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The PunkLawyer Blog Zombies Archives - The PunkLawyer Blog

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Can You Register the Undead for Copyright Protection?

Friday, November 19th, 2010

Hey there interwebs, sorry for the not posting for a bit.  I’ve been keeping busy with clients, writing projects and the punk rock awesomeness of Fest 9.  Fest was amazing as always, what a great weekend of music, hangs and just great community.  Among my favorite sets were Larry and His Flask poolside at the Holiday Inn on day 1, Dear Landlord dressed as Juggalos, as well as the always entertaining Me First and the Gimme Gimmes. It was great to catch up with old friends and meet new friends.  Heard there were some amazing room shows, a secret show by Off With Their Heads, and even a lobby show by Frank Turner, a good time definitely seemed to be had by all.  Kudos to Tony and his Fest crew for another great year.

My post today is about copyright.  I was working on a column for the Scriptwriters’ Network newsletter on the subject, and used vampires and zombies to illustrate a point and thought I would share it here as well.  The copyright law makes distinctions as to what can and cannot receive copyright protection.  One such area is what are called scenes a faire, and it refers to those common elements of a theme such as characters, plots, scenes or other elements that are so indispensable to creating a work that to allow them copyright protection would make it nearly impossible to create another work on the subject.  You’ve probably noticed that when a particular trend is hot, a lot of movies and TV shows come out featuring that trend.  As of late the hot trend was and still somewhat continues to be vampires, though the new hot undead trend seems to be zombies.  Think of the common elements in zombie movies and television shows.  Your list probably includes people who have been bitten by zombies and are now undead, that also have a desire to eat brains, at night time, and attack humans to acquire said brains.  Now imagine trying to make a zombie movie or television show without those elements.  Could be pretty hard, right?  That’s the idea behind scenes a faire and similar doctrines of copyright law, is that to allow those common elements needed to make a zombie movie to be protected by copyright themselves could prevent new original works from being made using those elements.  What copyright does protect is the original expression that results from using those elements to create a work, not the elements themselves.  So the original expression that is ‘Evil Dead’ using those elements is protected by copyright law, but the idea of zombies itself would not be.

Just imagine where the show ‘True Blood’ or ‘Twilight’ books and movies would be if undead people who suck blood, have fangs, burn in sunlight (unless you’re a daywalker), sleep in coffins, and the like were all protected individually by copyright such that you would have to license all of them to create a new work using them.  It’s definitely interesting to think about.  Of course, whether an element is seen as a scene a faire or an infringement by the courts typically depends on whether the element is an expression or an idea.  The closer it is to an idea, the less likely it is to found to be protected, while the closer it is to an expression, the more likely it is to be found to be protected.  There can be instances, however, where an idea and expression are so closely intertwined that the expression can be found to not be protected under copyright because to protect the expression would prevent others from making original works using the elements that are ideas.  So in short, you can’t register the undead for copyright protection.  Hope you have a rad weekend.