Please
welcome John T. Aquino to the blog today…
The
Path through the Public Domain Is Twisted but Can Be Fruitful by John T. Aquino
This
should not be regarded as legal advice but as a reflection on legal issues.
A writer’s
inspiration occurs through various avenues, and one way of dissolving a
writer’s block could lie in available works of others.
Not too
long ago, I submitted to an anthology a story in which George Bernard Shaw’s
character Henry Higgins from the play Pygmalion (1913, later adapted
into the musical My Fair Lady) encountered (in a multiverse) the Captain
and the Katzenjammer Kids, Mutt and Jeff, and other early 20th
Century cartoon characters and helped them solve a murder. I was prepared for the
story to be rejected because it was too frivolous or because it merged genres,
but, instead, the editor declined it because, he claimed, it violated copyright
laws.
I almost
understood. Copyright is complicated, and editors are plowing through
submissions and perhaps reluctant to worry about legal issues. But all of the
characters in my story are in the public domain, having been created in the
first two decades of the 20th century. As of January 1, 2024, all
works published in the U.S. prior to 1928 can be utilized without permission or
fee. (Although not without credit. To claim someone’s else’s work as your own
is likely fraud and a crime.) And next year the public domain date will move to
1929 and the year after to 1930 and so on.
I informed
the anthology editor about all of this by email, and he never responded. Also,
my Henry Higgins story would also have the argument that it was a parody and
protected by the First Amendment and allowable under the “fair use” provision
of the current copyright law. But that’s a discussion for another time.
Now, it is
true that most of the cartoon characters and Henry Higgins (through film and
musical adaptations) continued to appear in works published after 1928.
But copyright protection for characters starts with their first publication. As
the recent Sherlock Holmes litigation made clear, only characteristics of
characters that appeared in stories after the public domain cut-off date are
still protected by copyright. Any writer utilizing characters that have passed
into the public domain should focus only on their original incarnations (and
also avoid characteristics from theatrical, film, and television adaptations).
The
practice of utilizing public domain characters is not new. There have been
Dickens and Austen sequels as well as new Sherlock Holmes stories. David Dean won
the 2023 EQMM (Ellery Queen Mystery Magazine) Readers Award with
his story Mrs. Hyde, utilizing characters from Robert Louis
Stevenson’s The Strange Case of Dr. Jekyll and Mr. Hyde.
But the
practice can be extended even further because of the great quantity of works that
have fallen into the public domain. This is partly because of the 1908 U.S.
copyright law that was in force for three-quarters of the 20th
century, which required registration, renewal after twenty-eight years, and the
inclusion of a copyright notice with a copyright symbol on the work itself. If
any of these things were not done, the work fell into the public domain. The 1908
act was replaced by the 1976 copyright act, which doesn’t require registration
and initially established a term of the life of the author plus fifty years for
works of individual authorship once the work is fixed in a tangible medium.
But, as a
result of the 1908 Act, some individual authors, publishers, producers, and
movie studios who held the copyright for novels, stories, plays, and films
didn’t renew them. This dereliction was especially apparent in films.
Production companies rather than studios started making movies in the 1950s and
selling them to studios to distribute, and, when these smaller enterprises
folded, sometimes nobody renewed the copyright. This happened to the 1963 John
Wayne film McClintock after John Wayne died and his production company became
less active. Also in 1963, the film Charade immediately went into the
public domain because the production company didn’t include the copyright
symbol on the print. Similarly, four Charlie Chan movies—Charlie Chan’s
Secret (1936), The Scarlet Clue (1945), Charlie Chan in the Trap
(1947), and The Chinese Ring (1947)—lacked a valid copyright notice (the
first Charlie Chan novel was published in 1925).
In 1998,
the Sony Bono Copyright Term Extension Act extended the individual author
copyright term from fifty to seventy years and did so retroactively, adding
twenty years to active copyrights. The result was that virtually nothing new
was added to the public domain from 1998 to 2018, which is why each year starting
in 2019 works from the 1920s have been losing their copyright protection year
after year.
And so,
there are a number of short stories, novels, plays, and films that are in the
public domain—either because they are pre-1929 or because the rights owners
failed to renew or post a copyright notice on the work. Anything Dashiell
Hammett published before 1928 currently is public domain. His The Maltese
Falcon will lose its U.S. copyright protection in 2026 and his The Thin
Man in 2029. Except for a handful of plays and essays written in his
eighties and nineties, George Bernard Shaw’s works have passed into the public
domain. The copyrights for a lot of mystery films made by small studios were
not renewed, which means that, unless they were based on a story or novel whose
copyright is still active, they are no longer protected by the U.S. copyright
law.
Writers are
known to use works by others for inspiration, tightening and maybe rethinking
the plot, changing character names and motivations—in other words, taking them
as a starting point and then transforming works into their own. But with public
domain works, we can do so with less fear that the owner of the copyright will
consider taking action on the argument that we relied too much on their
property. If we have thoroughly determined that the work is in the public
domain, we could conceivably reinvent the story or, with source acknowledgement,
use the characters in new stories—although, unless you feel there is a
marketing advantage to use the original names, you might feel safer in changing
names and locales.
If you are
a film buff, you are likely to notice that television writers have been
ransacking ides from public domain film mysteries for years.
There are,
of course, caveats. In the case of films, there are a number of issues. One is
that, with films, there are different components that could have been
copyrighted. An easy example is the case of It’s a Wonderful Life. Its
copyright was not renewed, and it fell into the public domain. Public
television stations broadcast it for free for twenty years. But then the owners
of the original copyright hired smart lawyers who made two determinations:
first, composer Dimitri Temkin’s music for
the film had been separately registered for copyright, and they bought the
rights from his heirs, meaning that anyone who broadcast the film without
permission would violate that copyright; and second, they determined that,
based on a then-recent Supreme Court decision involving Hitchcock’s film Rear
Window, the copyright for the short story on which the film is based extended
to It’s a Wonderful Life as a “derivative work.” With these two
copyrights, the owners sent out the message that they would sue anyone who
broadcast the film without permission, and the free showings stopped, allowing
the owners to license the rights. The film is still in the public domain, but
the owners of the original copyright are using the two other copyright
assertions to ward off unlicensed showings.
When I was
teaching a copyright class for filmmakers, I mentioned the Charade lack
of copyright. Afterwards, an ambitious fellow asked me if that allowed him to
film a sequel for Charade since it was in the public domain. I said
that, while the film is in the public domain, when the screenwriter Peter Stone
couldn’t interest anyone in his script, he published it as a novel and only
later sold the screenplay. If you use Charade’s characters without permission, I
told the man, an argument could be litigated that the copyright for the novel
protects the film’s characters, just as it had for It’s a Wonderful Life.
And so, if
you are struggling for inspiration and light upon an idea to revisit characters
and/or plot of a published work, you basically know that pre-1929 works are in
the public domain. If you can’t sleep, consider nighttime reading focused on pre-1929
mysteries of watching DVDs of mysteries from small movie studios. (A bad print
of the film is a good indication that the copyright has expired because that
means it is a copy of copies of copies.) If you are uncertain whether a
post-1928 work is or isn’t in the public domain, you can examine its records
through the Library of Congress copyright database. (If you happen to be in
D.C., it’s actually easier to do it in person.) Then run your idea by your
publisher or lawyer or someone else who is knowledgeable.
It's something to consider. This approach can either spark your imagination to go off on your own or tempt you to use the (hopefully) public domain characters. The latter might be considered pushing the envelope. I can imagine that the editor who rejected my Henry Higgins story fantasized about getting a threatening call from the copyright owners of My Fair Lady. But they would never have owned the copyright in the original character. Talk to someone knowledgeable about your idea and plan before spending the time. But first, dream and dare.
John T.
Aquino ©2024
John T. Aquino is an author, attorney, and retired journalist. He has written over 4,000 published articles and the true crime book The Radio Burglar: Thief Turned Cop Killer in 1920s Queens. His short fiction has appeared in anthologies and periodicals, including Shakespearean Whodunnits, Crimeucopia: Rule Britannia, Britannia Waves the Rules, and Crimeucopia: Through the Past Darkly.
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