Public Domain & Fair Use: Part Two

And we’re back!  Last week I discussed Fair Use in detail so now’s the time to circle back to public domain laws.

Again: I am not a lawyer.  Do your own research on these laws and get legal counsel (from a copyright specialist) before you attempt to publish anything you think might get you into trouble.

Ok, let’s get back into it.  In 2016 the most important date you need to remember is 1923.  Was the work you wish to use published before this date?  If yes, congratulations!  It’s in the public domain!

Side note: while Public Domain means it’s legally free for you to use, you may occasionally come across a publisher who says something to this effect:

“We do not have the resources to validate rights, and it is therefore our policy to decline all work which makes use of another creator’s universe or characters, including fictionalized scenarios featuring public personalities.  Yes, that includes Holmes and Cthulhu.  Play in your own sandbox, please.” – Zetetic: A Record of Unusual Inquiry 

That’s completely up to the discretion of the publisher and you should respect their wishes and their definition of “Fan Fiction.”  When it comes to submitting your work, the publisher is always right.

Other works can also fall into the public domain depending on whether or not the authors renewed their original copyright and a few other circumstances, but let’s stick with this first example for a moment.  You can look up other cases on your own time.  (Remember: this is just a primer.)

“So, Liz,” you say.  “I want to write a gritty reboot of The Little Mermaid by Hans Christian Andersen and get filthy rich just like Gregory Maguire!  …He hasn’t done that one yet, has he?”

No, but get on that.  Dude’s got an Alice in Wonderland piece in the works already.

“Great!  I’m going to write all about how Ariel–”

Whoa, hold on there, sport.  This is where things get tricky.  The Little Mermaid might be in the public domain but the Disney movie is not.  If you want to write an original retelling of the story you’ve got to go back to the source.

“But Gregory Maguire made a huge plot point over Elphaba’s green skin and that was never in the original text, that’s from the 1939 MGM movie!”

You’re absolutely right, imaginary person in my head that I’m using as a narrative shortcut.  I actually have no idea how he got away with that, especially since MGM has been on a warpath to trademark everything related to that movie in a desperate cash grab.  My best guess is that because Wicked was published in 1995, and most of the articles regarding MGM’s trademark battles are from 2011, it’s possible that he made it in before the legal battles started.  Or he could’ve paid them, who knows.  (The musical based on the book debuted in 2003.)

See how tangled it is?

Here might be a good time to point out the difference between copyright and trademarks.  (Patents are the third type of intellectual property protection, but it doesn’t really apply to authors, unless you invented a new printing press design or something like that.)  Copyrights protect a creative work (the book, the movie, etc.) in its entirety while Trademarks are primarily used by advertisers and businessmen to protect a brand.  Copyrights expire.  Trademarks do not, so long as the company renews them.

So, what does this mean for you?  It means be careful, first and foremost.  The best thing I can advise is to go directly to the source.  You want to write about The Little Mermaid?  Cool.  Reread that story and make sure you’re retelling that tale, not the Disney version.  The minute you include a Jamaican-speaking crab you’re going to find yourself in some legal trouble. Unless of course you’re directly parodying the movie, at which point you’re protected under Fair Use.

To read more about what’s fair game I highly recommend checking out Standford University’s article on Public Domain.  It goes into detail on what is and what is not up for grabs, which is important to know regardless of whether you intend to borrow another’s ideas for inspiration.  You never know, some cheeky fan might be inspired by you some day, and it’s important to know where to draw that line.

Happy writing!

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2 thoughts on “Public Domain & Fair Use: Part Two

  1. Pingback: Public Domain & Fair Use: Part One – Liz Schriftsteller

  2. Pingback: Make ’em Laugh: Comedic Writing (Part One) – Liz Schriftsteller

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