"Jane Austen with zombies," how does that (legally) work?

June 13, 2013 12:47 AM

There have been a couple books out in the last few years that have been 're-imaginings' of 'classic works' of literature. The one that comes first to mind is "Pride and Prejudice and Zombies" or "Grave Expectations." Are these 'new' works of fiction entirely, or are they edited versions of the source text? If the latter, how do they exist within copyright law? How 'open' are public domain works like 19th century literature, where the source text is 'free'?
posted by From Bklyn to Writing & Language (18 answers total)

Best answer: Public domain is public domain. Since the copyright has expired, derivative works are utterly fair game. See the relationship with derivative works section of the Wikipedia article on public domain.
posted by zsazsa at 12:56 AM on June 13, 2013 [2 favorites]

Yes, that. And P&P&Z is now a brand new creation with its own copyright, so if you wrote another Austen-zombiefest you may well be breaching it. I am not a copyright lawyer.

And P&P&Z bears only a scanty resemblance to Austen. I personally did not care for it.

Finally, this is also why there are so many cheapo editions of the classics out there.
posted by Athanassiel at 1:01 AM on June 13, 2013

The Wind Done Gone
posted by rhizome at 1:08 AM on June 13, 2013

rhizome: That's a different example, as Gone With the Wind was written in 1936 and is still under copyright. The author of The Wind Done Gone was sued.
posted by zsazsa at 1:39 AM on June 13, 2013 [3 favorites]

In other words, pretty much any public domain books can be sliced, rediced, and pureed to add in any new story - the issue here is whether you're stepping on the unspoken toes of people's memories. Taking the stories of, say, Shakespeare, and adding a pornographic element to it wouldn't exactly be a way to endear readers to it...
posted by chrisinseoul at 2:12 AM on June 13, 2013 [1 favorite]

Taking the stories of, say, Shakespeare, and adding a pornographic element to it wouldn't exactly be a way to endear readers to it...

But giving Sherlock Holmes a wife is apparently okay.

Basically, if it's on Project Gutenberg, you can do what you like with it. But be prepared for the backlash.
posted by Katemonkey at 4:42 AM on June 13, 2013

There is a long and noble (noble? Ok, I guess) tradition of using Other Peoples Stuff. The Mythos (Lovecraft, et al). Heinlein has his characters visit a bunch of Other Peoples worlds in.. his terrible 666 book I think. Alan Moore and Bill Willingham do it (well, for the most part) in League of Extraordinary Gentlemen and Fables, respectively. The incredibly over-rated Magicians has 'Not-Hogwarts' AND 'not-Narnia' for a double dip dose of 'tribute'. Sherlock Holmes stories got several 'extra' not quite authentic Conan Doyle adventures, even back in the day (if i recall right). You could argue even that things like the Iliad and the Odyssey have bits of this.

But yeah, nowadays, it all falls under public domain and fair use and possibly parody (IANAL)

Theres also the sorta related trend where publishers will have a team of authors all writing under the same pen name- See Nancy Drew, romance novels, etc.
posted by Jacen at 6:21 AM on June 13, 2013

rhizome: That's a different example, as Gone With the Wind was written in 1936 and is still under copyright. The author of The Wind Done Gone was sued.

Was sued, and eventually settled, but as the link notes (and the article on the case itself says), the injunction against printing the book was vacated, and "the Court of Appeals found that the likely outcome of a full adjudication of the rights involved was a finding of fair use."

Copyright protects the specific expression of ideas, not the ideas themselves.

My favorite example is "The Twilight of Lake Wobegotten," by "Harrison Geillor" which, yes, is parodying both Twilight and Garrison Keillor's fictional "Lake Wobegone" world.
posted by brentajones at 6:33 AM on June 13, 2013 [1 favorite]

Best answer: There are variations in public domain around the world: Project Gutenberg follows US copyright, so it has some works which are still in copyright in the EU, while it doesn't have others which are public domain in the EU.

It is actually possible to find some 19th century works which could not be used for these kinds of mash-ups in Europe because they're still under copyright here. For example, Mrs Warren's Profession was published by George Bernard Shaw in 1893. Since Shaw only died in 1950, that work is still under copyright here in the EU until 2021 (70 years after the author's death, rounded up to the following January).

I imagine that any author considering one of these mash-ups would stick to something out of copyright all over the world, rather than lose out on a big slice of the possible market.
posted by Azara at 6:42 AM on June 13, 2013

Best answer: Sherlock Holmes is actually an interesting case for understanding this question. Public domain works are fair game for anything, items under copyright can only be used in some circumstances (parody, satire, etc--the Wind Done Gone is a good example here). Most of the Sherlock Holmes books are in the public domain but some of them are still under copyright, and the Conan Doyle estate is going to court over it, to determine whether the character of Sherlock Holmes is under copyright if some of the book still are.

Sticky stuff, copyright.
posted by epanalepsis at 7:41 AM on June 13, 2013 [1 favorite]

Response by poster: So, then here is the twist/wrinkle that I've never quite gotten. If someone were to take public domain novel X and simply swap out some names but keep the bulk of the narration intact (pirate-ifying "Daisy Miller," lets say, but leaving descriptions unmolested), could they say that it's 'their' unique production and etc?
posted by From Bklyn at 8:15 AM on June 13, 2013

Ray Comfort even cashed in on his arch nemesis's opus thanks to public domain. He still managed to plagiarize part of the final product, though.
posted by Rykey at 8:17 AM on June 13, 2013

If someone were to take public domain novel X and simply swap out some names but keep the bulk of the narration intact (pirate-ifying "Daisy Miller," lets say, but leaving descriptions unmolested), could they say that it's 'their' unique production and etc?

Probably not. Under US law, "ideas" cannot be copyrighted, but the "expression" of those ideas can be. By keeping the bulk of the text intact, but just changing the names, the "new" production would be copying quite a bit of the original expression, and thus be infringing.

The line between idea/expression and how much expression you can reuse is a fuzzy one, but just changing the names is definitely on the "oh hells no" side of the line.
posted by sparklemotion at 8:33 AM on June 13, 2013 [1 favorite]

Best answer: but just changing the names, the "new" production would be copying quite a bit of the original expression, and thus be infringing.

I'm not a lawyer, but I think this isn't quite correct as applied to a public domain work. If a work is in the public domain, there is no copyright to infringe upon, and therefore, this sort of change would not be infringing. The question becomes how much change is necessary for it to become a new work that is eligible for it's own copyright protection, and find-and-replace on the names is unlikely to qualify. Since it's not a 'new' work, it would (I think) be governed by the copyright of the source material.
posted by yuwtze at 10:01 AM on June 13, 2013 [2 favorites]

Best answer: "If someone were to take public domain novel X and simply swap out some names but keep the bulk of the narration intact (pirate-ifying "Daisy Miller," lets say, but leaving descriptions unmolested), could they say that it's 'their' unique production and etc?"

This is a question about whether the new work meets the threshold of originality to be eligible for copyright protection in its own right. This depends in part on whether the modifications were "creative additions" or merely mechanical transformations of the original work.

Somewhat related: the idea of a mechanically-produced work:

The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author".

posted by mbrubeck at 10:11 AM on June 13, 2013 [2 favorites]

For the upcoming "William Shakespeare's Star Wars"* permissions were granted by Lucas Films and a percentage of royalties worked out with the publishing house.

*Full disclosure: I know the author
posted by rmless at 10:34 AM on June 13, 2013

Another instructive example is The Wizard of Oz. All of L. Frank Baum's Oz books are in the public domain, but the iconic 1939 MGM movie starring Judy Garland is still under copyright.

Which means that modern-day derivative works, such as Wicked (the stage musical or the book series) or Oz the Great and Powerful, can use elements of Oz which appeared in Baum's books, but using elements which originated in the 1939 movie without MGM's permission would be highly questionable at best. (Would MGM win a copyright infringment case if they did? Maybe, maybe not, depends on a lot of things, but better just to be safe and avoid the possibility of a lawsuit in the firsplace.)

One notable change between the books and the movie is that the silver shoes from the books became the ruby slippers in the movie, so you don't see the ruby slippers mentioned in modern-day Oz-based works. They'll either go back to the silver shoes of the original or not mention the color of the shoes (possibly the shoes themselves) at all.
posted by DevilsAdvocate at 11:43 AM on June 13, 2013 [1 favorite]

Another big complication in this is trademark law. There are characters/settings where the source material (or some of it) is public domain but there are active estates who own trademarks on che names of characters or places and sue people using them for trademark infringement. For instance, Disney squashed a republication of public domain early Mickey Mouse comic strips, titled "The Uncensored Mouse", without any image whatsoever on the cover, on trademark grounds (and then had copyright law changed to retroactively take the strips out of public domain.)
posted by Zed at 3:53 PM on June 15, 2013