Kurosawa and the Public Domain

 

This week I crossed another film off my to watch list, Akira Kurosawa's Rashomon. My Blu-ray was the release by the British Film Institute (BFI) and I cannot fault the production, the image was sharp and the sound clean. My thoughts on the film itself? Well, there are a thousand other places for that, the film isn't public domain, so this isn't the place for another one. The film opened with a little info title stating that the work was reproduced with the full consent of the copyright holders which surprised me a bit, Rashomon was released in 1950, and a court ruling in Japan concerning compliance with international standards on copyright law stated that all Japanese films and possibly all films worldwide released in 1952 or before are in the public domain. 

If, like me, you're curious, sadly Godzilla was released in 1954. I checked that premiere date the second I learnt about that fact. I have no evidence, but I doubt the cut-off date being set before the release of Godzilla was a coincidence, in addition to being a cultural icon and symbol of Japan's media industry Toho the studio behind the big lizard is extremely powerful, connected and super aggressive about protecting its commodities. 

But 1950 comes before 1952, so shouldn't that make Rashomon public domain as well? Sadly not, there's another caveat to be taken into account. In 2006 the Japanese courts passed judgement on making pre-53 films public domain as a way of simplifying the transition to the Berne convention life+70 years approach in regard to releases during the old copyright system, in particular there was controversy surrounding a law passed in 1971 that set protection at 50 years after release, whereas today the term is 70 years after release for cinematic works. However, this did not end the matter once and for all. 

In 2007 due to a lawsuit involving Toho (what a surprise) over non-Toho approved releases of Akira Kurosawa's early movies made for the studio the Japanese courts ruled that for works published up to 1971 the previous legal code on copyright applies which set protection for a work at 38 years after the death of the director. Akira Kurosawa died in 1999 so take that into account and his early works won't be public domain in Japan until 2037. This whole thing is frankly ridiculous, a law that was change in 1971 which itself was changed in the 2000s is still somehow legally binding. 

So, what does this mean? Well, another win for big studio companies and a massive headache for everyone else who wants to make use of Japanese cinema and still remain on the good side of the law. The only positive of the ruling is that it ruled that the director alone is the original copyright holder of pre-1971 films, so we don't have to waste time looking up score and writing credits. I've come up with a rough formula to help determine public domain work regarding Japanese cinema (not legal advice)

1. 1985 was 38 years ago, so find a director who died then or before that date
2. Once established looked through their catalogue of work and make two lists, one for pre-1971 works and the other for pre-1953 works
3. Obtain legal representation anyway, as Japanese copyright law is heavy-handed and actively hostile to concepts such as fair use and derivative work, as Shinobu Yoshida found out after receiving a 2-year prison sentence (suspended for five years) and a million yen fine for let's play videos and anime episode recaps.

Copyright is a confusing slog of arbitrary decisions by powerful entities to promote and enrich other powerful entities. Someday I'll write about the Soviet Union's copyright history, at present I'm still trying to work out the timeline.