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[1]. 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[2].

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[3].

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...