Captain Thunderbolt (1951) - copyright and access issues
| Captain Thunderbolt 1951 | Copyright & access issues | References |
Abstract: The following is an argument for the Public Domain status of the Australian bushranger film Captain Thunderbolt (1951) and removal of the present 113 year copyright restriction, which does not expire until 2064. The argument was put to the Australian Copyright Council during February-March 2024. Unfortunately it was rejected in large part, and the restrictive copyright remains in place in regard to script and musical content maintaining copyright over the entire final version of the film. As a result, free, unrestricted access the film does not exist and, as a result, it remains largely unknown and inaccessible to the general public and educational institutions, much to the detriment of the study and promotion of Australia's film heritage.
Introduction
Australia's first combined cinema and television film Captain Thunderbolt was produced by the Sydney-based Associated Television Pty Ltd (ATV) during 1951, and subsequently first publically shown in 1952. ATV was purchased in 1964 by the Fairfax Corporation. It in turn, as Fairfax Media, was purchased during 2018 by Nine Entertainment. As of 30 January 2024, all rights associated with those companies, including ATV and any rights relating to Captain Thunderbolt, had passed on through Fairfax Media to Nine Entertainment. The present author is not aware of any specific legal rights, such as copyright, relating to ATV's production of Captain Thunderbolt having passed to any other party during the period 1951-2024, apart from possible (and limited) initial broadcast rights.
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The various rights
According to the current version of the Australian Copyright Act 1968, copyright in the original 69 minute long cinematic film version of Captain Thunderbolt persisted for a period of 70 years from its first public presentation on 12 July 1952 at the 7th Karlovy Vary International Film Festival, Prague, Czechoslovakia, until 31 December 2022.
Copyright in the shortened, 53 minute long television broadcast version remained with the initial broadcaster (at present unknown) for a period of 50 years following that broadcast. As this likely took place during the late 1950s or early 1960s, this broadcast copyright was extinguished by the early 2010s, and would therefore apply to the copies at present held in the National Film and Sound Archive of Australia (NFSA) collection and the Czech Film Archive (CFA) collection.
The copyright in the final, released version of Captain Thunderbolt rested with the production company (Associated Television Pty Ltd) and subsequent owners of that company (Fairfax Corporation / Fairfax Media and Nine Entertainment). It remained in place for a period of 70 years after the year of first public screening (1952), i.e. until the end of 2022.
Individuals involved in the production of the film maintained a moral right to be recognised for their work, and cited as such. This would include the producer, script writer, director, cinematographer, actors, technicians, etc. The moral right extends for a similar period to the copyright and can only be claimed by the creator of that moral right.
These limited rights apply to individual elements of the completed film, but not the completed film itself. Dramatic work rights include dramatic and creative elements of the work of the screenwriter, producer, director, cinematographer, set designer, costumer designer, etc. They pertain to the rights to reproduce those elements in live dramatic performance or other forms of recreation.
According to the Section 33 of the consolidated Copyright Act 1968 (https://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s33.html) and the table therein headed "Duration of copyright - works first made public before 1 January 2019", where according to the Act "work" means a literary work, a dramatic work, a musical work, an artistic work or a cinematograph film:
"(1) The copyright continues to subsist until 70 years after the calendar year in which the author of the work died" only if "no other item of this table applies."
In fact, there is another item in the table that applies, namely:
"2(a) If the work is (ii) a dramatic work - 70 years after the calendar year in which the work was first made public."
Section 2(a) (ii) therefore overrides section 1 of the table, as specifically stated, and required under the Act.
Therefore, copyright in Captain Thunderbolt (1951) existed for 70 years after it was first made public in 1952 i.e., until 1 January 2023.
Also, a precise reading of the Act also clearly defines the Maker of the film (i.e. Associated Television Pty Ltd) as the previous owner of the copyright in the completed cinematographic film, and not the producer, director or script writer.
With the film therefore in the public domain, copies held by, or accessible to, the National Film and Sound Archive of Australia, or Czech Film Archive, can be made available to support research, teaching, learning and any commercial endeavours the organisations may wish to engage in or support.
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Chronology of corporate ownership
The following information refers to legal issues surrounding the "ownership" and intellectual property rights (i.e. copyright, moral rights, "dramatic works" rights and physical ownership rights) regarding the Australian film Captain Thunderbolt (1951). It should be noted that Associated Television Pty. Ltd is the official name of the original production company, and therefore rights holder to the original film as presented to the public from 1952. This name is as given on the front page of the 1951 Shooting Script for Captain Thunderbolt used by Charles Tingwell (Alan Blake), now in the National Film and Sound Archive of Australia, Canberra. The company name is presented in the media during the 1950s and 1960s as variants such as Associated Television Productions Ltd.
1951
* Captain Thunderbolt is produced by Associated Television Pty. Ltd. They are the owners of the production, and they employ all those involved in its creation. The owners of ATV are the shareholders. Those who worked on the film were commissioned to do so.
Reference: Associated Television Pty Ltd., ATV. Background and Acquisition, 1947-1964, File 032 within the series John Fairfax Limited Treasurer's Files 1932-1981, State Library of New South Wales, MLMSS 9894/Box 1086.
1954
* 8 December 1954 - [The Importance of Television] Letter to Prime Minister Robert Menzies from C.G. Scrimgeour, Chairman and Managing Director, Associated TV Pty Ltd - Television Service of Australia, Television City, Sydney, regarding the importance of television, with an attached 4 page document by Scrimgeour entitled Television is Television.
1958
* 3 October 1958 - Incorporation of Associated Television (Australia) Pty Ltd.
Reference: Certificate of Incorporation of Associated Television (Australia) Pty Limited 1958, within the series Fairfax Media Limited Business Archive 1795-2006, State Library of New South Wales, MLMSS 9894/Box 2027X.
1964
* 29 June 1964 - the Fairfax Corporation agrees to purchase all shares in ATV and thereby gain control of the company and its assets, including part ownership of radio 2GB. This process is completed in December 1964.
References:
(1) Float of A.T.V. 1964, File 038 within the series John Fairfax Limited Treasurer's Files 1932-1981, State Library of New South Wales, MLMSS 9894/Box 1087.
(2) Associated Television Pty Ltd ATV 1964, File 028 within the series John Fairfax Limited Treasurer's Files 1932-1981, State Library of New South Wales, MLMSS 9894/Box 1086.
(3) A.T.V. (Associated Television Pty Ltd) 1964-65, File 029 within the series John Fairfax Limited Treasurer's Files 1932-1981, State Library of New South Wales, MLMSS 9894/Box 1085.
(4-5) Associated Television Pty Ltd 1965, Files 030 and 031 within the series John Fairfax Limited Treasurer's Files 1932-1981, State Library of New South Wales, MLMSS 9894/Box 1086.
2007
* John Fairfax and Sons / John Fairfax Holdings evolves into Fairfax Media.
2018
* Fairfax Media merges with Nine Entertainment (Nine Entertainment Co. Holdings Ltd).
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References
Copyright - Film and Television Broadcasts, University of Melbourne.
Moral Rights and Citing Material, University of Melbourne.
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| Captain Thunderbolt 1951 | Copyright & access issues | References |
Last updated: 8 April 2024.
Michael Organ, Australia
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