Q&A: What Are the Rules for Making a Remake Based on a Classic Film That Has Fallen Into the Public Domain?
Q: What are the rules for making a remake based on a classic film that has fallen into the public domain? Do the elements of the script fall into the public domain automatically? The film is based on a novel, which is also in the public domain. Does this mean anyone is free to go and remake the film as he wishes or do you still have to get the approval from the heirs of the author (author of novel), director, etc…?
A: Finally, a simple Yes or No question. From now on, I will only answer Yes or No and Knock, Knock, Who’s There questions. After doing this blog for so long, I’m now officially out of jokes and answers — so I’ll start recycling jokes and answers from my old blogs. The jokes may seem a bit stale and out of date and the answers may seem non-responsive, but I’m told I’ll get a good deal of carbon offsets for recycling them.
To answer your question, it depends. Come to think of it, all of our answers have always been “it depends.” We never simply answer questions directly; we always beat around the bush, make lame jokes, go on and on about beside the point points — we love to read ourselves write. Do we get paid by the word? That’s not your business. If you don’t like it, then take your “free question” business to one of our competitors. If you enjoy direct answers to direct questions, you’ve come to the wrong place, buddy.
I genuinely hope you skipped the first two paragraphs above, as they were intended not to be read or written. Back to your question. If the film is in the public domain and the novel on which it is based is in the public domain, then you’re free to remake it. But there may arise a few complications.
You’re right to ask about the script. The fact that the film is in the public domain doesn’t by itself mean that the script is also in the public domain. The film may be in the public domain because it’s a very old film. If that’s the case, then the script is at least as old and is also in the public domain. But the film may be in the public domain for a variety of other reasons. For example, its copyright might not have been timely renewed. Once the copyright in the film was not renewed, it fell into the public domain. On the other hand, if the copyright in the script was renewed, then the script may still be protected.
Even if the script is still protected, it’s based on a novel that is in the public domain. So only elements of the script that are not also part of the novel are protected. For example, if a new scene is added in the script, it might be protected; but a scene that’s taken directly from the novel is not because that scene, together with the novel, is in the public domain.
You also need to be careful with the novel. Here are a few common ways in which a public domain novel can give you copyright headaches. The novel can turn out to be a part of a series of novels. Later novels in the series may still be protected and you need to make sure you don’t use the later novels in your remake. Certainly, you shouldn’t do it intentionally, but you might do it accidentally since protected sequel novels deal with the same material you’ll be remaking.
Now, there is no such thing as accidental copyright infringement. If you lock yourself in a basement and feverishly write non-stop for days and produce a manuscript that is verbatimTwilight and you never heard of or read Ms. Meyer’s masterpiece of ****, you’re not infringing her copyright. Copyright protects against copying not against independent creation. Interestingly, patents protect against independent creation as well as copying. The guy who invented the wheel, if he patented it, could have stopped everyone else outside of China from using it even if they independently invented or reinvented their own wheel. For more witty observations on patents, and if you’re 21 or older, read my Patently Offensive For No Reason Blog on Hustler.com.
So if your remake accidentally is similar to some materials in sequel novels, theoretically you’re not infringing anything. But good luck disproving it, which you may or may not do after eight and a half years of bitter, bankrupting litigation. You’re much better off finding out if the novel is a part of a series and if other novels in the series are protected.
You need to be careful about which version of the novel you use for the remake. It’s not uncommon for old novels, especially the ones that fell in the public domain, to be republished with added materials or other changes. The new materials in the republished novel may be protected by copyright and you can’t use those. Generally, especially with old books, it’s important to make sure that the version you use is the version in the public domain. In the old days, and I don’t mean the ‘90s, many novels were originally published in magazines and later published in book form. Sometimes the magazine and the book versions are quite different. And it might be the magazine version that is in the public domain, but not the expanded book version on which the film is based.
Finally, old novels and books often spawn many derivative productions. It’s not uncommon to see stage plays, other films, one-woman shows, and even apps. Some of this may be still protected by copyright, and to the extent it is, the new elements in these derivative productions that are not part of the public domain versions of the film and novel may be protected.
So the answer to your question is an unequivocal loud Yes, you’re free to make a remake as you wish, without any restrictions, worries, or impediments of any kind, except for all the stuff above. And you don’t have to get approval from the heirs of the author of the novel, director, etc., assuming this is an American novel and film. In America, art belongs to the people not to the snooty artist (immediately 75 years after the snooty artist meets his or her or its maker). Other countries treat artistes with kid gloves; they cuddle them, give them free cigarettes, and pay for their tiny apartments with shared bathrooms. For more details, read the EU version of this blog.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.
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