copyright translation
When is making a subtitle file for a commercial movie legal?
<p>For example, on OpenSubtitles, a website which offers 3.5 million subtitles we can read <a href="http://www.opensubtitles.org/en/disclaimer" rel="noreferrer">Disclaimer</a>:</p>

<blockquote>
  <p>These files are NOT illegal warez downloads, we only offer files that we believe we are free to redistribute.</p>
</blockquote>

<p>Therefore when does creating/making open subtitles for commercial movies/TV and publishing it become illegal in <a href="https://en.wikipedia.org/wiki/First_World" rel="noreferrer">First World</a> countries?</p>

<p>Does it depend on the production company (if they agree or their license), format of the file (like <a href="http://www.opensubtitles.org/en/faq#formats" rel="noreferrer">IDX+SUB</a>) or something else?</p>

<p>Making and sharing and using subtitles for movies is not legal. It is copyright infringement. <em>I paint this statement with a very broad brush</em>.</p>
<p>The movies are copyrighted (they are original and fixed in tangible form). (<a href="https://www.law.cornell.edu/uscode/text/17/102" rel="nofollow noreferrer">17 U.S. Code § 102(a)</a>)</p>
<p><a href="https://www.law.cornell.edu/uscode/text/17/106" rel="nofollow noreferrer">17 U.S. Code § 106(2</a>) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of <strong>derivative works</strong> based upon the copyrighted work.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow noreferrer">17 U.S. Code § 101</a> defines <strong>derivative work</strong> as</p>
<blockquote>
<p>a work <strong>based upon</strong> one or more preexisting works, such as a
<strong>translation</strong>, 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....</p>
</blockquote>
<p>So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. <a href="https://www.law.cornell.edu/uscode/text/17/107" rel="nofollow noreferrer">17 U.S. Code § 107</a> provides some examples of fair use:</p>
<blockquote>
<p>criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research</p>
</blockquote>
<p><strong>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.</strong></p>
<p>If the files <strong>are</strong> used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use:</p>
<blockquote>
<p>(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;</p>
<p>(2) the nature of the copyrighted work;</p>
<p>(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and</p>
<p>(4) the effect of the use upon the potential market for or value of
the copyrighted work.</p>
</blockquote>
