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!


Public Domain & Fair Use: Part One

A.K.A.: How Not to Get Sued.

Couple of ground rules: I’m not a lawyer.  This post is intended as a primer on when it’s acceptable to use other people’s ideas as inspiration for your own original work.  Please consider doing further research and remember that people can sue you even if you’re in the right.   (They just might lose the lawsuit.)

This post will not cover public domain use of music or song lyrics.  Why?  Well, mostly because laws governing music copyright are more complicated and best practices state that it’s more hassle than it’s worth.  If you really want to use lyrics the best thing to do is to contact the songwriter for permission, use extremely old music (70 years after the composer has died), or sift through the info listed here. (Scroll down a bit in the link.)

Ok, now that that’s out of the way, let’s start with the difference between Public Domain and Fair Use.  In general, works in the public domain belong to the public, therefore anyone can use them freely.  We’ll get back to that in a minute.

Fair use has more to do with how people are legally allowed to use copyrighted materials that don’t belong to them.  In general, you’re allowed to use copyrighted works as long as you are either 1.) commenting on or criticizing the work or 2.) parodying the work.

This is why Gilbert Godfried can read excerpts from 50 Shades of Grey and a theater company can produce a musical making fun of the book without E.L. James suing the pants off of them.  (You’re welcome, by the way.)  But it’s also why E.L. James could not legally name her characters Edward and Bella – that copyright belongs to Stephanie Meyer and E.L. James’s erotic novel does not qualify as a parody of Twilight.

Side note: Fan Fiction is almost always an infringement on copyrighted material and it is in their rights to sue you.  Luckily, most copyright holders don’t really care about fans creating content.  It’s free publicity when you get right down to it.  The problem comes when you take something you wrote and then try to publish it.  Publishers won’t touch fan fiction – it’s illegal copyright infringement to make money off of someone else’s intellectual property.  “But what about all those Star Wars novels in the expanded universe?”  Well, those are official licensed.  The author was hired by the publisher to write officially-sanctioned novels and is protected.

There’s some nuance involved here, so be aware that if you’re going to claim protection under the fair use laws you still might be sued, or at least receive a Cease and Desist letter from copyright owner’s legal team.  Again, just because someone threatens to sue you, it doesn’t necessarily mean you’re in the wrong.  If you’re following the rules you could win the case.  However, saying “We do not own this, please don’t sue us!” is not an acceptable legal defense, even if you state it outright.  Duh.

I originally planned for this to be one post, but I realize this is a lot of information to take in.  Instead, let’s break here and I’ll come back next Wednesday with Part Two: Public Domain laws.

Continue to Part 2…