[Web4lib] Disney films based on public domain fairy tales are not derivative works

[D.H. Mattison]

July 13, 2010

 

Thanks Jean, but perhaps you could ask your friend for her thoughts on the
original point which is in the subject line: are the Disney films based on
public domain fairy tales derivative works under copyright law?

 

No one was arguing that Disney could not copyright their own original
interpretation of these public domain works, the question was whether these
Disney films (I cited the first three based on fairy tales) are considered
derivative under copyright law.

 

Thanks,

 

David Mattison

Aloha Fact and Image Finders

Victoria, BC

 <mailto:dmattison at shaw.ca> dmattison at shaw.ca

cameraworkers at gmail.com

http://www.google.com/profiles/CameraWorkers

http://davidmattison.wordpress.com

http://digitalarchivist.wordpress.com

 

From: Norma Jean Hewlett [mailto:hewlett at usfca.edu] 
Sent: July-13-10 1:57 PM
To: D.H. Mattison
Cc: web4lib at webjunction.org
Subject: Re: [Web4lib] Disney films based on public domain fairy tales are
not derivative works

 

I asked my friend Eli Edwards, who is both a librarian and a lawyer. Here is
what she told me:

1. It's not possible to copyright a public domain fairy tale. For example,
you can't copyright the basic story of Snow White & The Seven Dwarfs,
including parts of it such as her meeting seven dwarfs.

2. It IS possible to copyright any original material that your retelling
adds to the tale. For example, while you can't copyright generic dwarfs, you
definitely can copyright the characters of Dopey, Doc, Sneezey, etc. 

3. You can also copyright other original features of the work, such as the
musical score.

4. Therefore, Disney has no problem establishing copyright on their version
of Snow White. 

Jean Hewlett
University of San Francisco

On Mon, Jul 12, 2010 at 3:46 PM, D.H. Mattison <dmattison at shaw.ca> wrote:

Thanks for asking about that Alan. I'm not a lawyer nor do I have a legal
background, but I had invested a lot of time in studying copyright when I
was working in an archives.

I think the Chilling Effects Clearinghouse has used derivative in two
senses. If you look at other sources that come up through a Google search of
"define:derivative work," you'll see that, from a legal perspective, a
derivative work has to contain material that's under copyright protection.

For example, this is the Wikipedia definition:

A derivative work pertaining to copyright law, is an expressive creation
that includes major, copyright-protected elements of an original, previously
created first work.
en.wikipedia.org/wiki/Derivative_work

But you can still derive a work from a public domain source (I'm thinking of
literary works in particular), it's just that legally, IMHO, that doesn't
make any sense because copyright protection has expired. People may say,
aha, you derived that from Hamlet, but a copyright lawyer might say, so
what.

I think there are two issues at play, the question of what constitutes a
derivative work under copyright law and what kinds of works can be protected
by copyright.

My understanding is that in order for your "new" work to be considered
original and protected by your copyright, you would have to make creative
changes to the public domain work. Those mashup novels based on Jane
Austen's novels such as Pride and Prejudice and Zombies or Sense and
Sensibility and Sea Monsters are a perfect case in point.

David Mattison
Aloha Fact and Image Finders
Victoria, BC
dmattison at shaw.ca
cameraworkers at gmail.com
http://www.google.com/profiles/CameraWorkers
http://davidmattison.wordpress.com
http://digitalarchivist.wordpress.com



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