Cinema Law: What Is In the Public Domain?

Q: Can you explain to me the legalities surrounding “public domain,” specifically in regards to literature?

My dream project is a reinterpretation of a classic Shakespeare story. Do I need to be granted permission to proceed with such a project?

The short answer to your question is no. You do not need to obtain permission to proceed with a project based on one of William Shakespeare’s works. However, let me talk a little about the legalities surrounding public works and copyright law.

The term “public domain” is used to describe creative works (which can include books, artwork, songs, photographs and movies) that are not protected by intellectual property laws. Literature is protected by copyright law. Copyright protection provides the author of a work with an exclusive bundle of rights, which include the right to make copies of the work, to sell or distribute the work to the public, to prepare new works based on the protected work (often called adaptations or derivative works) and to perform the work in public. Third parties are not entitled to use copyrighted works without the permission of the copyright owner. By contrast, works that are in the public domain can be freely copied, sold, distributed, adapted, performed, etc. without seeking permission or paying for the use.

Works typically enter the public domain as a result of limits in copyright protection (e.g., copyright protection may only extend for a certain number of years after the death of the author) or because the work was created prior to the existence of copyright laws. The works of William Shakespeare were created well prior to the existence of any copyright laws, and are therefore in the public domain and can be copied, sold, distributed, adapted or performed without seeking anyone’s permission or paying for the use. As a result, you are free to copy or adapt a Shakespeare story in making your movie, and then sell and distribute the movie without seeking permission. As you embark on your project, however, there are a couple of additional issues to keep in mind.

First, it is important to note that because public domain works are essentially “free” to the public, no one can obtain copyright protection for the public domain work. However, one who uses the public domain material to create a new work can obtain copyright protection for the revisions and additions to the public domain material if such revisions and additions are original and entitled to copyright protection (which they most likely will be). For instance, if you make a film based on Romeo and Juliet, you could copyright your film as it would undoubtedly include original elements aside from the public domain material. As a result of that copyright protection, no one would be able to copy, sell, distribute, adapt or perform your work without your permission. On the other hand, however, you could not prevent someone else from using the underlying public domain work to make his or her own Romeo and Juliet film.

Second, because Shakespeare’s works are in the public domain, adaptations and re-interpretations of the works have been created and most likely copyrighted. In creating your interpretation, you obviously need to respect that copyright protection and not copy or use any part of a copyrighted work.

Best of luck with your project. MM

Kristen Spanier is a partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and has experience litigating a broad range of matters in the areas of entertainment, intellectual property, employment and general business law. Consistently recognized as a Rising Star by Los Angeles Magazine, Spanier has successfully prosecuted and defended cases involving claims for trademark infringement, copyright infringement, defamation, unfair competition and contractual disputes arising in a wide range of industries. Spanier has also represented individuals and companies in fraud and contractual business disputes and has represented individuals in family law disputes. She has represented individuals including managers and directors and agencies and corporations including International Creative Management, Inc and Mattel.

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