ALTERNATE ROUTES: Screenwriting Using the Public Domain

With Hollywood's love of adapting intellectual property, Marty Lang discusses the hundreds of years worth of stories that anyone can use without paying a dime. They live in what's called the public domain.

Marty Lang is a screenwriter, filmmaker, journalist and educator. His feature writing/directing debut, RISING STAR, was acquired for worldwide distribution by Content Film in 2013. His producing credits include the 2016 Independent Spirit Award-nominated OUT OF MY HAND, and BEING MICHAEL MADSEN, starring Michael Madsen, Virginia Madsen and Daryl Hannah. Twitter: @marty_lang.

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The world of film and television screenwriting is inundated with intellectual property. The current wave of superhero movies all stem from comic books. Video games have been turned into films for years. Some of the biggest television shows of this decade have been based on popular books. And the Oscars even have a special category for Best Adapted Screenplay. Some of that material is made by celebrity creators, or corporate behemoths, so the cost of the film rights to it can be huge.

But there are hundreds of years worth of stories, images, sound and video that anyone can use without paying a dime. They live in what's called the public domain, creative material that is not protected by intellectual property laws. The individual author or artist doesn't own these works anymore; the U.S. public does. If you're interested in writing a new script (and who among us isn't?), working with public domain materials can be a great way to get inspired – and maybe get your project some attention.

Script EXTRA: The Screenwriter and Public Domain

The U.S. Copyright Office states that “A work of authorship is in the 'public domain' if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” Building on that, the Stanford University Library says there are three ways that works can arrive in the public domain:

The copyright has expired – Copyright has expired for all works published in the United States before January 1, 1923. So if the work was published before then, you're free to use it in the United States without permission.

The copyright owner failed to follow copyright renewal rules – If you want to use a work published after 1922, but before 1964, you should research the records of the U.S. Copyright Office. If a work was first published before 1964, the owner had to file a renewal with the Copyright Office during the 28th year after publication. If they didn't, the work became part of the public domain.

Copyright law does not protect this type of work – Short phrases, like “Show me the money!” are not protected under copyright law. Facts or theories, like the fact that a comet will pass by Earth in 2027, are also not protected by copyright law. But the unique way a fact is expressed may be protected, such as if a filmmaker made a movie about destroying a comet with a nuclear bomb; the way they presented the fact in the movie would be protected by copyright.

Now a column on this topic can quickly turn into a law lesson; Script has a great column by entertainment attorney Christopher Schiller, that covers many legal questions related to public domain, copyright and Creative Commons. (And when it comes to using PD material, always do your own research and consult an attorney.) But if we look at the movie and TV landscape, we can see use of public domain in many instances large and small.

Script EXTRA: Legally Speaking, It Depends - What is Public Domain

For large, take a look at Disney. One could argue that their movie empire is built on great works of the past. In fact, Forbes was able to find fifty examples of Disney films based on public domain works! From great literary works like Adventures of Tom Sawyer, to multiple movies based on Grimm's Fairy Tales, and even musical works by Bach and Beethoven for the film FANTASIA. As the article says, “Much of the success of the Disney Corporation was based upon public domain books.”

There's plenty of public domain use in television as well. Ever see the NBC drama GRIMM? That show, a one hour police procedural, uses the stories of The Brothers Grimm (same as Disney) and re-imagines them as if the creatures were real, and the stories were part of a police profiler's files. A Hollywood Reporter piece on the show explained that GRIMM “follows Det. Nick Burkhardt (David Giuntoli), who finds out he’s a descendent of the Brothers Grimm and inherits their unique talents for seeing mystical creatures, and his very classically trained police partner, Lt. Hank Griffin (Russell Hornsby) as they solve tough cases and figure out each other’s quirks.”

“It is odd,” executive producer Todd Milliner says of his show’s emergence as part of the trend. “There’s a lot of movies and shows about fairy tales, but ours is so not about the fairy tale. It’s a police procedural with a hint of fairy tale.”

Public domain adaptations don't necessarily have to be from books. Many of Shakespeare's plays were turned into movies like 10 THINGS I HATE ABOUT YOU, LOVE'S LABOUR'S LOST and WARM BODIES, which turned Romeo and Juliet into a zombie and a teenager. And adaptations don't have to be made into films or television shows, either. The web series THE LIZZIE BENNET DIARIES was adapted from Jane Austen's PRIDE AND PREJUDICE, the story conveyed by vlogs, and became the first web series to win an Emmy in 2013, for Outstanding Creative Achievement in Interactive Media – Original Interactive Program.

You can even find specific distribution outlets for certain kinds of public domain works. Horror writer H.P. Lovecraft wrote over fifty horror stories, creating what he called the Cthulhu Mythos, a world filled with the characters he created. (Think Marvel's Cinematic Universe, only in print.) Lovecraft encouraged other writers to expand his Mythos, and now the H.P. Lovecraft Film Festival takes place annually in Portland, Oregon and Providence, Rhode Island, where Lovecraft lived. They screen feature films and short films inspired by Lovecraft, and they even have a screenplay competition.

And if you're really industrious, you can literally create a movie out of movies that already exist in the public domain. Hundreds of films were made before 1923, along with those created between 1922 and 1963 that didn't renew their copyright, and you can use video footage from any of them in a new movie you create. Combine that with public domain music, some crafty writing and a good editor, and you can literally create a movie without shooting anything. The online video company Pond5 has over 9,000 video clips and 2,700 audio files you can use as part of their Public Domain Project.

Thanks to the public domain, adapting popular stories isn't something reserved just for Hollywood's bigwigs. With some creativity and a little research, you can find a well-known story to use as a basis for your own work.

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