Copyright Horror Stories: From Crystal Lake to Dancing Zombies #115

Frankenstein, Dracula, Zombies, and Jason Voorhees share more than just horror fame. In a special Halloween episode, the Screen Lawyer Podcast delves into the intricate web of copyright law that has significantly influenced the existence (and potential future use) of these iconic movie characters. 

Original Theme Song composed by Brent Johnson of Coolfire Studios.
Podcast sponsored by Capes Sokol.

Learn more about THE SCREEN LAWYER™ TheScreenLawyer.com.

Follow THE SCREEN LAWYER™ on social media:

Facebook: https://www.facebook.com/TheScreenLawyer
YouTube: https://www.youtube.com/@TheScreenLawyer
Twitter: https://twitter.com/TheScreenLawyer
Instagram: https://instagram.com/TheScreenLawyer

The Screen Lawyer’s hair by Shelby Rippy, Idle Hands Grooming Company.

Transcript

0:00

On this week's episode of The Screen Lawyer Podcast. Sorry I had to do the voice, but you know, I'm wearing this Jason mask from Friday the 13th, and it occurred to me, I've never heard him speak, so I don't know really what he sounds like. But what I do know is that he is one of a number of very famous horror movie characters who are embroiled in their own copyright horror stories. We're going to spend some time on this episode“knifing” into those issues. I hope you'll join us. Hey there. Welcome to the Screen Lawyer podcast. I'm Pete Salsich, The Screen Lawyer. And why am I pointing this knife at me today? And why do we have this mask of Jason from Friday the 13th hanging around? Well, because it's almost Halloween and we're going to have a little fun, a little diversion here on the podcast, talking about some very famous horror movies and in particular some very famous characters inside those horror movies who themselves were part of what you might call a copyright horror story in each instance where the original copyright owner maybe lost a little control over that character they created because of the nuances of copyright law, both in the U.S. and overseas. It's pretty cool. And it starts with and there's there's many, many of these stories. But I wanted to pick a few super famous one because I just think these are awesome. This is something we geek out a little bit here at The Screen Lawyer. So let's start with Frankenstein, maybe one of the most famous, you know, monster characters of all. Everybody knows Frankenstein. And of course, it's become very much part of our popular culture and lore and frankly, has been in the public domain for many, many years. Mary Shelley wrote her novel in 1818. So by the turn of last century, it was in the public domain. Anyone could tell the story of the mad scientist creating a monster. And, you know, you think of the image of villagers with pitchforks and torches. All of that kind of came out of that story, all of which is in the public domain. But in 1931, Universal Studios decided to make the first Frankenstein movie. And what it did created its own copyright protection, even out of a public domain source. So when Mary Shelley wrote her story, her Frankenstein monster was depicted as being eight feet tall, yellow skin, black hair and pale, watery eyes. Okay. So if that character depiction was in her original story and the original story in its entirety was in the public domain, well then anybody, she could use a character fitting those descriptions in that role. But Universal did something different. It created a new visual image of the Frankenstein monster that we all now know and recognize. Green skin instead of yellow. A flattop had a big scar on the forehead. The bolts in his neck, and the whole protruding forehead in and of itself. Those five distinct characteristics created literally a new derivative work in just the character, not the name of the character Frankenstein's monster. None of those, just the visual depiction. But that depiction became so famous in multiple additional movies and so forth. And Universal has been particularly aggressive in enforcing those rights. You know, I should have done a little research for this to see how Herman Munster got it onto the screen. But something tells me that was licensed with Universal Studios because they controlled that image of the monster. So hold that thought, because it's that character that is the copyright in the character itself that makes these other stories pretty interesting. So if you think about - and let’s step back a little bit. How can a character have independent copyright? Well, you know, sometimes it's kind of obvious that character that appears in a in a movie or a novel for the first time, that's really a distinct character with a particular story arc, perhaps. And, you know, but but you can't copyright the old man who knows everything, who helps the young hero. You know, those are sort of standard characters tropes that anybody can use. And all you really get to protect is your particular version of those things. But in the comic book world, and you can imagine this, you know, in the Marvel Cinematic Universe, for example, and DC Comics and pretty much anywhere else in the comic book world, characters, their powers, their back story, their uniforms, their, you know, the whole costume array - all of the things that they are depicted with are themselves unique characteristics that can be owned. And we see that when characters move from one storyline to another, one universe to another, one reboot to another, or they become action figures or they appear in movies. So the characters themselves take on a life. And I was involved in a lawsuit years ago in which one of the issues was whether particular characters were fully developed enough to get this kind of independent ownership. And DC Comics used to have a... Maybe they still do, but they, in their standard writer and artist agreements, the writers and the artists who worked on the DC Comics were all doing it as work for hire. The whole copyright was going to DC, but they had this concept called character equity. And so if a particular writer or artist created a character and there were four distinct points in the contract and they had to do with are the powers unique whether costume back story, the types of things that we talked about before, Some element of those four different types of characteristics was unique and new or combined in a new way. And if the character that was created satisfied those requirements, then the author or the artist, whoever created it, while they didn't own the copyright in the character they received, Character equity was called, and essentially it was a percentage of future revenues. So if that character left this issue and went into a new series or had a spinoff or was licensed to be an action figure or appear in a movie. Any of those things that would generate new income from the character itself. That creator got some of that money. So the concept of characters having their own copyright life is pretty well-established. So that's the Frankenstein version from Universal Studios in 1931. Well, right around the same time that Universal Studios was doing this, and another probably the if not second most, maybe they're both tied for first Dracula is just as famous as Frankenstein. And it certainly I have always kind of conceived of Frankenstein and Dracula as sort of being the the foundation for all character pillars, the foundational novels from the early 1800s to the late 1800s to sort of establish what we now sort of accept as monsters and vampires and so forth. Well, Bram Stoker's Dracula was published in 1897, and Bram Stoker's a British citizen, so his copyright was originally a UK copyright, But a few years earlier in that the U.S. had, through what was called the Chase Act, had extended copyright protection to British citizens so Bram Stoker could get U.S. copyright protection for Dracula. Well, but US copyright law at the time required that two copies of the original be placed in deposit at the Copyright Office. Copyright Office today still has deposit requirements. Many of them are now satisfied digitally, of course, but at the time you had to have two copies of the original on deposit. Well, apparently Bram Stoker never quite got around to satisfying that requirement, and it didn't really become an issue until about 25 years later when a German film called Nosferatu - a silent movie 1922, which was fairly straightforwardly based on the Dracula story, it has a visual picture, and if you've ever seen it, it's black and white film. You would instantly recognize the character. He's not glamorous at all. It's much more of the true monster that is really what we think of when we see Nosferatu now. But there's no question it was, you know, essentially an infringement of Dracula. And when it was first tried to be released in Germany, Stoker's estate sued, German courts agreed, said it was copyright infringement and ordered all copies of the film destroyed. And that should have been it. But apparently one copy made it to the U.S.. I don't know how, you know, piracy back then wasn't online. It probably literally had to get in a boat and travel, but it made it to the U.S. And because Bram Stoker had never satisfied the deposit requirements in the US, Bram Stoker's Dracula was actually in the public domain in the United States. So Nosferatu could not infringe it in the United States. And that's why today you can still watch Nosferatu all these years, 100 years later. Now, because of Bram Stoker's failure to deposit things at the Copyright office, his own little copyright horror story, because they clearly were trying to keep Nosferatu from ever appearing and did so successfully in the German courts. So reminder that, you know, while copyright law is generally very similar throughout the world and we have the Berne Convention, we have treaties where many, many other countries will enforce each other's copyright laws. Those laws are not the same in every country, and you do have to pay attention. And that leads us brings us up to another really famous type of monster, the zombie. Right? So if it's pictured a zombie, what do we think of now? What is our visual? You know, and we have so many examples. It's that slow moving. They're reanimated corpses, they're flesh eaters, and they just plod along like that. And if the, you know, they turn their victims into new ones and that whole visual depiction, what a zombie looks like visually represents the characteristics, their powers back to the comic book world. All of those things that we now just assume are zombies. And they show up in Michael Jackson's Thriller and Shaun of the Dead, Walking Dead and tons of other movies. Well, that first appeared as a unique type of characteristic of zombies in 1968 in George Romero's very famous film, Night of the Living Dead. So why doesn't George Romero own the copyright in that type of a zombie? He should! Under the law, we've just talked about under all of the rules applicable to character copyrights, that was the first time a unique set of depictions, visual characteristics, powers were all contained in a type of character, the zombie. But back in 1968, still operating under what was then the 1909 Copyright Act. One of the requirements to achieve to to receive a copyright, to have copyright ownership and therefore the ability to enforce it was you had to put a notice on your work. You had to have that circle C copyright, and, you know, think of all the old movies you see. It was always on the title page, usually with Roman numbers, Roman numerals, you know, to say whatever year it is. And I always like to kind of pause and go, Let's see MC, you know, But it was a copyright notice. It was on the title page, and that was standard practice and that was expected. But if it wasn't there, there was no copyright. Well, when George Romero and his producers were producing Night of the Living Dead, it, for most of its life had a different title. It was Night of the Flesh Eaters. And so they'd finished the film. They had everything. They had the title card with Night of the Flesh Eaters. It had the copyright notice. Everything right would have been George Romero zombies. Everybody would have to pay him to depict zombies that way. But the producers and I don't really know if George was part of this or not, but the producers decided at the last minute to change the title from Night of the Flesh Eaters to Night of the Living Dead awesome title, Legendary. But they forgot to put the copyright notice on the new title card. And so the moment that was shown in public that movie and the characterization of zombies in this unique way went instantly into the public domain, no copyright protection. So anybody could tell that basic story. Anybody can have zombies that are flesh eaters reanimated corpses move slowly, all sorts of other things. And it is, I think maybe the most horrific copyright horror story because it would have been so easy to correct to just do it right. And then you would literally have this licensing empire if zombies were created this way. I suspect that actually what we would all think of as zombies would be something else, because the next creators probably wouldn't have paid to license that same character. Who knows? The reality is, though, it's everywhere. And what's interesting, remember how Universal Studios was able to essentially pull a monster from the public domain and create its own new version and get copyright protection for its new version of the monster? Well, when Michael Jackson had the zombies that anybody can have, but they were dancing in his video for Thriller, well, he actually has copyright protection in dancing zombies, of all things. And so when zombies dance. And so there have been, you know, lots of tributes to Thriller, lots of attempts to do Thriller theme parks and all sorts of different things. And all of those require a license for Michael Jackson or Michael Jackson's estate to license the dancing zombies, even though the zombies themselves are in the public domain. So fascinating little tale of zombies. And I feel bad for George Romero because zombies are literally everywhere and he's gets none of what he created. That's a bummer. And that brings us back to the guy we know from this mask over here to the right, the Jason, the the hockey mask. Right. The character that first appeared, although without the mask and this is important in Friday the 13th, the very first movie, really almost at the at the beginning of the slasher film. Right? It followed Halloween had come out a year or two before and blown up. So people like, oh, we got to do something like that, you know, But instead of sort of the, you know, roaming the neighborhood, let's put the kids, the camp counselors out of at a camp. Right? And we'll have a slasher film. It's become an extremely common setup and nobody could own the idea for that setup. But the characters you can. So when the first movie came together, a guy by the name of Victor Miller, who was a registered WGA writer, had teamed up with a guy named Sean Cunningham, who was a producer, and Cunningham reached out to Miller and employed him to write a script, a screenplay for this movie, and they did it by signing the standard WGA agreement. And, you know, just in the last episode of the podcast, we talked about the latest version of the WGA agreement. Well, this one was the one that was in place back then, and it was governed by the 1909 Copyright Act. To the extent there were any overlapping issues, we were dealing with that version of the Copyright Act, not the one we have today. So in that first agreement, it just has the language employed Miller to write a complete and finished screenplay. It does say the word employed in that agreement. Well, that became a key issue 35 years later, because after that movie came out and then subsequent multiple other movies, that's a huge franchise. And Miller only wrote the first one. He didn't do any of the other ones. So it's just his rights in this first one. Well, when the Copyright Act was amended in 1976 Act, it added this provision to allow any works that had been assigned from one party to another. Could be that assignment could be revoked. 35 years later, you have to file a notice proceeding and go through this process, but you can get your characters back. And it really was designed to reach back into the early years, largely in sort of the comic book world, the music world and other arts, where a lot of creative people were pretty much exploited. They were paid a pittance. They created these characters that went on to have huge lives and make huge dollars for the producers, and they didn't get anything. So the thought was, Let's build in a mechanism. And under these circumstances, to allow these creators to get those rights back. And more often than not, it's the estate of that writer, because the writer’s dead, but they're like, wait a second, you know, Grandpa wrote this thing. It's made everybody gazillions of dollars. We ought to get some of that, too. And that was the intention. So it was under that provision of the new Copyright Act that Victor Miller, at the end of 35 years served notice on the company that had purchased all the rights to the films that he wanted his copyright back for the first film. And of course, the studio sued immediately for a declaratory judgment to say, No, this was a work for hire. There never was any assignment. And it's important. Recognizing that difference. This right to reclaim your assigned copyright only exists if it was assigned by you in the first place. If it was a work for hire and we've talked about this in the past, the unique thing about a work for hire is there's never an instant in which the creator owns it and then gives it to the company that hired him is for purposes of copyright law. It is considered owned at the moment of creation by the company that is hiring the creator. So there's no assignment. It never traveled. It's always been there. So there is no this provision that says give it back to me after 35 years is simply not relevant to works for hire. Well, now, I don't think we're going to have those issues that come up 35 years in the future, because since the 1976 Copyright Act, work for hire has been expressly described and defined. It must be an employee within the scope of their employment and under particular employment laws, or it must be a written work for hire agreement for an independent contractor. But that language wasn't in the 1909 Copyright Act, so the court couldn't draw on that and ruling on whether Miller would get his Friday the 13th back. And ultimately it said that when we look at for copyright purposes, we don't look at the language that the WGA contract or the National Labor Relations Board union governing uses for that term, that's that's what that means. Things in their world. We're looking at what we apply in the copyright law. We just go to this standard 13 factor test and it has to do with control and ability to do this and a whole bunch of factors. And under that test, the court ruled that no, Victor Miller was an independent contractor, not an employee. Therefore, when the rights went from him to Sean Cunningham and eventually the producers, it was in the form of an assignm So now Victor Miller or his estate owns the copyright in the first story, so they can do whatever they want with that first story. But what about Jason? Well, if you remember the first movie, Jason isn't the killer. It's Jason's mother. Sorry if I just spoiled that for you. If you haven't seen Friday the 13th, I recommend going to check it out. It's still worth it. Even if you know that the original Jump Scare movie. But Jason isn't really in the story until the very, very end when you learn that it was the boy who was thought to have drowned because the counselors had neglected him and that's why the mother was taking revenge against the counselors, etc.. And he comes out of the water in that last scene and grabs the girl in the polls, her under. And that's Jason. Well, but Jason wasn't wearing a mask in that movie. So now the mask and that whole Jason Voorhees and that whole character was created not by Miller, the original, but by the filmmakers who came after that and the ownership of all of the films after that are unified in one now different than the original creator, but one entity. And so who owns Jason? Can Victor Miller's family, or can that copyright owner do a new story, including Jason? I would think so. Certainly the back story, who he was. Interestingly enough, there is a new series coming out right now called Crystal Lake, and it's it's essentially the back story and all of the counselors. And it's going to be really interesting to see how all this pulls together. But the character of Jason, just like Universal Studios, Frankenstein with the bolts in his neck and the green skin and the flattop head, well, this face mask is notorious, is so instantly recognizable it I don't know what the stats would really say, but I would venture to guess it's probably one of the most purchased Halloween costumes year after year after year because it is so well known and we've had however many movies ever. Now there's reboots, there's this TV series, it's got it truly has a zombie life of its own. And I think Victor Miller can't put Jason in a in a face mask. Maybe he can hint at something that led to that. Maybe he can do his own competing things. But it's one of those horror stories in a way that he got something back. But did he get enough to really be valuable? I don't know. And, you know, sometimes these things end up being, you know, some new producer that wants to combine some of the first story and some of the laters might end up doing some sort of licensing structure with everybody involved so that they can tell the complete Friday the 13th story and have the rights from all of the various copyright owners. Going to be interesting to see. But as this Halloween nears, I hope you've taken away something important here. Be very, very afraid of the Copyright Office and call the screen lawyer if you have questions. Sorry for that. You know, don't be afraid of the Copyright Office, because that's actually exactly what we normally say. Don't be afraid of the Copyright Office. But understand, it's got its own little unique way that it works, just as in a horror movie or in a comic book universe or whatever. The worldbuilding works in a certain way. It's got a certain set of rules, and if zombies can only be slow moving, flesh eating, reanimated corpses because those are the rules for zombies, well then the copyright law can only deal with written agreements and work for hire language, or else it doesn't work for you either. That's the message. Happy Halloween. Be careful out there. Get a good hockey mask and have fun. And if you like this, come back next week. Find us and follow us wherever you get your podcasts. And if you're watching on YouTube and you like that picture of me in the Mask, hit that like and subscribe button and you'll get all of the content from The Screen Lawyer. Take care. Should I do the voice thing in the beginning or not? It was pretty funny. All right, Am I ready to And I just go, okay, I'm going to go. All right.