Zombies, Fair Use and Public Domain
The bane of a copyright lawyer is to see an issue where normal people just see a good read. Case in point: Death Comes to Pemberley, the latest murder mystery by the great P.D. James, and the latest in a series of "sequels" or knockoffs of Jane Austen's Pride and Prejudice. The hands-down winner for the best knockoff title is, of course, Pride and Prejudice and Zombies, which begins with a twist on one of the most famous opening lines in literature: "It is a truth universally acknowledged that a zombie in possession of brains must be in need of more brains."
If copyright still protected Jane Austen's original novel, she would have decent copyright infringement claims against Ms. James and Zombie author Seth Grahame-Smith. The same might not be true for some of literature's greatest knockoffs.
For example, John Gardner's Grendel is a poignant retelling of the Beowulf epic, narrated from the perspective of the monster. That retelling unquestionably makes a "fair use" of the original. So, too, does Wide Sargasso Sea by Jean Rhys, a "prequel" to Charlotte Bronte's Jane Eyre. The prequel is the haunting story of Antoinette Cosway, the Jamaican first wife of Jane's love, Edward Rochester--the mysterious mad woman in the attic who eventually burns down the mansion and jumps to her death from the flaming roof. The Rhys novel is the epitome of a "transformative use" under copyright law.
Not that it matters. Knockoffs, sequels, prequels and spoofs of works in the public domain make the publishers' lawyers sigh in relief over not having to wade into the swampland of the modern "fair use" doctrine.
Sadly, though, the one lesson for publishers from the past few decades of litigation is that you proceed at your peril if you publish a literary work that purports to build upon, poke fun at, or re-imagine a prior work that is still protected by copyright. Even though the world of fan fiction thrives on the Internet and is usually tolerated and occasionally encouraged by the copyright holders (often of science fiction movies and TV shows), publication of actual books tends to incite lawsuits.
One recent example is the novel 60 Years Later published under the pen name John David California. The novel is inspired by the plot and characters of J.D. Salinger’s famous novel The Catcher in the Rye. It opens 60 years after publication of the Salinger novel and features a fictional confrontation between a 76-year-old Holden Caulfield and the 90-year-old Salinger. The story of the ensuing copyright infringement lawsuit, injunction, and subsequent settlement is excellently told in a post at the Copyright and Trademark Blog.
Among the predecessors to that litigation are:
- Gone With The Wind versus The Wind Done Gone, in which Alice Randall's retelling of the Margaret Mitchel novel from the perspective of the slaves was ultimately deemed a "fair use" in a decision by the 11th Circuit Court of Appeals ; and
- The Cat in the Hat versusThe Cat NOT In the Hat, where the 9th Circuit affirmed the preliminary injunction halting publication of a picture book retelling of the O.J. Simpson trial using familiar images and rhyme patterns from the Seuss books.
Unfortunately, the opinions in those three cases have not eliminated the fuzziness of the "fair use" doctrine in the literary realm. Re-read each court's explanation for why the particular work at issue either qualifies or fails to qualify as a "fair use," and then apply that explanation to the work at issue in the other two cases and see if the explanation can't "justify" the opposite resolution of the "fair use" facts at issue in that case.
We--and by "we," I include authors, publishers and their attorneys--could use some clarity. Until then, the "fair use" doctrine will continue to have the "chilling effect" in the publishing world that the Supreme Court has tried to minimize in the other legal swamplands of free expression,
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property
Michael A. Kahn concentrates his practice in copyright, trademark, First Amendment and media law (libel, privacy rights). He is
