Note: Today is Public Domain Day; the day that we celebrate new works that have entered the public domain. This year, we welcome works first registered or published in the United States in 1927. Works published during that time, that met all required formalities, enjoyed a maximum term of copyright protection of 95 years. With copyright term running to the end of the calendar year, works first published in 1927 officially enter the public domain in the U.S. on January 1, 2023.
Because public domain works are free of copyright, they may be freely copied, distributed, performed, displayed, and adapted. This blog post, by Heidi Bowles, discusses popular adaptation of public domain works.
Copyright in Derivative Works
Copyright provides authors with a bundle of exclusive rights in their creative works, one of which is to create—or authorize others to create—adaptations of their work. When a work enters the public domain, it becomes free for creators to adapt without worrying about seeking permission, paying royalties, or meeting an exception under copyright law. The lack of copyright restrictions makes it easier for authors to use public domain works for their adaptations. It is important to note that copyright terms can vary from country to country, so materials that are in the public domain in one country may still be protected by copyright in another.
Derivative works, in terms of copyright, are any works that are based on preexisting material.[1] When an author creates a derivative work, they only own the copyright in their new creative expressions (assuming that they used the work lawfully—any unlawful use of copyrighted material is not protected by copyright). Authors of derivative works do not have any copyright in the underlying work or in the elements of their new work that they took from it.[2] For a list of common types of derivative works, see the U.S. Copyright Office’s Circular on Derivative Works and Compilations.
Take, for example, Kenneth Branagh’s delightful and faithful 1993 movie adaptation of William Shakespeare’s play Much Ado About Nothing. This film used Shakespeare’s original dialogue and setting, which is in the public domain. No adaptation can create a new copyright in the original work. There is, however, a new copyright in the typesetting of the script and recording of the performed dialogue, which could make distributing a copy of the script or film a copyright infringement. However, because the elements taken from the original work remain free from copyright, anyone is free to transcribe Shakespeare’s original dialogue from the movie and distribute it without worrying about copyright.
Less faithful works have more independent and copyrightable elements, like Disney’s 1994 animated movie The Lion King, adapted from Shakespeare’s play Hamlet. In a loose adaptation like this, it is more complicated to determine which elements are public domain and which belong to Disney, but essentially, the copyrightable elements taken directly from Hamlet remain public domain, while the new original elements added by Disney are protected by copyright.
Copyright does not protect ideas or concepts, only their tangible, fixed expression. It can be helpful to consider which elements of a story could be copyrightable:[3]
Not copyrightable:
- Scènes à faire (elements that are customary or obligatory for a genre)
- General themes
- Overall plot
- Names, titles, slogans, short phrases, and catch phrases
Copyrightable:
- The specific expression of scènes à faire, an idea, theme, or overall plot
- Characters
- Dialogue
- A recording of the performance
Therefore, Disney does not have an exclusive right in Hamlet retellings with an animated animal cast, but they do have an exclusive right in the particular way that they did it.
The iconic scene where Scar kills Mufasa is a good example to look at. Disney does not have a copyright in the idea of the king being killed by his brother so the brother can take his place, which was taken from Hamlet (neither would Shakespeare, for the record, if there had been copyright laws in 1600—fratricide is a common and intangible idea and therefore not copyrightable). They also would not likely have a copyright to Scar’s final words to his brother, “Long live the king,” even if they were original to them, because as a short phrase it is not likely substantial enough to be copyrightable. They do, however, have a copyright in other specific elements that they used to express this plot point—Scar holding Mufasa up by his claws, sneering, and dramatically letting go so that Mufasa falls off the cliff into a stampede blow. This specific and original expression of fratricide is what is copyrightable, not its use in the story.
Fair Use
Public domain materials are not the only available option for creating derivative works without the rightsholder’s permission. There are exceptions in the law that allow copyrighted works to be transformed without paying royalties or asking permission from the copyright owner.
The fair use doctrine allows for the use of copyrighted works in certain circumstances, which is determined using a four-factor test that considers the purpose of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect of the use on the market for the copyrighted work. Fair use is purposely vague to avoid unnecessarily limiting the use of copyrighted materials, but this vagueness could also result in uncertainty about whether a use is a fair use or an infringement until it is challenged in court.
So, while there are certainly many derivative works that are considered fair use, the lack of certainty with the fair use doctrine could mean that some creators would prefer the option of using public domain materials when creating derivative works.
Other Examples Based on Public Domain Works
DISCLAIMER: this list is nowhere near comprehensive and is heavily biased in favor of my personal tastes
Shakespeare’s plays have been frequently adapted. A musical adaptation of one of his best-known plays, Romeo and Juliet, gave us one of the most recognizable love themes in modern American culture (Tchaikovsky’s “Romeo and Juliet Fantasy Overture” TH. 42, which itself is in the public domain and used in many movies and TV shows). Some other notable adaptations of Romeo and Juliet include:
- West Side Story (1957, 1961, and 2021)
- Gnomeo and Juliet (2011)
- The Lion King II: Simba’s Pride (1998)
Other popular movies adapted from Shakespeare’s plays include 10 Things I Hate About You (1999; Taming of the Shrew), She’s the Man (2006; Twelfth Night), and Ophelia (2018; Hamlet).
Jane Austen’s classic novel, Pride and Prejudice, is another frequently adapted story. Some recognizable works adapted from Pride and Prejudice include:
- The Lizzie Bennet Diaries (2012)
- Fire Island (2022)
- Pride and Prejudice and Zombies (2016)
- Bride and Prejudice (2004)
- Bridget Jones’s Diary (2001).
Other Notable Movies and TV Shows:
- Clueless (1995; Jane Austen’s Emma)
- Monty Python and the Holy Grail (1975; legend of King Arthur)
- O Brother, Where Art Thou? (2000; Homer’s The Odyssey)
- Anne With an E (2017-2019; Lucy Maud Montgomery’s Anne of Green Gables)
- Treasure Planet (2002; Robert Louis Stevenson’s Treasure Island)
- Shrek the Third (2007; legend of King Arthur)
For more information on when a work becomes public domain, see Copyright Term and the Public Domain from Cornell Libraries. For a discussion of what is fair game and what is infringement in similar stories, see Protecting Your Stories by Mark Litwak.
Have any questions? Contact Copyright Services at libcopyright@osu.edu.
This post is authored by Heidi Bowles, current student at the UC Davis School of Law and former research assistant at Ohio State University Libraries’ Copyright Services.
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[1] “Derivative work” is defined in 17 U.S.C. § 101 as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”
[3] For more information on the scope of copyright, see the Copyright Office’s Circular on Works Not Protected by Copyright.
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