Reader question - Can I re-adapt something that's in the public domain?

I got an email from Tim entitled "Writing for Existing Properties, Sort of."

Trust me, I know. I know I can't write the next Pirates of the Caribbean to get in on all that cash, or Transformers, or even Die Hard 5: Live Free or Die Harderer.

My question is about King Kong. I, of course, have a brilliant idea for a King Kong sequel/reboot/reimagning/prequel. I thought that based on the 2005 Peter Jackson version the copyright was owned, however according to the ever-reliable wikipedia:

"MCA/Universal attempted to sue Nintendo for copyright infringement in Universal City Studios, Inc. v. Nintendo Co., Ltd., claiming that the game infringed its copyright for the film. However, they lost and had to pay Nintendo $1.8 million in damages when it was discovered that King Kong was in fact in the public domain at that time and that MCA/Universal knew this when they filed the lawsuit. They did not own the copyright to King Kong and had not trademarked the name "King Kong". They had even argued in the past that the name "King Kong" was in the public domain in Universal City Studios, Inc. v. RKO General Inc., et al."

So here's my question: can a property be deemed "in the public doman" still be property of a studio? I understand that Universal owns the 2005 version and all the likenesses, blah blah blah, but does that preclude me from writing ANOTHER King Kong movie based on the above ruling?

As Scott Myers always says in a prelude to answers of this nature, "I'm not a lawyer. I don't play one on TV." Bear that in mind as I answer.

As I understand it, if something is in the public domain, nothing should preclude you from writing your own version of it - so long as your adaptation sources only the original material. As an example of this, I recall the creators of Cruel Intentions noting on the DVD commentary track noting how careful they had to be during their rewrites. Cruel Intentions was an updating and adaptation of the novel Les Liaisons dangereuses, which had previously been adapted as Dangerous Liasons. (Les Liaisons dangereuses was in the public domain, while Dangerous Liasons was not.)

I ran across this a few years back when I wrote a spec script that was a sequel to The Wizard of Oz. My notion was that it would be a sequel to the books rather than the 1939 film - a conceit that I felt not only offered more interesting story paths, but also precluded the need to secure the rights to MGM's classic film. After all, the original novel is in the public domain - which is also why you see so many Oz properties floating around out there.

[Side note - when I queried with this, I was a little dismayed at how many agents were ignorant of the fact Oz was in the public domain. This was especially surprising since it was my bad luck to start pushing this script just as a wave of Oz projects was making its way through Hollywood, effectively killing the market for my take.]

So my advice is to research the source material thoroughly and make note of precisely what's in the public domain and what might still be under copyright laws.

Reader mail: Public domain and Is there still a place for romantic comedies?

Jordan asks:

I recently came across a public domain superhero that has not been used in mainstream media for quite some time that I would be interested in reviving in some form. Before I start on the script, though, I would like to ask if any good can come from pitching a public domain story. I don't have to pay any options and neither does a studio. If the studio wanted, they could take a look at the project, decide to pursue it, and then then dump me in favor of another writer. I know you talked about how writing a parody script is essentially useless, so could the same be said for a public domain property?

I am also working on a spec at the moment, so could it be beneficial to show them original material if they are interested in the project?

I tend to think there's nothing wrong with mining the public domain, so long as you keep a few things in mind. In the case of a superhero, it's probably most useful if the character in question is familiar enough to audiences to have some branding value. If it's EXTREMELY obscure, there might be a benefit to writing it up as a completely original spec rather than a public domain adaptation. (On the other hand, adaptations have been hot for a while - but mostly in cases when there's some name recognition value.)

The most important thing: make absolutely sure that the character you're dealing with is in the public domain. There have been so many copyright extensions over the years that there's always a chance that character is still owned by someone. Disney has been very good about lobbying to extend copyright protection because they NEED to maintain ownership of Mickey Mouse, who first appeared in the 1920s. Superman didn't come along until 1938, and as he hasn't fallen into the public domain yet, I'm unsure if any other superheroes have. (Though I suppose it's possible assuming the owner had no interest in maintaining their rights.)

As a friend reminded me in this post, the public domain isn't always cut and dried.

As for the studio stealing your idea, well... that's the risk of working with characters you don't own. However, if they were blown away by your take, it's going to be a hell of a lot easier to just buy your script and put you to work instead of hiring another writer to come in and do it on assignment. (Think about it, as a newbie, you're going to be cheaper, even if they eventually boot you off the project and hire another writer for rewrites.)

As for original material, I'd say it can't hurt you, so long as it's as solid as your adapted material. Heck, my strategy might be to use the adaptation to get the meeting and the contacts, then see if there's anyway to capitalize on that to sell your original script. Don't go into any such meetings pushing both scripts, but be on the lookout to mention that you're wrapping up a new script. If they express interest in anything else you've written, don't be shy about mentioning the new one.

Romantic at Heart asks:

With the foul stench of Bromance in the air, is there even a place for traditional male/female romantic comedy anymore? And if you do take the time to write one, does it have to be jaded and sarcasm laden, or is there still room for a "Sweet Home Alabama?"

A manager I used to know once referred to romantic comedies as "perennials." At least, in this manager's estimation, romantic comedies would never go completely out of style. I'd like to think there's still room for a rom-com that isn't jaded and sarcastic. A rom-com with a great concept and enjoyable characters will always sell.

Working in the public domain

A friend of mine - let's call him "Reign of F-ing Genius" - sent me an email weighing in on my post yesterday regarding using characters in the public domain:

Sadly, I am here to report that public domain is not nearly so clear cut when it comes to characters that have been adapted into film. The specific example I'm thinking of is the Invisible Man. H.G. Wells has been dead long enough that the character is technically in the public domain. Alan Moore put him to excellent use as a member of the League of Extraordinary Gentlemen. However, Universal still holds exclusive film rights for the property. So, when Fox adapted League into film, they legally could not use the same character from the book. So, in the film version, he's not THE Invisible Man, he's just AN invisible man. He's got a different name and the movie avoids specific references to his past. In this case, the change made as much difference to the final product as a leper catching a bad case of sniffles, but it goes to show that once a corporate entity has gotten its mitts on an existing character, the ownership issue becomes significantly more complicated.

Just something to keep in mind. I admit I'm not a lawyer, so do your homework when playing with characters of legally dubious status.

Reader mail - animated sequel specs

Again I have to apologize for the scarcity of postings lately. Real life has been keeping me busy. How about some reader mail?

I got this email last week from a reader named Martin:

I just completed an animated screenplay based on a character from a Disney animated movie, [REDACTED]. I’m a father of three kids that loved the movie just like countless kids throughout the world that went to see the movie at the theatre and now continue to view it today in the privacy of their homes. My son, in particular, loved the character [REDACTED] and wished there were more stories related to that character. I agreed whole hardily and one day began to write down some thoughts that ultimately, years later, turned into a full blown script.

It started as just a hobby and although now completed, I just assume keep it on my hard drive and look to it as a completed personal masterpiece; quite an accomplishment. However, I have dreams of the story being developed into a film to see how the story jumps off the page and how it would look on the screen. I understand the truth behind animated films and the in house development of these films by Disney, Pixar and Dreamworks. I was considering sending a few Query Letters out just to gauge interest, but after reading your brief article, “Writing Animated Specs”, perhaps I should just keep it to myself and enjoy it with my family. I just wanted to get your thoughts and see if you had any additional insight.

First, considering you wrote a sequel to an existing movie, I'll direct you to my thoughts on the practice in this post.

However, in the event that the character you're working with happens to be in the public domain, the problem might be less restrictive. No one owns those characters, so those "toys" are available. A really good example of this would be, Wicked, the book and Broadway production that focuses of the life of the Wicked Witch of the West from The Wizard of Oz. The novel The Wizard of Oz (but not the movie) is in the public domain, so anyone can do anything with those characters. In that case, using characters with an existing following and name recognition can be a benefit. Studios are cranking out remakes like nobody's business, and there's always room for a new take on an old story, especially if it's high concept. When you think about it, isn't it strange that no one asked, "What if Peter Pan grew up?" before Steven Spielberg explored that question in Hook?

However, if your fairy tale character isn't in the public domain, you're screwed. If you're writing this to be a sequel to an existing animated film, you're probably also screwed. The odds of a first time writer selling an animated script are extremely long. If you were a guy thinking about starting a script, I'd tell you to invest your time on something else.

But at this point, the script is written, so you might as well make some use of it, right?

My advice: rewrite the story so it doesn't necessarily have to be an animated film. Then, rewrite it so that there's some wiggle room for it to be taken as less of a direct sequel to the original film. In the same way that Hook isn't a direct follow-up on Disney's Peter Pan, your script need not be beholden to the original story. (Though in the case of this specific story and character, I have to admit I'm unsure if the lead of your script exists in the original tale and is in the public domain. Double-check this fact.)

Then, get to work on your second script. Have a strong treatment, and possibly a few other pitches. A realistic best case scenario is that people might like your animated spec, but feel like it's either not for them or that there's nothing that they can do with it. However, if the quality of your writing and your imagination impresses them, they might very well as, "What else you got?"

Make sure you have a good answer for them. My gut feeling is that you're not going to sell this first script, but it might be enough to open the door for another, more marketable spec.

Good luck.