, using stills from the movies combined with original artwork, to differentiate its product from that of its competitors. Even though copyright exists from the moment the work is created, Alpha Video took the precaution of registering these covers with the United States Copyright Office.

Copyright registration affords the registrant certain additional rights, such as the right to file an infringement action in court and collect statutory damages and attorney’s fees from the infringer, as well as the presumption that the registrant is the actual owner of the work.  Since the filing fee for copyright registration is relatively inexpensive, it’s a good practice to seek this additional protection. In its lawsuit, Alpha Video has alleged that The Classic Theater committed copyright infringement by using the original artwork from seven of Alpha Video’s DVD covers on its own DVD releases, thereby commercially exploiting what Alpha Video claims is rightfully theirs.

In addition, Alpha Video has demanded that The Classic Theater immediately stop infringing on its works, pay damages to Alpha Video, and allow its infringing products to be impounded. Regardless of the outcome of this suit, it’s important to remember that just because the copyright in a creative work has expired, rearranging material in the public domain or combining it with new material can sometimes create a work that has a copyright life of its own.

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