Copyright gray area...

[TheMusicMan76]

So I've recently been reading some old books that I would love to adapt to an audio series. These books are now in Public Domain. However, characters and story elements from these books were strongly used as influence for later stories, comics, radio, tv, and movies that are apparently now held in copyright by someone else...

So one route is obviously contact those who now hold the rights and see what would be involved to officially license the characters.

But seeing as the books I plan on using for the bulk of my series are in public domain, do I still have a legal right to freely create an audio drama based off the book?

I would think the answer would be "yes" to this... However I would like to use some of the elements from the latter productions, and eventually a full on revival series.

Any thoughts? Sorry to be a bit vague as to what I'm talking about... just wanna kinda keep my idea as secret as possible before I decide to go full steam ahead.

[JulieH]

This was a very unfortunate grey area recently for some of the most awesome folks here.

I'll let them tell their story, but NEVER underesitmate the power of "big company who owns the copyrighted character and trademark name" to crush the "but - but the book's in the public domain" underdog.

[Wolfshade]

	Quote:	TheMusicMan76
	But seeing as the books I plan on using for the bulk of my series are in public domain, do I still have a legal right to freely create an audio drama based off the book? I would think the answer would be "yes" to this... However I would like to use some of the elements from the latter productions, and eventually a full on revival series.

I'm no lawyer, and maybe I misunderstand you, but it sounds like you're trying to use old public domain material as an excuse to create a series based off of modern, copyrighted material. This is like trying to stretch some gray area over the top of some very black-and-white legalities. I doubt that it would end well.

[Peaches]

I, also, am no lawyer. However, there is some recent semi-precedent that should make things a bit more black and white.

Consider the case of Repo! The Genetic Opera (2008) The basic idea: A company makes replacement organs for injured or sick people on loan. When people cannot afford to pay, the organs are repossessed. It is set as a rock opera and the story centers around a father (a repoman)/daughter couple.

A new movie, Repo Men(2010), follows the basic idea that a company who makes replacement organs for injured or sick people on loan. When people cannot afford to pay, the organs are repossessed. It is an action thriller with loads of explosions, death, and destruction and centers on two repo men.

Sound familiar?

The original creators of Repo! thought so, too, and tried to see if they could sue. The lawyers basically told they had no grounds to sue.

	Quote:	Terrance Zdunich
	Several entertainment attorneys told us that while the script, characters, and music of REPO! are copyright protected, the ideas are not. In other words: unless exact lines of dialogue or identical lyrics were lifted from REPO! and placed into Repo Men—which would prove beyond a doubt that plagiarism had occurred—that we did not have a case. We were further told that attempting to litigate against Universal’s mammoth legal team would be, in effect, financial suicide.

So, in effect, you are OK lifting directly from the public domain work as you copy the characters, scenes, whatever, exactly. Even for new derivative works. That is the meaning of public domain.
Or, if you copy the ideas presented in the story, but leave the characters, dialog, etc... to your own devices, you're fine, even from a copyrighted work.

However, just because legally you're in the white, that doesn't mean someone else won't or can't sue you. In the US, at least, you can be sued for just about anything. If a sufficiently large entity decides to target you, you will lose. Not because you're doing something wrong, but because they have more money than you and you will go bankrupt trying to fight them.

Before you go any further, I would find and become friends with a copyright lawyer. He or she will want a pretty penny for their insight, but they can mean the difference between a successful business adventure using public domain stories or being torpedoed and sinking into the cold cold waters of bankruptcy.

Adam
(and again, I'm not a lawyer)

[JulieH]

Yes, ideas themselves are not protectable - just the words/music/pictures you use to illustrate the idea.

I'm not a lawyer either, but I work in legal (and, in fact, in intellectual property - though our focus isn't copyright).

And, it is a sad fact that often he with the bigger stick (or larger bank account) does often win - or at least run the other into a hole so deep they can't make it to court.

And, sadly, no matter how much you may be in the right with a book in public domain (for instance, Tarzan of the Apes), you honestly shouldn't waste your time adapting it, since Tarzan is a viable trademarked/licensed character of large companies, and they will be upset.

You could change the name of that particular character and probably skate by, but why not just find something else to dramatize, at that point?

Now, before you start thinking that large corporations are just money-grubbing bastards, keep in mind that when one owns a property like a trademark, if one doesn't protect it, one loses it.

What this means is here's this character/name/trademark that they've spend umpty-thousand dollars cultivating and making a household word, and your production is an actual threat. Frankly, if I was in their shoes, I would do the same thing. Otherwise, you're basically flushing large piles of money down the toilet.

It is possible, if you contact them, that they might grant you some limited permission, since that covers them in the "protect it or lose it" department - but honestly, there's no real incentive for them to do so. If you do, and they do - MAKE SURE TO GET IT IN WRITING. A signed and notarized agreement, covering who does what to whom for how many jelly beans. Otherwise, they might change their mind later and plough you under.

[TheMusicMan76]

	Quote:	Wolfshade
	I'm no lawyer, and maybe I misunderstand you, but it sounds like you're trying to use old public domain material as an excuse to create a series based off of modern, copyrighted material. This is like trying to stretch some gray area over the top of some very black-and-white legalities. I doubt that it would end well.

This is not my intent at all. I have read the book "Armageddon 2419 a.d." and currently reading "The Airlords of Han" ...both of these novels were written by Philip Francis Nowlan, published in 1928 and 1929 respectively. They are now in public domain.

The novels follow the story of a WW1 vet who is then trapped in a mine, passes out and is preserved by some mysterious gas and reawakens 500 years in the future... the main character in this story is Anthony Rogers.


To shed some light on my plight though, these novels were the core inspiration for the "Buck Rogers" comics created by John Flint Dillie (which Nowlan originally worked on as well) and everything that followed (radio, film, tv, etc...)

Now, my thing is that from the comics onwards, everything Buck Rogers was marketed for a young audience... but the books are amazing adult sci-fi. Also, everything Buck Rogers after the books barely touches on the story told in those novels...

So my audio drama series would be a new original take on this story, and following the events and character development that takes place in these books.... with hopes of THEN taking it to a full fledged new "Buck Rogers" audio series.

As of last year the Dillie Family Trust has obtained and now holds the rights to Buck Rogers. There are some new Buck Rogers things appearing, ie a new comic book, and a new web-based 'tv" series.

They do seem very open to having people license Buck for more new developments, which is very promising. The "official" website is still pretty small (like a subdomain from one of their other companies) and the e-mail to contact for licensing is just the guys name at gmail... so still seems pretty low-key now.

Honestly I think I could easily get away with the novels on their own, but as I said, I want this to lead into a new Buck Rogers story... so I do plan on contacting the Dillie Family Trust and seeing what they think. Afterall, going the official route could help promote this that much more vs. trying to sneak by underground.

I just wanted to bounce some ideas out there, thanks for the input folks! Feel free to share anymore thoughts too!

[JulieH]

Yeah - with something like that, they sound small enough that if you can work WITH them, it might really make a promising partnership.

Do still get things set out in writing - even if you're both super happy to work together, it's good to outline who does what, and has which rights, in case someone forgets/dies/quits/gets bought out....

[I actually always enjoyed the first book, but haven't read it in years - never came across the second one]

[sounddguy]

Definitely either consult an attorney or have a very clear and solid approval from the trust IN WRITING. There is nothing worse than investing lots of time and money in production only to receive a cease and desist letter or worse.

I have spent over $3k to prove that water runs downhill naturally. It's not having a winning case that counts, it's avoiding the expense.
As Obi-Wan Kenobi said, we wish to avoid Imperial entanglements.

I cannot over stress the clear in writing point either. I know a group that had a verbal agreement with the owner of a property and created an audio adaptation for that owner that was performed at a large event for promotion of the book that the adaptation was from and then the owner reniged on the agreement for use by the group beyond that single performance.

That was weeks of writing, rehersal and performance down the drain. It was a small non profit against a large well monied establishment. They couldn't afford the litigation. Live and learn the hard way.

[JabberBjorn]

I have two different suggestions, based on what you want to do.

If you really like the stories that are now in public domain, adapt them for radio drama and have at. Enjoy it.

If you really like the characters, and you want to put them into new stories, consider what you like about the characters idea-wise, consider what story you want to put them through, and create your own dang characters in your own world. This is very familiar territory in the realm of comicdom. Captain Marvel and Superman (now moot), Hawkeye and Green Arrow (who of course has nothing to do with Robin Hood), Batman and Moon Knight. Just like the REPO example, it's fair game.

There's a B Movie outfit in LA called The Asylum that specializes in this sort of thing to an ingenious if duplicitous and cheesy way. Pirates of the Caribbean sequels coming out? Well, let's release "Pirates of Treasure Island." Transformers coming out? Well, we'll release "Transmorphers"

No, I'm not saying do a cheese-tastic ripoff, just that you can go and do your own thing even if your own thing is inspired by something else, especially in the public domain.

I know one indie filmmaker who did some fan films of famous comic properties, but to continue as a filmmaker who wanted to do superhero films, he created his own.

In either case, you probably want to run either idea by an intellectual property/entertainment lawyer. (And they'll probably think it's a good idea to talk to them before talking to the owner of the characters).

[alexachipman]

Talk to Bill Hollweg. He recently ran into this exact problem-- the book was in public domain, but one of the characters was later adapted into some films and BrokenSea was then targeted by lawyers.