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For example, on OpenSubtitles, a website which offers 3.5 million subtitles we can read Disclaimer:

These files are NOT illegal warez downloads, we only offer files that we believe we are free to redistribute.

Therefore when does creating/making open subtitles for commercial movies/TV and publishing it become illegal in First World countries?

Does it depend on the production company (if they agree or their license), format of the file (like IDX+SUB) or something else?

Nicolas Raoul
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kenorb
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1 Answers1

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Making and sharing and using subtitles for movies is not legal. It is copyright infringement. I paint this statement with a very broad brush.

The movies are copyrighted (they are original and fixed in tangible form). (17 U.S. Code § 102(a))

17 U.S. Code § 106(2) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of derivative works based upon the copyrighted work.

17 U.S. Code § 101 defines derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted....

So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. 17 U.S. Code § 107 provides some examples of fair use:

criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

If these subtitle files are not used for a fair use purpose (the examples cited are examples only, not an exhaustive list) then translation is infringement.

If the files are used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

jqning
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  • For the purpose of (3), is "the copyrighted work as a whole" the movie or the original script? – Random832 Sep 11 '15 at 19:33
  • With subtitle files it could be either perhaps. The spoken words (what becomes subtitles) are a part of the movie as a whole. The script might be its own work. I suppose it depends on how the subtitles are generated - ie what they are a copy of. But keep in mind that we don't even get to (3) unless the use is one of the enumerated fair use categories (or similar categories as a court may determine). – jqning Sep 11 '15 at 19:40
  • Is transcription different to translation, or the same rule applies? – kenorb Aug 01 '17 at 15:24
  • @kenorb translation is a derivative work, so it's prohibited. – jqning Aug 06 '17 at 21:15
  • Translation is translating from one language into another, however transcription is representation of the same language but in written form (e.g. English subtitles to English-spoken movie). Above cite doesn't mention transcription. – kenorb Aug 06 '17 at 21:21
  • @kenorb I see what you're asking. It seems to me that transcription is even more likely to infringe than translation because it's a literal, word for word, copy of the original. As opposed to a translation which arguably requires some interpretation and original thought. – jqning Aug 06 '17 at 21:26
  • "f these subtitle files are not used for one of these purposes then the creation, sharing, using, and translation is not fair use, it is infringement. This is a common misconception, bu badly mistaken. The purposes listed in the 1st part of 17 USC 1097 are examples not conditions. It is the stuatory factors and te analysis under them that control whether a use i8s a fair use. Courts have found fair use where the purpose is not any of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". This is a question of its own – David Siegel Aug 10 '22 at 02:27
  • @DavidSiegel edited – jqning Aug 17 '22 at 22:04