On the Legality of Reworking Public Domain Children’s Stories: Magic Bullet Q&A for Writers

Q: I would like to know if I could amalgamate two old children’s stories, which are in the Public Domain, into one new tale. The stories are Hansel & Gretel and Goldilocks & the Three Bears. I have written the story, but am not sure if it could be published.

-Hartley Hines

A: The short answer is: Yes, you can publish it. For any work in the public domain, you are free to publish it or creatively manipulate it without payment to, or permission from, the original author. Any published or distributed material on which a copyright has expired is considered to be in the public domain.

If you’re ever unsure about whether work has fallen into the public domain, you can try searching the records of the U.S. Copyright Office at www.copyright.gov/records. At the site, you’ll find excellent FAQs on determining the copyright status of a work; you can also pay a modest fee and have the office conduct a copyright search for you.

Some readers might wonder: What if the two children’s stories in question were not in the public domain? Would the author still be free to publish his story? Probably not. You may use themes from copyrighted stories, since themes cannot be copyrighted, but if you want to use another author’s characters (especially characters’ names), which are associated with a particular work in the public mind, then you’re infringing on that author’s rights.

Also: While this question doesn’t specifically ask about copyright, you should understand how copyright works so that you know your own rights and avoid infringing upon others’ rights. The first thing every writer should know about copyright is that it is effective as soon as you create a work in a tangible form. That means as soon as you commit a few lines to paper (or screen), it is protected under U.S. copyright law, even if you don’t include a copyright symbol or register the work with the copyright office.

If you do formally copyright your work through the U.S. Copyright Office, protection lasts for the rest of your life, plus seventy years after your death. (For works published prior to 1978, the term will vary depending on several complicated factors.)

When you sell various rights to your work, this does not affect your ownership of the copyright. So when a publisher publishes your book (or a magazine publishes your article), your rights should not be diminished in any way (unless you’ve agreed to work-for-hire). Even if you do sign away specific rights, the law contains termination provisions that allow you to regain rights assigned to others, after a specific period.

There have been some interesting developments on the copyright front, especially as it applies to termination rights. A U.S. district court recently backed the claims of John Steinbeck’s heirs to his classic works, who want to reclaim publishing rights from Penguin. Under the Copyright Act, heirs have the right to reclaim publishing rights during very specific time frames; the judge said that the act is "designed to protect authors of older works from having to live with a bad deal they entered into when they had little or no negotiating power." (An article in the June 19, 2006 issue of Publishers Weekly gives more detail.)

Many aspiring authors ask: Should I put in the effort and expense to register my work at the Copyright Office? In general, I advise authors not to bother. Since your work is copyrighted from the moment you create it, the existence or validity of your copyright will not be affected if you don’t register the work. You can still bring a lawsuit against anyone who infringes upon your copyright without having a formal registration, though you may not be able to collect as much in damages, and you may have a weaker case. The only situation in which you do need to worry about registration is when writing scripts. (See the Writers Guild of America at www.wga.org for more info.)

Also, keep in mind that if a publisher accepts your work for publication, a clause in most contracts between publishers and authors sets up an agreement whereby the publisher takes out the copyright in the name of the author. The publisher merely handles the paperwork (and expense) on behalf of the author, and the copyright is the author’s property. If you glance through a few books on your shelf, you’ll find that the author’s name, not the publisher’s, follows the copyright symbol.

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