The following is a guest post by Mary Daniel, summer 2020 law clerk in the Office of Policy and International Affairs. Mary is a third year at the University of Southern California Gould School of Law.
The Halloween season is the time of year for horror movies and scary stories. However, sometimes it’s the horror movies that find themselves trapped within a scary story. After all, like any creative work, horror movies are bound by the rules of copyright law, and several of the most famous horror films have had frightening encounters with these laws.
Mary Shelley wrote the famous monster novel, Frankenstein, back in 1818, and therefore the story and the original description of the monster’s features have long been in the public domain. However, Shelley’s description of Frankenstein’s monster describes an eight-foot muscular creature with yellow skin, black hair and lips, and pale watery eyes, which is distinct from the typical imagery that “Frankenstein” brings to mind. What has become the archetypal image of the monster did not appear until 1931 in Universal Studio’s film Frankenstein. Universal’s interpretation of the monster was original enough for the studio to own a copyright over its artistic rendition. As the owner of this interpretation of the monster, Universal has not hesitated to object to portrayals of a monster containing all five of Universal’s definitive features: green skin, flat top head, scar on forehead, bolts on neck, and protruding head. As recently as 2010, the publisher of the book Electric Frankenstein reported receiving a cease and desist letter from Universal for artwork included in the book that depicted a creature with the five definitive features. Thus, Frankenstein films and other media since 1931 have had to find new ways to portray the monster that are distinct from Universal’s widely recognized version.
But for a last-minute mistake, the 1968 film Night of the Living Dead could have similarly asserted rights in its original artistic portrayal of zombies. This George Romero film was the first portrayal of zombies as slow moving, flesh-eating reanimated corpses—a portrayal that has since been famously reflected in other uses including Shaun of the Dead, Michael Jackson’s “Thriller” music video, Walking Dead, and more. However, due to an error by the producers, Night of the Living Dead went directly into the public domain, and Romero never had the ability to assert his rights in the unique characteristics of his depiction of zombies.
At the time of the Night of the Living Dead’s release, the Copyright Act of 1909 was in effect, and its formalities required that a copyright notice be affixed to a work in order to be protected by copyright. The film was originally planned to be released under the name Night of the Flesh Eaters. Shortly before its release, several producers decided to change the film’s title, which required a new title card be made and added to the credits at the beginning of the film. The film’s distributor mistakenly forgot to include the copyright notice on the new title card and thus the film fell into the public domain.
The 1922 German silent film Nosferatu is often regarded as a film adaptation of Irish author Bram Stoker’s 1897 vampire novel, Dracula. However, Nosferatu’s creators were denied the right to adapt Stoker’s novel, so the film’s creators attempted to make enough changes to Stoker’s story to avoid being accused of copyright infringement. However, their attempt to avoid a lawsuit in German court was unsuccessful, as the Stoker estate promptly sued for copyright infringement shortly after the film’s 1922 release in Germany.
The most damning evidence against the film was promotional materials and even the opening credits of certain copies of Nosferatu that clearly stated that the film was an adaptation of Stoker’s novel. Unable to ignore such evidence, a German court found Nosferatu to be an unlicensed derivative work of Dracula and ordered that every copy of the film be destroyed. While this should have marked the end of the film’s legacy, one copy avoided destruction and resurfaced in the United States, where it was released in 1929. Under the U.S. copyright law of the time, in order for works by a foreign author to enjoy copyright protection in the United States, the author’s country of citizenship must have had a copyright proclamation or agreement with the United States. Stoker was a British citizen, and under the Chace Act, President Harrison had extended copyright to works by British citizens in 1891, thus making Stoker’s work eligible for United States copyright protection. However, United States copyright law also required two copies of the work be deposited with the U.S. Copyright Office. Stoker had never satisfied this deposit requirement, and therefore Dracula was part of the public domain in the United States. Stoker’s estate was thus unable to take any legal action against Nosferatu in the United States, and the film gained a second lease on life, developing into a definitive piece of vampire pop culture.
These three tales highlight just a few of the interactions between copyright law and the horror genre. Such tales should serve as reminder to always double check copyright laws to avoid the scare of an unexpected law lurking in the shadows.
Plagiarism Today, How Universal Re-Copyrighted Frankenstein’s Monster
Trademark & Copyright Law, Frankenstein & Copyright: 5 Things You Should Know
New York Times, Frankenstein Monster Figures in a Lawsuit
The Verge, The Popularity of Zombies is Due to One Mistake in Night of the Living Dead
Plagiarism Today, Dracula vs. Nosferatu: A True Copyright Horror Story
Tech Dirt, How Copyright Infringement Turned Vampires Into Big Business
Public Books, Blood Brothers: Dracula vs. Nosferatu
U.S. Copyright Office, Circular 38A: International Copyright Relations of the United States