And Night is not alone, the field of public domain horror is quite crowded. One of the latest entries to fall into the hands of the public is 1979s Driller Killer (DK). The late year of release tells us that this is a case similar to Romero's Night, failure to properly follow the copyright offices requirements. DK is an infamous entry in the slasher killer sub-genre of horror, and was given the honour of being included in the list of "Video-Nasties" in the UK. That designation was supposed to be a mark of shame and drive off consumers from indecent material, but often turned into a mark of fame that increased sales.
Since DK is in the public domain it's very easy to find online, even the wikipedia page includes an upload of the film to view. However, despite or perhaps because of its popularity, DK is occasionally the subject of discussions surrounding the ambiguity of ownership. On trading boards I lurk on it, once in a while someone will pop up asking for confirmation, usually citing a copyright mark on the version they came across.
I do understand where these questions come from, what these questioners are asking for is an authoritative figure to come down and declare one way or another Yes/No. And unfortunately that just isn't how it works, there is no such authority on the planet. The issue is that essentially when you ask if this thing public domain? You're asking for proof of a negative. And how exactly do you do that? It's easy in contrast to prove the opposite, owners go to court to prove their claim.
Even governmental authorities who oversee copyright and intellectual property legislation will not make such a distinction. I've communicated with the UKs copyright office on several matters, and while they are more than happy to answer queries, they repeatedly make clear that they will NOT under any circumstances weigh in on matters regarding specific works. The US Library of Congress has massive archives of material that are in the public domain, but even that material always carries this disclaimer:
The Library of Congress is not aware of any U.S. copyright or other restrictions in the vast majority of motion pictures in these collections. Absent any such restrictions, these materials are free to use and reuse.
In rare cases, copyrighted motion pictures are made available by special permission to the Library and may be used only for educational purposes. For example, the Gershwin home movies fall within this category. Rights assessment is your responsibility. No registration information exists for some titles, and reproduction of some titles may be restricted by privacy rights, publicity rights, licensing and trademarks. Additionally, some works may still be protected by copyright in the United States or some foreign countries. The written permission of the copyright owners in materials not in the public domain is required for distribution, reproduction, or other use of protected items beyond that allowed by fair use or other statutory exemptions.
Whenever possible, we provide information that we have about copyright owners and related matters in the catalog records, finding aids and other texts that accompany collections. You should consult the catalog information that accompanies each item for specific information. This catalog data provides the details known to the Library of Congress regarding the corresponding item and may assist you in making independent assessments of the legal status of these items for their desired uses. You should also consult restrictions associated with donations to the Library.
Credit Line: Library of Congress, Motion Picture, Broadcasting, and Recorded Sound Division.
Bolding mine.
What that says is they don't know but assume that the material they're presenting is no longer under copyright restriction. This is legal cover designed to protect them in case a work is copyrighted, and they've hosted it and the rights holders are angry. And that's the Library of Congress, an institution attached directly to government and with an extensive staff of lawyers and researchers.
So, if we cannot rely on our leaders for clarity who can we trust? Well, we have to trust ourselves. Intellectual Property is confusing and arbitrary, but there are things we can do to give us some idea. For an example I was once contacted by some documentary maker wanting to know if the 1935 British social film Housing Problems was public domain. To which I replied "there is no source, look at the UKs copyright legislation and its criteria for copyright protection". That's what you have to do in general, figure which is its country of origin, look at the copyright laws in place at the time and then look at current copyright laws in existence today and if the work is of foreign origin look at if your country has a provision like the rule of shorter term (whereby foreign works that are public domain in their home countries are also public domain in yours even if they would not be if they were domestic creations). And there you go.
For DK we have plenty of evidence that it is in fact public domain, DK was made and released at a time when US works required proper copyright notices and a registration that conformed to the requirements of the copyright office of the United States of America. Lots of people get this confused and think a c in a circle was all that was required but no, failure to put a correct notice on the work meant the work lost its copyright protection, but you also needed the correct registration, the copyright office can reject registration applications so it's the registration that is the key determiner. To complicate matters, there was an amendment to US copyright law that gave creators five years to retroactively copyright material, so we're looking at the years 1979-1984, if we look on the US copyright offices' database we do find records for copyright registration of the movie Driller Killer.
However, the earliest of these is 1991, and there are multiple entries for that year and when we look at them the names of the registrants include Quigley Down Under and Butley who were VHS distributors, who worked internationally. The time span for registration has expired, and none of those entries are listed as renewals of an older copyright. Here, the years of registration count against the film having a copyright, as does the number of entries by different competing businesses. Generally speaking, when you see multiple competing companies offering the same product, that's an excellent piece of evidence that the work they are selling is out of copyright, if you're wondering why that is, there are too reasons. First, if the product is still in copyright these companies would be purchasing or licensing the IP and the whole point of IP is exclusivity, that's how you make money off a product, no one else is legally allowed to exploit IP you own. It just doesn't make business sense to license a product to then compete in a crowded market. Second, if the product is in copyright, what these companies are doing is illegal, and they've created a strong paper trial to the material steps they've taken in their crime. The man selling pirate DVDs in pub car parks can disappear when the heat turns up, but it's a lot harder to hide bulk orders and shipping of products you're actively advertising that you have.
The above is good practice in general, but for Driller Killer in particular there is even more evidence we can look at. DK is an independent horror movie, now when we see the word independent or indie and the movie in question looks made on a limited budget we often assume It's made by an amateur on a shoestring and who may not have been aware of the legal niceties regarding contracts and rights, but that isn't so with DK. The Director and Driller Killer of Driller Killer is Abel Ferrara, Ferrara has made and released many films before and since DK and is still alive and working today. As far as I am aware, all the other movies in his catalogue are in copyright, if DK belonged to anyone it would be him, and yet there is no evidence that Ferrara has made even an attempt to prove that the film did in fact qualify for copyright, there is no court case nor press releases stating this.
To compare this with another late 70s public domain slip up A Boy and his Dog, Harlan Ellison spent years trying to argue that the film was in fact copyrighted to him, but at no point did he provide any legal proof, and eventually he gave up talking about the film at all. If there is an owner of DKs IP out there, they've been quiet for decades and the onus is on them to prove their claims.
