Depositing Films with Archives: A Guide to the Legal
Issues
Supporting Document D:
Public-Private Cooperation Task Force
(published August 1994)
If you have a question concerning issues raised in this document, please contact
document co-author Eric Schwartz at ejs@msk.com
Why deposit your film(s) with an archive?
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.
There are as many types of archival deposit agreements as there are types
of donors. Deposit agreements are customized documents, reflecting the
commercial status of the donor, her motivations for deposit, her on-going
interest in the materials, and archival considerations. We have, therefore,
laid out the possibilities in the form of a checklist of issues from
which archives and potential donors can chose the applicable sections.
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:
- 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);
- the nature of the deposit (including whether it is a loan, a gift,
or some variant of those two);
- the role of the archive regarding those materials (such as conservation,
duplication, restoration, and security); and
- 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).
It is our hope that the checklist will clear away some of the mist that
often surrounds archival deposits and encourage an informed dialogue
between donors and archives. In doing so, we also hope that it will ease
film owners' hesitations about entrusting films to archives.
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.
- 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.
- 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)
- 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. 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. 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. 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
The core of every archival deposit agreement are the provisions dealing
with access to and use of the materials. As discussed above in section
I, the deposit agreement should carefully describe the permissible uses
of the deposit materials by the archive and its staff and the types of
distributions and public screenings that the archive is authorized to
undertake.
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
All deposit discussions should address the role of the archive, including
storage, preservation, restoration, and cataloging of the deposit materials,
as well as insurance and indemnification arrangements, security arrangements,
prohibitions on transfer o f the deposit materials, and de-accession
procedures. As discussed below, these roles will vary greatly depending
on the needs of the donor, the capabilities of the archive, and the availability
of funding and administrative support. Absent a clear understanding on
these issues, it should not be assumed by the donor that the archive
will undertake any of these roles.
- 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
Where control over publicity regarding the deposit or the deposit materials,
or regarding the confidentiality of proprietary information, is a concern,
the limitations should be expressly set forth in the agreement to avoid
later misunderstandings.
- 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
No legal document would, of course, be complete without legal boilerplate.
While these provisions are not as key as the preceding points, they should
nevertheless not be over looked.
- 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
Other intellectual property and allied rights
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. 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. 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. 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. 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. 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
(1)Sample language: "Donor hereby
conveys to the Archive the physical property set forth in Exhibit "A" of
this Agreement which shall, upon receipt of such items by the Archive,
become the sole and exclusive property of the Archive." Return to text
(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."
Return to text
(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:
- The termination (by act of law, by decision of a court of law,
or by agreement of the parties) of this Agreement;
- The finding by any court of law that any provision of this
Agreement is void or unenforceable as drafted;
- The dissolution of the Archive;
- 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]
- The failure by the Archive to maintain agreed-upon security
measures; or
- A breach by the Archive of any provision of this Agreement.
Upon the occurrence of any of the above events, the Archive agrees
that it will promptly return all of the Deposit Copies to the Donor." Return
to text
(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:
- Access to the Deposit Materials will be made available only
to qualified scholars for private study at the Archive.
- 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.
- No part of the Deposit Materials will be removed from the premises
of the Archive without the prior written permission of the Donor.
- 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."
Return to text
(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."
Return to text
(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:
- Only for emergency situations (e.g., destruction of previously
manufactured materials), and then only to prepare new master
Materials of the complete Film.
- 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.
- 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."
Return to text
(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
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