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 [email protected]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: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
- Nature of the deposit arrangement
- Type of transfer: gift, bequest, or
- Subject matter of the transfer
- Physical materials
- Exclusive rights of the copyright owner
- Types of copyright grants
- Termination of grants made by the copyright owner
- Copyrights in underlying material contained in the film
- "Fair use" and archival uses
- Other intellectual property and allied rights
- Agreement to supplement the deposit materials
- Mechanics of the transfer
- Duration of the deposit arrangement
- Term of the deposit
- Term of restrictions on the use of the deposit materials
- Termination provisions
- Access to the deposit materials
- Access to the materials by patrons of the archive
- Access to the materials by the donor
- Role of the archive
- Types of archival care
- Insurance and indemnification
- Security arrangements
- Prohibition on transfer of the deposit materials
- De-accession of deposit materials
- Publicity and confidentiality
- Publicity regarding the deposit agreement and materials
- Miscellaneous provisions
- Representations and warranties
- Address for notices
- Requirement that amendments be in writing
- Reservation of rights
- Choice of law
APPENDIX: Discussion of moral rights, rights of publicity & privacy, trademark law, and collective bargaining agreements
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?
II. Access to the deposit materialsThe 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.
III. Role of the archiveAll 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.
IV. Publicity and confidentialityWhere 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.
V. Miscellaneous provisionsNo 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.
APPENDIXOther 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. 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). 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. 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 textReturn 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.
(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
- 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."
(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: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."
(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