Thursday, September 13, 2018

Public Domain

I've been spending a lot of time contemplating the public domain.  The public domain refers to that body of literature, of art, of music, of film, of any creative work where no intellectual property claim can be asserted.  The works we have determined belong to everyone.  Generally, these are older works, the classics.  Ones where the author or creator has been dead for a very long time.  Songs like Amazing Grace.  Plays by Shakespeare, Moliere, Oscar Wilde.  For other works, failures to renew older copyrights often led to works ending up in the public domain earlier than their creation would have required.  Like the original Night of the Living Dead or the Corman Little Shop of Horrors film.

Generally, the public domain is a useful tool for new artists.  It allows them to pull from familiar works to create new derivative works.  All of the songs that have been set to Amazing Grace or the various adaptations of the song.  A lot of modern Christian music benefits from the ability to freely take old hymns and adapt them in new ways.  Further, sometimes you get new and unexpected sequels, like Death Comes to Pemberley by P.D. James, a 2011 sequel to Pride & Prejudice.  Because Pride & Prejudice was in the public domain, James was able to use all the existing characters and settings created by Jane Austen to create a new work.  The public domain likewise enabled Seth Grahame-Smith to take the original text of Pride & Prejudice, remove select portions, insert a few new ones and create Pride and Prejudice and Zombies.

I've been thinking about it a lot, as the first two plays that I've been working on make heavy use of public domain material, or at least material that is hopefully in the public domain. Thou Fair Eliza as an adaptation of Pygmalion leans heavily on the original 1913 script being in the public domain.  This enabled me to use a similar technique to Seth Grahame-Smith, condensing the existing material and removing certain characters altogether, while inserting new bridge scenes and expanding on others. Further, it allowed me to include portions of Ta-Ra-Ra Boom-De-Ay and the Robert Burns poem Thou Fair Eliza within the script.  There is a little fuzziness on the issue due to later revisions of the play by Shaw that were copyrighted as well.   Regardless, all works by George Bernard Shaw will fall into public domain in 2020.

The End of Civil Discourse presents a different challenge.  Are there any intellectual property rights implicated by the spoken word content of the televised debates?  If so, whose property would it be?  ABC's, Vidal's and Buckley's?  Or is the content part of the public domain?  From what I can find, it seems to be public domain as the content of the "news" or unscripted discussion is not protected, but the broadcast itself is.  Meaning, I couldn't show the actual taped debate, but I could have someone say the words they spoke.  If I can settle that issue, the next I need to tackle centers on likeness rights.  Fun times.

It's trickier than you might think.  After all, "Happy Birthday to You" was under copyright in the United States until 2016.

* - Obligatory note for this post.  This post does not constitute legal advice, nor does it create a legal relationship where attorney-client privilege could attach.  You cannot rely on this post for any legal proceeding you may have, please seek your own independent legal counsel for that.  This is just my ramblings on the writing process.

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