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Depositing Films with Archives: A Guide to the Legal Issues

Supporting Document D:
Public-Private Cooperation Task Force

Archives play a central role in preserving America's film heritage. Many filmmakers, from D.W. Griffith to Andy Warhol, are known today largely though works that came into the safekeeping of these institutions. Archives not only make films available for research, study, and appreciation, they also provide secure storage -- often in low-temperature, low-humidity environments designed expressly to protect film. For active filmmakers, archives often make special arrangements to allow continued access to the materials under conditions that insure their preservation.

A "deposit agreement" defines the relationship between a donor of film materials and the archive to whom the materials are entrusted (for the sake of clarity, the term "donor" is used throughout this agreement to refer to the party entrusting the film to the archive and term "deposit agreements" is used to refer to the agreement between the donor and the archive, regardless of whether the deposit is in the form of a loan or a gift). Sorting through the legal issues addressed in these agreements can be complicated, particularly for filmmakers and archives who do not have the help of legal counsel experienced in the issues raised by such arrangements. Some filmmakers, discouraged by these complexities, fail to take the necessary steps to protect their work, and as a result materials can be lost o r destroyed. In the public hearings accompanying the Librarian's Report to Congress, entitled Film Preservation 1993, archival and scientific experts emphasized that proper storage is as key to the preservation of film as is restoration of the film elements.

In 1994, the Librarian of Congress appointed a group of task forces to encourage the development of a National Film Preservation Plan, under the guidance of the National Film Preservation Board. One of those task forces, the Public-Private Cooperation Task Force, has developed the following checklist to explain the legal issues involved in archival deposit agreements, and to do so in accessible, nontechnical language.

Introduction to the Checklist

This checklist is a tool to help donors and archives negotiate mutually beneficial agreements. It is our hope that it will help ensure the preservation of films (especially the works of independent filmmakers) by encouraging deposits of films and related materials, while at the same time decreasing the likelihood of misunderstandings regarding the archives' role and capabilities. The checklist is intended to serve several different functions:

• to introduce the legal issues that exist between owners of film materials and the archives that collect and preserve films and related materials;
• to aid in the negotiation of deposit agreements; and
• to provide a reference source for parties which already have deposit agreements in place in order to ensure that those documents are comprehensive and accurately reflect the intentions of the parties.

We have demurred from presenting a so-called "model" agreement, finding that no single model can fit all situations. Furthermore, model agreements carry the dangerous implication that there is a "right" and "wrong" approach to the many issues listed on the following pages. The only "wrong" approach is one that fails to anticipate and clarify the key issues of donor- archive relationships.

The checklist is Endnoted with excerpts from actual deposit agreements, generously supplied by film archives and motion picture studios participating in the development of the National Film Preservation Plan. The Endnotes are intended to amplify the discussion with "real-life" illustrations and to suggest sample language. In all instances we have deleted the names of the parties from the excerpts. The checklist uses the term "archive" as shorthand for any public or non-profit repository -- library, museum, historical society, university collection -- committed to the preservation of film. Again, we emphasize that the best clause for each situation is the one that meets the specific needs of both parties.

Don't be put off by the length of the checklist!

Because this checklist is designed as much for non-lawyers as for lawyers, we have attempted to use as little technical legal language as possible. The checklist is lengthy because there are so many important issues that must be addressed in almost every deposit arrangement, not because these issues are particularly complicated.

A quick glance over the table of contents of the checklist on the next page should reveal that there are four basic elements that should be addressed in the deposit agreement:

1. the materials that are being deposited (not only a clear description of the physical materials, but a thorough discussion of what additional rights, if any, accompany those materials);
2. the nature of the deposit (including whether it is a loan, a gift, or some variant of those two);
3. the role of the archive regarding those materials (such as conservation, duplication, restoration, and security); and
4. the use of the deposit materials (including any restrictions on the use of those material by the archive, by patrons of the archive, and by the donor).

                       OUTLINE OF THE CHECKLIST

1.        Nature of the deposit arrangement
     a.        Type of transfer: gift, bequest, or 
     b.        Subject matter of the transfer
          i.        Physical materials
          ii.       Copyrights
               (1)       Exclusive rights of the copyright owner
               (2)       Types of copyright grants
               (3)       Termination of grants made by the 
                             copyright owner
               (4)       Copyrights in underlying material contained 
                             in the film
               (5)       "Fair use" and archival uses
          iii.      Other intellectual property and allied rights
          iv.       Agreement to supplement the deposit materials
     c.        Mechanics of the transfer
     d.        Duration of the deposit arrangement
          i.        Term of the deposit
          ii.       Term of restrictions on the use of the deposit materials
          iii.      Termination provisions
          
2.        Access to the deposit materials
     a.        Access to the materials by patrons of the archive
     b.        Access to the materials by the donor
     
3.        Role of the archive
     a.        Types of archival care
     b.        Cataloging
     c.        Insurance and indemnification
     d.        Security arrangements
     e.        Prohibition on transfer of the deposit materials
     f.        De-accession of deposit materials
     
4.        Publicity and confidentiality
     a.        Publicity regarding the deposit agreement and materials
     b.        Confidentiality
     
5.        Miscellaneous provisions
     a.        Representations and warranties
     b.        Address for notices
     c.        Requirement that amendments be in writing
     d.        Reservation of rights
     e.        Assignment
     f.        Choice of law

APPENDIX:  Discussion of moral rights, rights of publicity & privacy,
                   trademark law, and collective bargaining agreements
ENDNOTES

CHECKLIST FOR DEPOSIT AGREEMENTS

I. Nature of the deposit arrangement

Any review of an archival deposit agreement should begin with a consideration of the nature of the deposit arrangement between the donor (the party lending or donating the film materials) and the archive. Is the deposit in the nature of a gift or a loan? Exactly what physical property and which rights are changing hands? How long is the deposit for; and how long will restrictions (if any) imposed on the use of the materials last?

• A. Type of transfer: gift, bequest, or loan

  There are two types of transfer: a gift and a loan. The concerns addressed by each section of this checklist apply equally to both, since even an outright gift may be subject to restrictions and limitations.

  1. Gifts and bequests

     A gift may be made either in the form of an immediate transfer (Endnote 1) or as a bequest in a will which takes effect only upon the death of the donor. Archives prefer, in almost all situations, an outright gift to an extended loan.

  2. Loans

     Even where the deposit is in the form of a loan, (Endnote 2) the term of the loan may be open-ended and not limited to a set term of years (for a discus sion of the duration of deposit agreements, see section I.D). (It is, of course, also possible that a loan may at some point convert to an outright gift, such as upon the death of the donor. This later approach is generally taken where an individual donor wishes to retain certain rights to the material during her lifetime.)

• B. Subject matter of the transfer

  All motion pictures consist of two distinct sets of rights: the tangible rights to the physical property (i.e., the reels of film) and the intangible rights contained in that property (most importantly, the copyright). Particularly with commercial releases, these dual sets of rights are often owned by different parties. Even where a donor owns both sets of rights, she may wish to transfer to the archive only the physical property, but no rights in the copyright. Absent permission of the copyright owner, the archive's use of the material is limited to scholarly study and duplication for preservation purposes (see the discussion of "fair use" and archival use in section I.B.2.e. below). (Endnote 3)

  1. Physical materials

     The donor and the archive should discuss precisely which materials are to be deposited. Deposits may include prints, preprint materials, duplicating materials, background and production reports, shooting scripts, continuity scripts, publicity stills, etc. The agreement should set forth in detail exactly what materials are being deposited, listing not only the titles but also each element being deposited (i.e., prints, preprint materials, background and production reports, shooting scripts, continuity scripts, publicity stills, etc.) together with a description of the format (35mm, 16mm, black & white, color, etc.), number of reels (A/B reels), and running time. Where the list is long, it is frequently attached to the agreement as a schedule.

     The parties should agree on the status of the physical materials that are to be deposited with the archive. In most cases, the agreement will specify that the materials are being donated in an "as-is" or "best available copy" condition. If other arrangements are agreed upon, such as where the donor agrees that new prints will be created for deposit, the agreement may specify "newly-struck release prints from the best available original master materials."

     Archives frequently request preprint materials. When the donor does not have secure archival facilities, with proper temperature and humidity controls, in which to protect those elements, such deposit may well be in the best interest of all parties.

  2. 2. Copyrights

     If the donor is also the owner of the copyright in the deposit materials, the agreement should address which aspects, if any, of the copyright are being licensed or assigned to the archive.

     • (a) Exclusive rights of the copyright owner

       The copyright owner controls the following five exclusive rights (which, as discussed in the next subsection, can be licensed in whole or in part):

       • (1) The right of reproduction

         This is the right to make physical copies of the copyrighted material. (Endnote 4) Examples would include copies made from the original film to duplicate film (including reference prints), to videotape, or to other medium such as still photo graphs. Absent a grant of permission, the archive does not have the right to make any copies of the deposit materials, except as provided under the "fair use" provisions of the Copyright Act (discussed below in section I.B.2.e.).

       • (2) The right of distribution

         The copyright owner also controls the right to distribute physical copies of the work to other parties. (Endnote 5) The distribution right reserves to the copyright owner the right to control the dissemination, including the rental, of the work. Once the copy right owner sells a copy, however, the purchaser of that copy has the right to re-sell or lend it to others. For example, a legally made home video of a commercial motion picture may be resold or given away without notifying the studio which owns the copyright in the film. (Endnote 6)

         It should be noted, however, that the copyright owner can con tractually limit the authority of the archive to transfer the deposit materials to other parties, even where the copyright law gives the archive more flexibility. This is particularly true where the deposit agreement is in the form of a loan rather than a gift. (For a discussion on contractual limitations on transfers, see section III.E).

       • (3) The right of public performance

         The copyright owner also controls the right to perform the copy righted work in public. (Endnote 7) Absent permission, the archive cannot publicly screen the film (either on or off the premises of the archive), broadcast it on television or cable, or make it available in an on-line digital format without the express prior consent of the copyright owner.

         In-house viewing by the archive staff or individual members of the public for scholarly purposes (for example, on a Steenbeck) would generally not be a violation of the donor's copyright based on the "fair use" provisions of the Copyright Act (see section I.B.2.e below). The copyright law also provides a very limited exception for non-profit education institutions which permits the screening of a film in an academic classroom context even absent the permission of the copyright owner. (Endnote 8)

         While the copyright owner has the right to contractually limit the archive's ability to conduct screenings of the deposit materials, including restricting uses which might otherwise qualify as "fair use" or classroom educational, such an outright prohibition of this type would negate most of the value of the deposit. More limited restrictions, such as restrictions defining the nature of scholarly access, (Endnote 9) are not uncommon.

         Some agreements that do not convey an unrestricted right of public performance nevertheless grant the archive the right to conduct a limited number of public showings of the film, particularly on the archive's premises. (Endnote 10)

       • (4) The right of public display

         The right of public display does not apply to motion pictures themselves, but can apply to objects associated with motion pictures which an archive may wish to display.

         The right of public display reserves to the copyright owner the right to control the public display of copyrighted objects. This right applies to still photographs (both publicity stills and frame enlargements), costumes, set design sketches, props, or other artifacts. This right, like the right of public performance in the film itself, is retained by the copyright owner unless specifically licensed or transferred to the archive. (Endnote 11) As a result, the archive may need to obtain the copyright owner's permission to display such items.

         It should, of course, be kept in mind that the claim of "fair use", discussed below, applies to all of these exclusive rights.

       • (5) The right to prepare derivative works

         The fifth right of the copyright owner is the right to create new copyrightable works based on the original work. (Endnote 12) Absent permission, the archive would not have the right to create new versions of the film (for example, creating a "director's cut" by adding scenes removed during the original editing process), create a soundtrack album, or license sequels, remakes, stage productions, or novelizations.

     • (b) Types of copyright grants

       Because all aspects of a copyright are divisible, a copyright owner can assign any portion of it to other parties, including the archive. A limited grant can be defined many possible ways: by one or more of the five rights discussed above, by geographic area, by length of time, or by other factors. In addition, any grant of rights may be either exclusive or nonexclusive.

       Thus when donating physical copies of films, the copyright owner needs to consider which aspects, if any, of the copyright will be included with the loan or gift. There are three options:

       • (1) The copyright owner retains all rights to the copyright, and the deposit is limited to a transfer of the physical materials only. (Endnote 13)
       • (2) The copyright owner transfers to the archive a non- exclusive license. (Endnote 14) As previously noted, such a grant can be of any combination of rights and for any combination of territories or time periods. Where a non-exclusive license is granted, it is typically a grant by the copyright owner to the archive of permission to show the film either at the archive's premises (Endnote 15) or at public showings, (Endnote 16) and/or to reproduce copies for archival and other limited purposes (such as reference prints).
       • (3) The copyright owner transfers to the archive exclusive rights. Such a grant can again be of any combination of rights and for any combination of territories or time periods. Where an exclusive assignment is made, it is generally an assignment of the entire copyright, with the donor retaining no interest in the copyright and the archive assuming full ownership. The archive is then free to license the copyright to other parties.

       Without a copyright assignment, the archive is limited in how it may use the film during the term of copyright protection (which, for most films, will be 75 years). Reproduction, distribution, performance, public display, or the preparation of derivative works by the archive or by others, without the prior consent of the copyright owner, constitutes an act of copyright infringement (subject, of course, to the defense of "fair use" discussed below in section I.B.2.e).

     • (c) Termination of grants made by the copyright owner

       It should be kept in mind that, under U.S. copyright law, the author of a copyrighted work may cancel assignments or licenses of the copyright under certain circumstances.

       Any grant of rights made after January 1, 1978, by the author of a copyrighted work, other than a work-for-hire, (Endnote 17) can be terminated 35 years after the transfer. (Endnote 18) Similarly, a grant of rights made prior to that date is subject to termination during a five-year period commencing with the end of the 56th year of the copyright in the work. (Endnote 19)

       Since these termination rights do not apply to works-for-hire, they will not apply to most commercially produced films. However, where a motion picture is based on a literary work, such as a novel or short story, a termination of the grant of rights in such literary work could terminate the right to create new works.

       As a general rule, this termination right has relatively little impact on archival deposit agreements for two reasons. First, any such termination would affect only the grant of copyright, not the deposit of the physical material, and thus, even where the copyright grant is terminated, the deposit materials will remain with the archive. And second, any derivative works created prior to the termination may continue to be exploited notwithstanding the termination. In other words, if the grant of motion picture rights in a novel were terminated, the resulting motion picture could continue to be screened and broadcast, but no new sequels or remakes could be produced.

     • (d) Copyrights in underlying material contained in the film

       It should be kept in mind that a license or assignment of the copyright to a motion picture does not automatically result in a license or assignment of underlying copyrights contained in the film, such as music or the rights to the literary work on which the film was based. A donor can never grant greater rights than she herself has, and therefore even a grant of "all rights" may not convey the rights necessary for the exhibition or distribution of the picture if the donor did not actually have those rights to transfer.

       There are two ways in which this problem can arise: either the creator (generally the producer) of the film failed to acquire the necessary licenses for the underlying copyright material (extremely unlikely with studio and major independent productions, but more likely with student films, low-budget independent films, and avant-garde works); or the creator of the film once had the necessary rights but those rights expired or reverted back to the original grantor.

       The most common type of "reversion," called the Rear Window reversion after the Supreme Court case involving this classic film, occurs when the author of an underlying work published before December 31, 1977, dies during the first term of copyright (i.e., within 28 years from the date the work was first published or registered with the Copyright Office). The second term of copyright then belongs to the author's heirs, (Endnote 20) regardless of any licenses or assignments made by the author. In the Rear Window case, the Hitchcock film was based on a short story written by Cornell Woolrich. Woolrich assigned motion picture rights in the story to another party who in turn passed it on until ultimately Universal Pictures owned the motion picture rights to the story for both the first and second terms of the copyright. But Woolrich died during the first term and a suit was filed between Woolrich's heirs and Universal over the question of who owned the motion picture rights to the story for the second (renewal) term of the copyright. As a result of the Supreme Court's decision, all rights to the second term, including motion picture rights, reverted to Woolrich heirs. Thus, for example, if an archive had a copy of Rear Window in its collection and had received the right from Universal to screen it publicly on its premises, it would lose this limited right of exhibition. (Endnote 21) Reversion, however, does not affect "fair use" applications permitted under U.S. copyright law (discussed in the next section).

       Donors and archives should not, therefore, blindly assume that, be cause the donor owns the copyright to the film, she also has all necessary rights to the underlying copyrights.

     • (e) "Fair use" and archival uses

       "Fair use" is one of the most misunderstood areas of copyright law. Many users of copyrighted material like to believe that their use -- whatever it is -- is fair use.

       Section 107 of the Copyright Act sets forth the test for determining whether a given use qualifies, on a case-by-case basis, as "fair use." Before discussing this test, it should be kept in mind that "fair use" is a defense to a claim of copyright infringement; if the use in question does not infringe on one of the exclusive rights of the copyright owner (discussed above in section I.B.2.a), there is no infringement and no need to consider whether the use qualifies as a "fair use".

       Examples of "fair use" set forth in Section 107 include making copies of the protected work "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." In determining whether a given use of a copyrighted work satisfies the "fair use" test, the statute sets forth the following factors.

       • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; (Endnote 22)
       • (2) the nature of the copyrighted work;
       • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
       • (4) the effect of the use upon the potential market for or value of the copyrighted work.

       Archives and libraries have certain special privileges under Section 108 of the Copyright Act. They are permitted to do certain forms of copying which otherwise would be an infringement of the copyright owner's exclusive rights and which might not qualify as "fair use" according to the test described above.

       Section 108 gives archives and libraries the right to make a single copy of a copyrighted film "solely for the purpose of replacement of a copy that is damaged, deteriorating, lost, or stolen, if the library or archive has, after a reasonable effort determined that an unused replacement cannot be obtained at a fair price." This right to make what is, in effect, a safety back-up copy, applies only if the copy is made "without any purpose of direct or indirect commercial advantage" and only if the archive or library is either (1) open to the public or (2) accessible to researchers affiliated with the archive or library as well as other persons doing research in a specialized field. (Endnote 23)

       As a result of Section 108, absent a contractual prohibition in the deposit agreement, an archive may have the right to make a single "replacement" copy of the deposit materials for use in the event that the primary copy is damaged, deteriorated, lost, or stolen. (Endnote 24) The deposit agreement can, of course, reiterate, expand, or even restrict this statutory right.

       As previously noted, the archive is limited in its uses of a motion picture only so long as that motion picture is protected by copyright (usually 75 years). All of these restrictions and limitations end with the expiration of copyright protection unless restrictions imposed by the donor continue based on the terms of the deposit agreement.

  3. 3. Other intellectual property and allied rights

     Although copyright is by far the most important intangible right pertinent to archival deposit agreements, the transfer and use of materials can involve many other issues -- including moral rights, the right of publicity, privacy law, trademarks, and collective bargaining agreements with craftspeople, actors, writers, and directors. While these concerns do not generally have an impact on the terms of deposit agreements, the issues that they pose should be kept in mind by both parties. For a brief discussion of these issues, see the attached appendix.

  4. 4. Agreement to supplement the deposit materials

     Where the donor plans to supplement the initial deposit with additional films or other materials in the future, the deposit agreement may provide that such future installments will be governed by the same terms applicable to the original deposit. (Endnote 25)

• C. Mechanics of the transfer

  The agreement should explicitly state what materials are being deposited, listing not only the titles but also each element being deposited (i.e., prints, preprint picture and sound materials, background and production reports, shooting scripts, continuity scripts, publicity stills, etc.) together with a description, where appropriate, of the film format (35mm, 16mm, black & white, color, etc.), number of reels (A/B reels), and footage or running time. Where the list is long, it is frequently attached to the agreement as a schedule.

  Where no such inventory is attached to the deposit materials or accompanies their delivery, the archive may require an indemnification against claims of lost or non-delivered materials which may arise when the archive contends that it never received materials which the donor contends were included in the deposit.

  The parties should make certain that the materials are covered by adequate insurance while in transit from the donor to the archive, even where this is not an express requirement of the agreement. The donor should be aware that any damages that occur to or loss of the deposit materials before the deposit agreement is signed and the materials are received by the archive may not be covered by the archive's insurance.

  Recordation of copyright assignments. If the donor is assigning the copyright in the deposit material to the archive, the donor should also agree to assign any copyright registrations for such material and to provide the archive with whatever documentation is necessary to effectuate the transfer. (Endnote 26) Either the donor or the archive should then record the assignment with the U.S. Copyright Office. (Endnote 27) (No such recordation is necessary where the archive is being granted only a non-exclusive license.)

• D. Duration of the deposit arrangement

  The deposit agreement should address the duration of: (1) the deposit itself; (2) the restrictions governing the use of the deposit materials; as well as (3) the termination provisions which may cut short the duration of the deposit arrangement.

  • 1. Term of the deposit

    Where the deposit is a gift, the term of deposit is in perpetuity because title to the materials is permanently transferred to the archive. Where the deposit is in the form of a long-term loan, the donor may define the time span of the loan in many different ways: it may be at the discretion of the donor; (Endnote 28) it may be for a set period of time (for example, a fixed number of years); it may be open-ended, subject to termination only in the event of a certain specified events, (Endnote 29) or it may be a loan for a fixed time after which it converts to a permanent gift (for example, a loan during the life of the donor which converts to a gift to the archive upon her death).

  • 2. Term of restrictions on the use of the deposit materials

    The next section discusses restrictions that are frequently imposed by donors on the use of and access to materials deposited with film archives (section II). Some agreements limit these restrictions to the term of copyright in the deposit materials; other agreements contain restrictions which continue to apply even after the materials have entered the public domain. On the one hand, an archive may not wish to be burdened by contractual restrictions on public domain material; on the other hand donors may hesitate to donate public domain material (or material about to enter the public domain) absent some restrictions on the possible commercial use of the materials by the archive or the archive's patrons out of concern that the deposited materials could be used to compete with the donor's on-going commercial use of those materials.

    Neither approach is right for every situation. The best solution, as with all provisions discussed in this checklist, is for both parties to be aware of the issues and to negotiate the approach that best serves that specific concerns of the individual donor and archive.

    One specific note of caution: A motion picture produced in the United States will enter the public domain in certain countries long before, and, in others, long after it enters the public domain in the United States. Therefore, where the restrictions are limited to the term of copyright the agreement should specify exactly which term of copyright is intended to control. (Endnote 30)

  • 3. Termination provisions

    Deposit agreements for a loan of film materials frequently provide that the donor has the right to terminate the deposit agreement and retrieve the deposit materials if the archive violates the terms of the agreement. This termination right may be limited by a "cure" right, which permits the archive to correct the violation before the deposit is terminated. (Endnote 31)

    If the agreement contains an unrestricted termination right, where the loan may be terminated at any time for any reason, the right is generally mutual: either the donor or the archive may terminate.

II. Access to the deposit materials

In addition, these provisions should spell out in clear detail the conditions under which both patrons of the archive and the donor herself may access and use the deposit materials.

• A. Access to the materials by patrons of the archive

  Perhaps the most important part of any deposit agreement are the provisions setting forth the restrictions on the use of the materials by patrons of the archive. (Endnote 32)

  The agreement should specify who has access to the materials (e.g., the general public, public school systems, researchers or scholars engaged in serious research, etc.), and whether the use of the deposit materials is limited to the archive premises. (Endnote 33)

  The deposit agreement may also require the archive to take steps reasonably necessary to protect the donor's copyright interests in the deposit materials.

• B. Access to the materials by the donor

  As a general rule, archives prefer to minimize loans of deposit materials to the donor because the risk of damage when outside of archival custody defeats the original preservation intent of the deposit arrangement. (Endnote 34)

  However, where the donor is depositing her only copy of the deposit materials -- either as a loan or a gift, it may be important to the donor to retain the right of access to the deposit materials. This right of access must, however, be balanced against the archive's goal of preserving the materials for future generations, to minimize the archive's administrative costs for retrieval and copying of the material, and to protect against over-copying which can harm the physical property. One compromise is to permit the donor to request that the archive prepare copies of the deposit materials, at a mutually approved lab and at the donor's own expense. (Endnote 35)

III. Role of the archive

• A. Types of archival care

  The archive may assume the obligation to store deposit materials and endeavor to conserve them. Duplication onto newer film stock or full restoration (the effort to compensate for past decay and return the work to its former state), however, requires considerable financial investment. Depositing parties should not assume that the archive will be able to fund storage, duplication, or restoration projects without outside financial and administrative assistance.

  • 1. Storage

    Deposit agreements are frequently site-specific. In other words, the donor and the archive agree in advance where the deposit materials will be stored.

    With a major institutional archive, it is sufficient to state that the deposit materials will be stored at the usual storage facility(ies) of the archive. If the agreement restricts the storage location of the deposit materials, the agree ment should allow the archive to move the materials to another location at a later date, if deemed necessary by the archive, after written notice to the donor giving the donor the opportunity to raise questions about the proposed move and voice any objections. (Endnote 36)

    The issues of the costs of storage, whether the archive or the donor will pay (or share the costs), and how to pay for and accommodate handling and shipping of the deposit materials should also be addressed in the agreement.

  • 2. Conservation

    The archive may agree to endeavor to conserve and safeguard the quality and condition of the deposit materials. This is generally only an undertaking to stabilize and protect the materials, and should be distinguished from the duplication or restoration of deposit materials (as discussed below).

    Any such provision should, however, contain an express acknowledgment of the fact that all film materials deteriorate over time. Where the deposit agree ment involves unstable materials, particularly nitrate film stock, it may contain an acknowledgement of the volatile nature of the deposit materials and provide the archive with the right to destroy unsafe materials where necessary. (Endnote 37)

    It is extremely important for potential donors to be aware that film materials may already be in a state of deterioration at the time of deposit in an archive, and it may not be possible for the archive to stabilize such materials. For example, materials may have been treated or repaired in such a way that deterioration, such as vinegar syndrome, increases. In addition, existing damage and deterioration, which may not be detected at the time of deposit, may exist. Donors should, therefore, understand that, regardless of technical capabilities and funding sources, a commitment by an archive to conserve and safeguard the deposit materials is never an undertaking to guard against pre- existing or normally occurring damage and deterioration to those materials.

  • 3. Duplication and restoration

    Occasionally, where special funding is available, an archive will agree to go beyond merely stabilizing the deposit materials and will endeavor to copy and repair those materials. (Endnote 38) For example, an archive might agree to undertake preservation work including the expensive transfer of nitrate materials to safety film or the even more expensive restoration work which would add film materials to restore a film to its original release condition or to repair color fading. Even where the deposit materials are only on loan, archives require that materials which the archive creates shall remain the sole property of the archive (but subject to any contractual access restrictions imposed on the original deposit materials).

    In light of the substantial expense of such efforts, coupled with the limited financial resources of most archives, this type of commitment can generally only be undertaken by an archive where supplemental external financial support is available.

    If the archive assumes an obligation to duplicate or restore the deposit materials, the agreement may contain an acknowledgement that, where the materials are in an unstable condition (and thus most in need in duplication and restoration), it is possible that the original materials will be damaged or destroyed in the process. (Endnote 39)

• B. Cataloging

  The agreement may provide that the archive will catalog the materials in accordance with its standard practices and procedures. This provision is more for the benefit of the donor than the archive: an archive does not need permission to catalog its collection.

• C. Insurance and indemnification

  Although many deposit agreements do not delineate obligations of either party to insure the deposit materials, this does not mean that insurance is unimportant. If the donor has a continuing financial interest in the deposit materials (for example, the deposit may involve preprint material for a film that the donor is still distributing), the donor should consider insuring against possible financial harm which could result from loss, damage, or destruction of the deposit materials.

  It may also be advisable to purchase insurance coverage for times during which the deposit materials are at the greatest risk of loss or damage: while in transit from the donor to the archive or from the archive to a laboratory. Even where the materials may be covered by the archive's insurance, the donor may wish to purchase additional coverage if the donor desires more than replacement-value coverage.

  While insurance provisions are rare, indemnification provisions are not. These provisions frequently provide for cross-indemnifications in the result of claims or liability arising from breaches of the agreement. (Endnote 40) It should be kept in mind, however, that certain archives are financially unable to assume indemnification obligations, and archives of the federal government are prohibited by law from assuming such obligations.

  Since archives are generally not in a financial position to assume liability for the loss or destruction of deposit materials, the agreement may limit liability to instances of negligence or willful misconduct on the part of the archive, and exclude any claims for damages resulting from losses of artistic or historical value in excess of the replace ment cost of the materials. (Endnote 41)

• D. Security arrangements

  Piracy and unauthorized duplication of motion pictures, particularly in video cassette format, is a constant concern of copyright owners. When the donor has reservations about the archive's security, the donor should discuss her security concerns with the archive prior to the deposit and satisfy herself that the necessary protections are in place. Where security issues are addressed in the deposit agreement, it is usually phrased as a general undertaking on the part of the archive, as opposed to a laundry list of requirements. (Endnote 42)

• E. Prohibition on transfer of the deposit materials to other parties

  The decision of a donor to deposit her materials with an archive is frequently based on the nature (i.e., non-commercial and scholarly) and reputation of the specific archive, including its conservation and/or preservation facilities, its prominence among film scholars, etc. The donor may, therefore, specify that the archive's rights under the agreement are non-assignable and the deposit materials may not be transferred to any other party (including another archive) absent the her permission. (Endnote 43)

• F. De-accession of deposit materials

  Since all archives are faced both with growing financial and storage constraints, deposit agreements frequently contain clauses permitting the archive to de-accession material. (The de-accession provisions differ from the termination provisions, discussed in section I.D.3, because they do not involve a breach situation or the termination of the agreement.)

  There should be nothing objectionable about these provisions, provided that there is a mechanism for notifying the donor of the planned de-accession and giving her the right to recover the deposit materials or specify a new recipient of those materials. (Endnote 44)

IV. Publicity and confidentiality

• A. Publicity regarding the deposit agreement and materials

  Particularly when the donor is still distributing copies of the deposit materials to the public, the donor may wish to control publicity regarding the deposit agreement or the deposit materials. Similarly the archive may wish to have a voice in how its affiliation with the deposit materials is publicized. These issues should be discussed prior to the deposit and then expressed in mutually acceptable language. (Endnote 45)

• B. Confidentiality

  Although confidentiality is generally not a concern in deposit agreements, some agreements may require both parties to keep the terms and conditions of the agree ment confidential, as well as any proprietary information regarding the parties' business or operations. (Endnote 46)

V. Miscellaneous provisions

• A. Representations and warranties

  Archives occasionally ask the donor to represent and warrant that she has the right to enter into the agreement. Where these provisions are included, they are usually reciprocal between the donor and the archive. (Endnote 47)

  Where the donor does not own the copyright to the deposit materials (such as a collector of classic films), special attention should be made that no representations are made of ownership or control of copyrights by the donors.

  Where an agreement contains representations and warranties, it will frequently include an indemnification/hold-harmless undertaking in the event that those representations or warranties are breached. Any such clause should be reciprocal between the donor and the archive. (Endnote 48)

• B. Address for notices

  As obvious as this seems, it should not be overlooked. Notices cannot be given and consents cannot be sought if addresses are unavailable.

  Less obvious, but equally important, is the responsibility of the donor to keep the archive apprised of any changes in her address subsequent to the signing of the agreement.

• C. Requirement that amendments be in writing

  It is generally a good idea to include a statement, occasionally referred to as an "integration clause," that the signed document constitutes the full agreement between the parties, and that it can be modified only by a subsequent written agreement signed by the parties.

  This not only protects both parties against any latent claims of oral commitments or changes, but also helps focus the parties on the fact that the only binding obligations are those set forth in the agreement, and not those discussed but never documented.

• D. Reservation of rights

  Particularly in cases where none of the copyright is assigned to the archive, it is generally prudent to include a clause reserving for the donor all rights not expressly stated in the agreement. Given the speed at which new technology is evolving, this type of clause reserves to the donor any exploitation possibilities for the film that did not exist at the time the parties entered into the deposit agreement. (Endnote 49)

• E. Assignment

  Deposit agreements frequently provide that the donor may freely assign any of her rights, but the archive may not make any assignment of its rights absent the donor's consent. (Endnote 50)

• F. Choice of law

  Where the donor and the archive are located in different states (and especially where they are located in different countries), the agreement should indicate by a "choice of law clause" which state's law will govern the agreement in the event of a dispute.

  ---

  Drafted by Scott Martin (Paramount Pictures Corporation) and Eric Schwartz (U.S. Copyright Office) in collaboration with the other members of the Public-Private Cooperation Task Force: Mary Lea Bandy (Museum of Modern Art), Raffaele Donato (The Film Foundation), Douglas Gomery (University of Maryland), William Humphrey (Sony Pictures Entertainment), Brian O'Doherty (National Endowment for the Arts), and Edward Richmond (UCLA Film and Television Archive).

APPENDIX

The transfer and use of film materials can involve intellectual property issues other than just copyright. These issues include moral rights, the right of publicity, privacy law, trademarks, and collective bargaining agreements with craftspeople, actors, writers, and directors. While these concerns do not generally have an impact on the terms of deposit agreements, the issues that they pose should be kept in mind by both parties.

1. 1. Moral rights laws

   Moral rights are inherent rights of artists, authors, or other creators of copyrightable works that remain with the creator even if she no longer owns the work or the copyright to the work. (Endnote 51) The U.S. has generally not followed other countries in granting statutory moral rights protection. With the Visual Artist Rights Act of 1990, however, U.S. federal law for the first time granted the creator of artworks a statutory right of paternity (the right to claim or disclaim authorship of a particular work), and right of integrity (the author's right to object to modification of her work). (Endnote 52) The statute excludes all works-for-hire, motion pictures, and still photographs (other than those "produced for exhibition purposes"). Therefore, moral rights are not likely to be an issue in film deposit agreements in the U.S. (Endnote 53).

2. 2. Right of publicity laws

   Most states now have either a statutory or case law right of publicity which prohibits, to varying degrees, the unauthorized commercial exploitation of a person's name, likeness, or voice. In virtually all cases, these laws either do not apply to motion pictures or are waived by the fact that the performer's appeared in the film with the implicit knowledge that the resulting film would be shown to the public.

   The right of publicity might, however, have an impact on archival activities involving sale of merchandise based on the deposit materials. For example, the sale of frame enlargements of a performer, absent the consent of the performer, might give rise to a right of publicity claim. Licensing a still from a picture (or a publicity still) for use in a commercial advertisement is even more likely to give rise to such a claim.

3. 3. Privacy laws

   Claims under state law for invasion of privacy are extremely unlikely against commer cial motion pictures (either studio-produced or independent). In such films, the actors were aware that their filmed performances would be publicly shown. However, for some home movies, actuality footage (including documentaries), and avant-garde works, the individuals appearing on-screen may not have signed employment or consent forms and may never have expected the footage to be shown in public.

   If an archive intends to publicly exhibit such material, it should consider requesting releases from the on-screen individuals if the donor can obtain such releases.

   Perhaps the best known use of privacy laws to block the exhibition of a film involved the 1966 film by Frederick Wiseman entitled Titicut Follies. The documentary exposed the squalid conditions of the Bridgewater State Hospital for the Criminally Insane, and contained extensive footage of patients from whom no consents had been obtained. The governor of Massachusetts, embarrassed by the publicity over the conditions at the hospital, sought an injunction against the showing of the film on the grounds that it violated the right of privacy of an inmate shown naked in his cell. The trial judge agreed with the privacy argument and banned the film. The Supreme Court twice declined to hear an appeal of the case. It was not until twenty-one years later, in 1987, after most of the patients in the film had died and a new prison had been built to replace the original 1850 building, that a court reversed the original ruling and permitted the film to be exhibited. (The film finally aired on PBS in 1993.)

4. 4. Trademark laws

   Issues regarding trademark law generally do not occur in connection with typical archival film deposits or archival exhibition activities. Trademark claims may, how ever, be triggered if the archive engages in licensing or merchandising efforts related to the film (such as offering fund-raising tee shirts featuring materials from a film).

   Although unlikely, trademark claims of "false attribution" or "false light" may also arise from restoration efforts which dramatically alter the original appearance of a film.

5. 5. Collective bargaining agreements with talent

   Most studio-produced and many independently produced motion pictures are subject to the terms of collective bargaining agreements with the major industry guilds, including the Screen Actors Guild (SAG), the Writers Guild of America (WGA), and the Directors Guild of America (DGA).

   As a general rule, no re-use or residual payments will be triggered by an archive making a film available to researchers or exhibiting the film to its visitors.

   Any "new use" of the film material may, however, trigger obligations -- including editing portions of various films together (in the format of the film That's Entertainment!). Under certain circumstances, the publishing of script material in book form can trigger WGA obligations to the original screenwriter(s).

   Therefore, if any derivative uses are contemplated for the deposit materials, either by the donor or by the archive, the relevant Guild agreements should be consulted.

ENDNOTES

(2)Sample language: "Donor hereby agrees to lend to the Archive the physical property set forth in Exhibit "A" of this Agreement, which shall, at all times, remain the sole and exclusive property of the Donor." Return to text

(3) For a discussion of the types of copyright grants which a copyright owner might make, see section I.B.2.b, at page 56. Return to Text

(4)Section 106(1) of the Copyright Act grants the copyright owner the exclusive right "to reproduce the copyrighted work in copies." Return to text

(5)Section 106(3) of the Copyright Act grants the copyright owner the exclusive right "to distribute copies. . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."Return to text

(6)This is known as the "first sale doctrine"; it provides that the owner of a legally made copy of a copyrighted work may dispose of that copy without the permission of the copyright owner. (Section 109 of the Copyright Act.) This right is limited, however, to re-sale of the single copy. It does not convey any right to create additional copies. Return to text

(7)Section 106(4) of the Copyright Act grants the copyright owner the exclusive right "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly." To perform a work publicly is defined in Section 101 of the Copyright Act as performing or displaying a work at a place open to the public or at any place where a substantial number of persons is gathered as well as the transmission or communication of a performance or the display of a work. Return to text

(8)Section 110(1) of the Copyright Act provides that the following is not an infringement of copyright:

• "[the] performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made."

(9)Sample language: "The Deposit Materials may be used only for private study on the Archive's premises by researchers and scholars engaged in serous research under the Archive's usual and special regulations governing the accreditation of such scholars." Return to text

(10)For a discussion of sample language permitting a limited number of screenings of a film, see endnotes 15 and 16. Return to text

(11) Section 106(5) of the Copyright Act grants the copyright owner the exclusive right "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly." Return to text

(12)Section 106(2) of the Copyright Act grants the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." Return to text

(13)Sample language: "This is a gift/loan of only the physical property constituting the Deposit Materials, and the Donor reserves all right, title, and interest it may have in and to all of the intellectual property constituting the Deposit Materials, including, but not limited to, the right of reproduction, publication, exhibition, television broadcasting or transmission (or reproduction and transmission by any other means now existing or by future improvements and devices which are now or may hereafter be used in connection with the production, transmission or exhibition of such materials) or any other intangible rights to which the Donor is entitled throughout the world under copyright law, trademark law, common law, or other laws now existing or which may exist or be passed in the future." Alternative sample language: "The [donation/loan] of the Deposit Materials is limited solely to the physical materials listed on the schedule attached to this Agreement. Donor reserves all right, title, and interests it may have in and to the intellectual property which constitutes or is embodied within the Deposit Materials, including, but not limited to, the right of reproduction, publication, exhibition, television broadcasting or transmission (or reproduction and transmission by any other means now existing or by further improvements and devices which are now or may hereafter be used in connection with the production, transmission, or exhibition of such materials), videocassette, videodisc reproduction rights, or any other intangible right to which Donor is entitled throughout the world whether by license, under copyright, common law, or otherwise." Return to text

(14)A non-exclusive license is a license which does not limit the copyright owner's right to grant similar or identical licenses to other parties. Return to text

(15)Sample language: "The Archive may show the Film at its premises for educational and research purposes and as part of film series without admission charge." One archive has used the following language: "The Archive is granted the right to exhibit the Deposit Films up to two times per calendar year at special exhibitions at the Archive to audiences admitted to the Archive but not charged a separate fee for such film exhibition." Return to text

(16)Sample language: "The Archive may conduct a limited number of public showings of the Film, provided that the details of such arrangement are separately negotiated between the parties (including the number and location of the screenings and the royalty, if any, to be paid to the Donor)." Return to text

(17)For motion pictures, a work-for-hire is a work created either by an employee as a part of her employment relationship (for example, a press release regarding a film written by an employee of the marketing division of a studio) or as a contribution to a motion picture or other collective work where there is a written work-for-hire agreement. Virtually all commercially produced motion pictures, as well as all elements of the picture including the screenplay and the original music, are works-for-hire. This could, however, be a concern with the transfer of copyright in films by individual creators (such as with certain avant-garde films, documentaries, and home movies). Return to text

(18)This right is set forth in Section 203 of the Copyright Act. This termination right may be exercised by the author or by the author's statutorily defined heirs. Return to text

(19)This right is set forth in Section 304(c) of the Copyright Act. This termination right may also be exercised by the author or by the author's statutorily defined heirs. Since the term of copyright under the 1909 Copyright Act was, in most cases, 75 years, this termination right permitted the author (or his heirs) to recapture the last 19 years of the Copyright term (years 57 through 75 of the copyright). Return to text

(20)These heirs, known as the "statutory heirs," are defined by the Copyright Act. They are not necessarily the same as the author's heirs under her will, and the author cannot choose or disinherit these heirs for this purpose. Return to text

(21)In fact Universal subsequently entered into an agreement with the Woolrich heirs to acquire the rights necessary to continue distributing the picture during the second term of copyright. Return to text

(22)The legislative history of the Copyright Act indicates that "fair use" should permit "the non-sequential showing of an individual still or slide, or. . .the performance of a short excerpt from a motion picture for criticism or comment." See House Committee on the Judiciary, Copyright Law Revision, 94th Cong., 2d sess., 1976, H. Rept. 94-1476, 72-73. Return to text

(23)The legislative history of the Copyright Act indicates that Congress intended to specifically allow the archival copying of nitrate film: "A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film has been deliberately destroyed, those that remain are in immediate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of '"fair use."" [The reference to "1942" was either a transcription error or a misinformed belief as to the year ending the nitrate era.] See House Committee on the Judiciary, Copyright Law Revision, 94th Cong., 2d sess., 1976, H. Rept. 94-1476, 73. Return to text

(24)One form agreement requires the donor to provide replacement copies in the event of damage. Sample language: "If any of the Deposit Copies are, at any time, damaged, such damaged Deposit Copy will be replaced by the Donor, at the Archive's expense, upon presentation of the damaged Deposit Copy to the Donor." Return to text

(25)Sample language: "Such other and related materials as the Donor may, in its sole discretion, from time to time donate to the Archive shall be governed by the terms of this Deposit Agreement or by such written amendments as may hereinafter be agreed upon in writing by the by the Donor and the Archive." Return to text

(26)Sample language: "Donor [or Copyright Owner] agrees to assign to the Archive any and all copyright registrations for the Deposit Materials. Donor [or Copyright Owner] further agrees to duly acknowledge, execute, and deliver or procure the due execution and delivery to the Archive of any and all further assignments or other instruments that may be necessary or expedient to carry out and effectuate the purposes and intent of this Deposit Agreement, including but not limited to, any and all copyright assignments which have been or are to be executed in connection therewith. Donor [or Copyright Owner] hereby appoints the Archive, or its nominee, as Donor's [or Copyright Owner's] irrevocable attorney-in-fact, with the right, but not the obligation, to complete any such copyright assignment, fill in any blanks which may be left therein (including dates, Copyright Office information, etc.), execute the same in Donor's [or Copyright Owner's] name, or obtain execution thereof by others, as the case may be, and record the same in the United States Copyright Office, or elsewhere, as the Archive sees fit." Return to text;

(27)For free information about recording copyright assignments or about copyright registrations, write to the U.S. Copyright Office, LM 455, Library of Congress, Washington, D.C. 20559. To speak with a Copyright Information Specialist at the Copyright Office, call 202/707-3000. Return to text

(28)Sample language: "The Archive agrees to return the Deposit Materials to the Donor upon written demand of the Donor at the Donor's sole expense." Where the agreement takes this form, the archive may insist on a similar right to divest itself at any time of the deposit materials: "The Donor agrees to remove the Deposit Materials from the Archive's custody, at the Donor's sole expense, within sixty days of the Donor's receipt of the Archive's written request that the Deposit Materials be removed." Return to text

(29)Sample language: "The Archive shall be entitled to retain possession of the Deposit Materials commencing as of the date of receipt of the Deposit Materials from the Donor and continuing until the occurrence (if ever) of any of the following events:

1. The termination (by act of law, by decision of a court of law, or by agreement of the parties) of this Agreement;
2. The finding by any court of law that any provision of this Agreement is void or unenforceable as drafted;
3. The dissolution of the Archive;
4. The sale or transfer of control of the Archive; [this clause appeared in a deposit agreement with a privately owned archive; it would not apply to a public archive or to a museum-based or university-based archive]
5. The failure by the Archive to maintain agreed-upon security measures; or
6. A breach by the Archive of any provision of this Agreement.

(30)Sample language: "The restrictions imposed by the terms of this Agreement on the use of the Deposit Materials by the Archive and users of the Archive shall apply for so long as the Deposit Materials are entitled to claim protection for this [motion picture, script, etc.] under copyright law anywhere in the world." Return to text

(31)Sample language: "If any breach of this Agreement is deemed curable by the Donor, the Archive shall have reasonable time, but in no event more than thirty days after receipt of notice from the Donor, to cure such breach on a one time only basis. Any act of breach which is not subject to cure, or which is subject to cure but is not timely cured, will result in termination of this Agreement and the prompt return by the Archive, at the Archive's expense, of the Deposit Materials to the Donor." Return to text

(32)Sample language, covering various aspects of rights accorded to the archive and its patrons: "The Deposit Materials shall be subject to the following restrictions on use:

1. Access to the Deposit Materials will be made available only to qualified scholars for private study at the Archive.
2. No material contained in the Deposit Materials will be publicly performed, as defined by the Copyright Act, except as may be permitted by the "fair use" provisions of the Copyright Act, without the prior written permission of the Donor.
3. No part of the Deposit Materials will be removed from the premises of the Archive without the prior written permission of the Donor.
4. Except as expressly provided elsewhere in this Agreement, no part of the Deposit Materials may be copied or duplicated without the prior written permission of the Donor. This restriction includes, but is not limited to, transference to film, videotape, and laser disc formats."

(33)Sample language restricting access to scholars but not limiting use exclusively to the archive's premises: "Use of the Deposit Materials shall be limited to study by researchers or scholars engaged in serious research, which shall be conducted on the premises of the Archive [or on the premises of other archives in the United States which are members of the International Federation of Film Archives]. The Archive shall, at all times, retain possession and control over all of the Deposit Materials. [The Archive shall, however, have the right to reproduce 16mm or 35mm positive prints of the Deposit Materials, in accordance with the terms of this Agreement, and may loan such 16mm or 35mm positive prints to other archives in the United States which are members of the International Federation of Film Archives for purposes of serious scholarly research." Return to text

(34)Sample language: Where loan-back arrangements do exist for the deposit materials, they may be along the following lines: "Donor may borrow from the Archive the Deposit Materials donated by Donor for Donor's own use in accordance with the following conditions:

• Donor shall assume full responsibility for the Deposit Materials when in Donor's care, custody, and control;
• Donor shall pay all shipping, insurance, and handling costs for Deposit Materials it borrows from the Archive;
• Donor shall endeavor to return the Deposit Materials to the Archive within thirty days after receipt, or within a period mutually agreed upon in advance between the Donor and the Archive; and
• Donor agrees to return all borrowed Deposit Materials in the same condition as when borrowed, normal wear and tear excepted, and to replace, or pay for the costs of repair or restoration of any lost or irretrievably damaged Materials."

(35)Sample language: "If the Donor requests the Archive to manufacture material from print or preprint materials (collectively the "Materials") from the Deposit Materials, the Archive will do so according to the following procedures:

1. Only for emergency situations (e.g., destruction of previously manufactured materials), and then only to prepare new master Materials of the complete Film.
2. Manufacture will be done at a mutually-agreed-upon laboratory and pursuant to the Donor's order, after which the Archive's Materials will be returned directly to the Archive within a reasonable time.
3. The Donor shall be responsible for all lab, shipping, and related insurance costs (if any), plus the reasonable administrative expenses of the Archive in arranging for and handling the duplication."

(36)Sample language: "Donor and the Archive acknowledge that the Deposit Materials will be stored at the following location:______________. Prior to the transfer of the Deposit Materials to a vault or facility other than this facility, the Archive shall notify Donor in writing of such proposed change and shall give Donor the opportunity to inspect any such vault or facility prior to any move. Donor shall not unreasonably withhold its consent to the move to a facility of comparable quality, location, service, and security. If the Archive should build a facility of its own, shall facility shall be deemed pre-approved if the Archive warrants its suitability and comparability to this pre-approved facility." Return to text

(37)Sample language: "The Archive shall endeavor to maintain and preserve the Deposit Materials, and shall take reasonable steps necessary to safeguard the quality and condition of all Deposit Materials while such physical property is under the Archive's control or possession. The parties recognize, however, that, because of the natural deterioration of motion picture film materials, and in particular the highly unstable quality of parts of the Deposit Materials, the Deposit Materials will deteriorate over time and may deteriorate to an unsafe condition. In such cases, the Archive agrees to notify the Donor of such deterioration and of the Archive's intent to destroy the unsafe material(s). The Donor shall be given the opportunity to remove such unsafe material(s) from the Archive's collection, at the Donor's expense, prior to its scheduled destruction." Return to text

(38)Sample language: "The Archive shall use reasonable means to repair, restore, and/or preserve the Deposit Materials as may be necessary as determined by the Archive. The Archive agrees to notify the Donor immediately of any Deposit Materials (or components thereof) which the Archive does not intend to preserve and to give immediate access to Donor for preservation purposes." Return to text

(39)Sample language: "The parties recognize that, because of the highly unstable quality of parts of the Deposit Materials, some of the Deposit Materials may be damaged or destroyed in the conversion of such materials to preservation copies." Return to text

(40)Sample language: "The parties indemnify each other against any and all claims, damages, and liabilities, costs and expenses (including reasonable attorney's fees, which includes an allocation for in-house counsel fees) arising out of any breach by either party of any representations, warranties, or other obligations set forth in this Agreement." Some agreements limit this indemnity by providing that: "such indemnification shall be only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of the Archive, its officers, agents, or employees." Return to text

(41)Sample language: "The Archive shall not be responsible for any damage to, destruction of, or loss of the Deposit Materials or any portion thereof unless said damage, destruction, or loss occurs as a result of negligence or willful misconduct on the part of the Archive, its officers, agents, or employees." Such limitation on liability may further provide: "Should the Deposit Materials or any portion of those materials be damaged or destroyed as a result of negligence or willful misconduct by the Archive, its officers, agents, or employees, the Donor will be compensated up to the full replacement cost of the affected materials, excluding any consideration of artistic or historical value." Return to text

(42)Sample language: "The Archive acknowledges the Donor's concern about protecting the Deposit Materials against theft and unauthorized access, use or duplication, and agrees to take all reasonable precautions necessary to guard against the theft, loss, or unauthorized use of or access to the Deposit Materials." Return to text

(43)Sample language: "The Archive shall not have the right to assign any of its rights under this Agreement to any other party, nor may the Archive transfer possession of any of the Deposit Materials to any other party, absent express written permission of the Donor." See also the discussion at section V.E. Return to text

(44)Sample language: "Should the Deposit Materials, or any part thereof, be found by the Archive to include materials which the Archive deems inappropriate for permanent retention with the Archive's collection or excess to its needs, the Archive shall offer to return such materials to the Donor or forward them to such institution as the Donor may designate, at Donor's expense. If Donor does not respond to such offer within a reasonable time, then the Archive shall have the right to dispose of such materials in accordance with the Archive's standard procedures." Return to text

(45)Sample language: "Both parties agree that they will consult with each other before issuing any publicity with respect to this Deposit Agreement, and that neither party will issue any such publicity without the consent of the other. The Archive agrees to consult with Donor prior to issuing any publicity regarding the Deposit Materials, and the Donor agrees to consult with the Archive before making any public references to the inclusion of the Deposit Materials in the collection of the Archive." Where there are limits on the right of the archive to use elements of the Deposit Materials in connection with publicity: "The Archive further agrees that it will not use, or permit the use of, any materials from the Deposit Materials in connection with publicity regarding the Deposit Agreement or the Deposit Materials without the express written consent of Donor." Return to text

(46)Sample language: "Donor and the Archive agree at all times to maintain the confiden-tiality of the terms and conditions of this Agreement and of any proprietary information regarding Donor's or the Archive's business or operations which becomes known to either party as a result of this Agreement. Notwithstanding the foregoing, nothing herein shall prevent either party from announcing the donation of the Deposit Materials to trade papers or to the general press. [subject to the restrictions on publicity set forth elsewhere in this Agreement]." Return to text

(47)Sample language: "Donor represents and warrants that it has the right to enter into this Agreement, but makes no representations or warranties regarding the quantity, quality, or condition of the deposit materials. The Archive represents and warrants that it has the right to enter into this Agreement, to accept the donation of the deposit materials, and to preserve the deposit materials and to perform all obligations required of it pursuant to this Agreement." Return to text

(48)Sample language: "The parties indemnify and hold each other (and their subsidiaries and related companies) harmless against any and all claims, damages, and liabilities, costs and expenses (including reasonable attorney's fees, which includes an allocation for in-house counsel fees) arising out of any breach by either party of any representations, warranties, or other obligations set forth in this Agreement." Return to text

(49)Sample language: "All rights not specifically granted to the Archive are expressly reserved by Donor and Donor shall be free to exercise those rights in its sole discretion. The act of transferring possession of the Deposit Copies to the Archive shall not be deemed to constitute any implied grant of rights." Where the archive is not granted exhibition rights or is granted only non-exclusive exhibition rights: "Nothing contained in this Agreement shall in any way restrict, impair, diminish, or in any way alter Donor's right to exhibit and exploit the deposit material in all media, to produce, distribute and exploit motion pictures or television programs based on the deposit materials, or to otherwise exploit the deposit materials." Return to text

(50)Sample language: "Donor may freely assign any of its rights under this Agreement. However, no such assignment shall relieve Donor of its obligations hereunder [unless assumed in writing by Donor's successor]. [In the event of any assignment by Donor, Donor agrees to notify the Archive in writing of such assignment.] The Archive may not assign any of its rights or obligations under this Agreement without the prior written consent of Donor." Also see the discussion at section III.E. Return to text

(51)Moral rights include the following author's rights: to be known as the author of her work; to prevent others from being named as the author of her work; to prevent others from falsely attributing to her the authorship of work which she has not in fact written; to prevent others from making deforming changes in her work; to withdraw a published work from distribution if it no longer represents the view of the author; and to prevent others from using the work or the author's name in such a way as reflect on her professional standing. Return to text

(52)This Act was included in the Copyright Act as Section 106A ("Rights of certain authors to attribution and integrity"). Return to text

(53)Congress is currently considering laws which, if enacted, would require some form of disclosure labeling for films that have been altered -- such as where a film has been colorized, edited, or panned & scanned (which refers to the process of converting the rectangular motion picture image into a square television image). Such legislation could have an impact on film archives in cases where the deposit materials have already been altered or where the resulting print is altered -- for better or for worse -- as part of a restoration or preservation effort.

U.S. law is, of course, not the only consideration. If a motion picture is being distributed in a foreign territory which has moral rights law applicable to film, the law may well apply notwithstanding the country of origin of the film. France, for example, at the urging of the heirs of John Huston, blocked the distribution of a colorized version of The Asphalt Jungle under French moral rights law. Similarly, several internationally recognized compos ers of music, including Shostakovich, sued to block the use of public domain music they had written as background music in film which espoused political views which were inconsistent with those of the composers. Their efforts to block the use of the music in the U.S. failed (Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc. 67, 80 N.Y.S.2d 575 (1948)), but succeeded in France (Soc. Le Chant de Monde v. Soc. Fox Europe et Fox Americaine Twentieth Century, Judgment of Jan. 13, 1984, 1 Gax Pal. 191 (1954) D.A. 16, 80 (Cour d'Appel Paris)). Return to text