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Public Domain Q&A with Entertainment Attorney Christopher Schiller

by ScreenCraft - updated on January 25, 2021

This past fall, guest contributor and entertainment attorney Christopher Schiller wrote the piece 5 Things Screenwriters Should Know About Public Domain. Since then, we have launched our True Story & Public Domain Screenwriting Competition. We decided to dive a little deeper into understanding the concept of public domain. We hope you'll find the following interview to be substantial, clarifying and inspirational. We can't wait to read what you come up with for this competition (open to TV pilots and feature film screenplays)!

As a jumping off point (and I realize this is a complex topic), how can a screenwriter tell if the material (story or character) is in the public domain? 

There is nothing that replaces hard and thorough research to be as certain as can be that something is in the public domain. Understanding what the public domain really is within your jurisdictional bounds can be tricky. And the fact that the term public domain is used by several different areas of intellectual protection (copyright, trademark, patents, etc.) makes finding the applicable information tricky. But once you understand how public domain is defined in your territory for copyright (the main concern for the readers of this) then it’s a matter of applying the rules and researching the material in question. You will need to delve into some esoteric stuff, what country the writer was born in, where they resided when they died, how long ago has it been since the writer passed away, what the rules are that applied throughout the life of the writer and the work and how they changed, whether the source material was ever published, and if so how, when and what formalities were followed that may have been required at the time.

As you can see, knowing whether a work falls in the public domain or not is not a straightforward process. It is best to seek out the assistance of those versed in ferreting out the answers and being diligent and prepared. Time and again there are people who have misused a protected work with the misunderstanding that they thought the work was in the public domain. And the penalties for those missteps can be disastrous.

Are all public and historical figures in the public domain? If yes/no, how? 

Here’s one of those misunderstandings about the public domain, what it is and what falls within it. Public domain, at least for those seeking material to base a new work upon, is an aspect of copyright. Would you ask if a public official or historical figure is copyrighted? Human beings are not part of the public domain spectrum. That doesn’t mean there aren’t other laws to protect using portrayals of them in new works. There are rights of privacy and publicity that carve out those protections. And there are exceptions to those rights for particular uses within newly created works. But those are outside of the public domain conversation.

What are the international considerations of public domain? For instance, is a work that's considered in the public domain in the United States also in the public domain in the United Kingdom?  

The short answer to your example is no. Every country has its own definitions of public domain and laws that enforce or allow exceptions to it. If you are writing a work based on a work from another country you’ll need to research not only the laws of your country but those of the country of origin. And then you’ll need to know if there are intellectual property or copyright treaties in effect between the two countries or representative state groups (e.g. EU) that would affect the application of the property being protected in an outside country similar to the country of origin. For example, any work created in the European Union countries is treated the same in each of the countries of that union. And because the US has signed conventions and treaties with the EU, those same protections would be extended within the US for those works as well. But there are also countries whose works immediately would fall into the US’s public domain because we have no treaties or agreements to protect them here. You have to do your research to know which is which and what’s changed (like, will the copyright protections still apply the same way to works from the UK once they leave the EU?)

Which are some of the most cut-and-dried examples of works in the public domain? 

There are some works that are well known to be in the public domain. The works of Shakespeare have been in the public domain for centuries. Ancient myths, fables and fairy tales from a time long told are fair game as well. But be careful with anything that you may think is available, because the application may be thorny. For example, all of Walt Disney’s animated features during his lifetime were based on old, public domain, oft-told stories, Snow White, Cinderella, etc. Just like Disney, anyone can write a new work based on these same public domain fairy tales. BUT, make sure not to incorporate something that was introduced by a more recent version of those retellings. Do an Alice in Wonderland and have Alice dressed in the distinctive light blue dress with white apron and Disney will have every right to go after you for infringing on their intellectual property. The original story didn’t have that element. It was a creation of the Disney version and therefore, they’ve got protections for the bits they added available to them. Stick to the very old origins and you’re okay. Make it seem like someone else’s more recent version and you’re no longer safe.

Which are some of the most complex examples of works ambiguously or contentiously in the public domain? 

Two examples: 1) Sherlock Holmes. According to the copyright laws of the US and UK the original stories of Sir Arthur Conan Doyle have recently fallen into the public domain. But only the original publications. Doyle continued to write new Holmes stories for many years, introducing new elements of the characters. Many of those are still protected. And other authorized adaptations invented aspects that have since come to be considered canon to the stories. If you attempt to write a new Sherlock Holmes story because you heard it was in the public domain and give him his distinctive hat and pipe you’ve gone over the line. Those came later and weren’t in the works that are in the public domain.

Example 2) The “Happy Birthday To You” song. For over 100 years music publishers have claimed copyright and gotten paid for its use every time that song was sung in movies, on TV and even in restaurants. For a long time, many legal minds were suspicious that the song had long ago fallen into the public domain. It wasn’t until very recently that a court case was finally taken to its end to determine that the song is indeed in the public domain and that anyone can sing it without having to pay for that right. The courts did not determine how long claims of copyright for a public domain song may have been taking place, but, from now on people no longer have to pay for the privilege.

Why does it seem that Hollywood studios love to make films and TV based on public domain stories or characters? 

This question goes to the heart of the schizophrenic nature of the industry. The industry wants to be new and innovative to set themselves apart and really get that breakout hit that’s different, something no one’s ever seen. But because of the high costs involved in production, they are also risk averse and know there are no guarantees that people will come to see the film once it's made and their money’s paid out. To have the best shot at making their money back they want to set off that inherent risk by every means available. Using a tried and true product with a built-in audience base is one of those ways of mitigating that risk. Familiar is safe. Familiar is also, and more importantly, able to get financed.

How can writing a screenplay based on a public domain story and/or character benefit a screenwriter who's seeking to get noticed by Hollywood professionals? 

Another two-edged sword. On the one hand, the tough part of getting new material into the hands of producers is getting them interested in reading it in the first place. That’s why getting a great pitch is key to knowing whether you can pique their interest in the shortest timespan possible. A good pitch creates the movie already starting in the producer’s head immediately. They want to see how that movie turns out because they get the concept and are curious where you will take it. Then they’ll ask for the script to see if you’re up to the challenge of delivering on that great concept.

Creating a work based on a public domain source allows the writer to ease along on the familiarity of the source. The producers are already familiar with the base story, and if you have a great twist on a new take or direction, they’re ready to give it a shot. But just because you use a public domain source doesn’t get you any closer to the thing you should be focusing on as a new writer. You need to hone your craft to be able to deliver on the promise of the new ideas you bring and the execution of the story ideas you convey. Regardless of whether you’ve written a brand new idea with a high concept pitch or brought to the table a new twist on an old, familiar story the crux for your career will be are you able to deliver on the promising premise? Are you THE writer they have to hire to deliver this story? That’s work you have to do on your own regardless of what your story is based on.


A note from ScreenCraft staff: to clarify, for you to qualify for the True Story & Public Domain Screenplay Competition, it is not necessary for you to have a perfectly defined or clear-cut public domain story or character. As long as you're reasonably confident that your screenplay is based on a work in the public domain, then it's eligible to win the competition. We will leave the finer points to the producers or executives (who may offer to option or purchase a winning script) to decide a project's legal ramifications and potential for production, and any chain of title issues to resolve.

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. He has an extensive personal history in production and screenwriting experience which benefits him in translating between “legalese” and the language of the creatives. The material he provides here is extremely general in application and therefore should never be taken as legal advice for a specific need. Always consult a knowledgeable attorney for your own legal issues. Because, legally speaking, it depends… always on the particular specifics in each case. Follow Chris on Twitter @chrisschiller, his website, and Google+. Read more of his articles here.

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