3D versions of 2D films: Who has the right to distribute?
The impact of new post-production techniques on the original parties: who has the right to distribute 3D versions of films already released?
With constantly evolving and developing technology in the film industry, it has long been the position that, along with brand new releases, film-makers look to enhance and further exploit the vast library of films already released.
This revitalises films and can ensure classics remain current and benefit from the latest techniques. This technological re-versioning has manifested itself in colourisations of early black and white films in the 1970s, in enhancements in the quality of pictures and widescreen editing, the creation of director's cuts, and now in the current trend for creating 3D versions of films originally shot in 2D. As well as the benefits for the films and fans, this clearly is also of benefit to the parties involved in the production of films, enabling them to maximise the commercial possibility of film-making.
The use of post-production techniques to create new versions of existing films gives rise to legal issues to be considered. For example, in a situation where a distributor owns the exclusive right to distribute the 2D version of a film, would that distributor also have the right to distribute any later 3D version of the same film? And, if not, who would?
The copyright position of the later version
Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film. A new version of a film would need to be created by more than mere copying to be entitled to copyright protection as a separate copyright work. However as there is no requirement that a film be 'original' to qualify for copyright protection, even small changes are likely to be sufficient to create a new copyright work. In the context of alterations to existing films it is generally thought that if new images are produced by a technical or artistic process then the altered film will acquire separate copyright protection.
It is likely therefore that a new 3D version of an originally 2D film will be a separate copyright work, in the same way that the colourisation of an existing black and white film is treated as a new work irrespective of whether it is coloured up by hand or computer process.
These legal principles would also apply in the future to new formats and techniques yet to be discovered.
Examples of re-releases
A cult classic which has been re-released in several edits is Blade Runner. The director, Ridley Scott, released a Director's Cut in 1992 and eventually prepared his own definitive version, The Final Cut in 2007. The release of The Final Cut was delayed, and the speculation was that this was due to the producers not being prepared to license the rights to the original film. The main distributor for the original version, and eventually The Final Cut, was Warner Bros. Pictures. However it would seem Warner Bros. needed to renegotiate the rights in relation to The Final Cut because it was classed as a new and separate film. They were not automatically entitled to distribute The Final Cut by virtue of their rights in relation to the original version of the film.
In Turner v Huston, Turner Entertainment registered a colourisation of the 1950 film Asphalt Jungle for copyright in France. Although the case was concerned with moral rights, and whether this modification was compatible with the original artistic concept, the underlying fact is that the colourised version was treated as a new work capable of attracting copyright.
The contractual position for the later version
In the event that a 3D film did not qualify for separate copyright protection then the natural conclusion is that the contracts and agreements relating to the original film would still stand – the distributor's rights to distribute would still apply.
However if, as is more likely, a 3D version is treated as a separate copyright work then unless expressly stipulated in the original distribution agreement, the distributor's rights to distribute the original film would not entitle them to also have distribution rights to the 3D version.
Rights of the exclusive licensee
Even if a 3D version is a new work of copyright, it would be derived from and an adaptation of the original. Creating a 3D version without the consent of the copyright owner of the original would be an infringement of the rights of the copyright owner and unlicensed exploitation could be prevented.
Whilst a distributor with an exclusive licence to distribute the original version has the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment, these rights are generally only exercisable against a third party and not against the copyright owner or any assignees or other licensees of the copyright owner. This means that a distributor could not prevent the copyright owner from exploiting the 3D version or its assignees or other licensees who would be able to avail themselves of the claim by way of the subsequent licence.
The position of an exclusive licensee in a copyright infringement claim is illustrated by the case of JHP v BBC Worldwide. JHP, the publisher and exclusive licensee of three books on the Daleks, was not successful in a copyright infringement claim against the BBC for publishing books containing some of the same material used in original books published by JHP. This was because the BBC had obtained the consent of the copyright owner (the estate of Terry Nation, the original creator of the Daleks).
Even though the distributor of the original version might struggle in a claim that the exploitation of a 3D version by an authorised third party infringes its rights, if its distribution agreement is well drafted and prohibits the licensor for entering into arrangements that might compete with the distributor's rights, it may well have recourse against its licensor for breach of contract.
Due to the many new techniques we have seen develop in the history of film, and the possibility of others arising, the desire to re-release a film to take advantage of re-versioning should be an occurrence which is anticipated when drafting the agreements for the original film. This would ensure that the intentions of the initial parties can be honoured.
If a distributor wants to ensure they have the rights to any later versions which are created, in any format, then clear provision should be made for this. This should be worded to include specific techniques as desired, but it would also be wise to cover any other as yet undiscovered future developments. The contract should also stipulate that the licensor will not grant any future conflicting licence in relation to any re-versions produced.
The terms of the original distribution agreement are key in assessing any options of redress available for the distributor of the original version in relation to a 3D re-versioning.
1. Copyright, Designs and Patents Act 1988 s.5B(4)
2. Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs Volume 1 (4th edn, LexisNexis 2011)
3. As above
4. 'A Cult Classic Restored, Again', Fred Kaplan, 30/09/2007 http://www.nytimes.com/2007/09/30/movies/30kapl.html?pagewanted=all&_r=0
5. Internet Movie Database http://www.imdb.com/title/tt0083658/companycredits
6. Turner Entertainment v Heirs to the Estate of John Huston, Court of Appeal of Versailles, Revue Internationale des droits d'auteur No. 164 April 1995 at p.389
7. Copyright, Designs and Patents Act 1988 s.101
8. Garnet, Davies et al, Copinger and Skone James on Copyright (16th edn, Sweet & Maxwell 2014)
9. Copyright, Designs and Patents Act 1988 s.102(3)
10.  F.S.R. 29