Writing Blog Number 2

20240324 Public Domain

Public Domain

This is something that came up recently and I think I should have mentioned it in my fan fiction columns. What happens when a character enters public domain?

First, to explain: a work falls into public domain 70 years after the author or creator has died, or 95 years after a film or piece of music was released. What this means is that the original characters become free to use in any way someone else sees fit.

If another company has bought the rights to a character or film, and remakes it or re-imagines it, it becomes awkward, but the characters fall into public domain, though the events of the new work do not. If the new work retells the original, then whether the original work is in the public domain or not is still being tested in courts of law.

Confusing? Yeah. So let me try to explain.

Let’s say we have a character named Captain Quokka. He was invented by obscure Australian writer Frederick Fisher in 1934 in a series of books about the titular character’s adventures with the evil Penguins of Paraguay. Fisher died in 1953. This means that, as of January 1st, 2024, 70 years after his death, Captain Quokka and the Penguins of Paraguay all enter the public domain. Anyone can now use these characters.

However, in 1967, the Dalt Wisney Corporation bought the rights to Captain Quokka and made an animated film. This film features the Captain in a long red cape and green mask, which was not in the original books, and Penguins of Paraguay are named Percy, Perry and Pushy, also not in the original books. These images have since become the depiction most people associate with these characters.

This means the characters can appear in your story set in New York’s East Chicago District, but the Penguins cannot have those names, and the Captain cannot be wearing the garb he has become so associated with, as they were subsequently added and invented by someone else.

You have access to the originals, not the extras added later by copyright holders.

This can be seen in the recent shift of Winnie the Pooh to public domain. Nothing like the adventures written solely by Walt Disney can be used, just the things from Milne’s original books. That is why we got Winnie The Pooh: Blood And Honey. That is transgressive enough to not upset any subsequent copyright claims while still using the public domain characters.

It is also why we can write stories about the Little Mermaid, so long as we do not include anything created purely for the Disney film – the character is in the public domain.

Now, when it comes to real, historic people as characters, if they are dead and led a public life, they can be included in a story. Anyone can write about Pocahontas, for example, but if you include the things Disney made up (talking to the wind, being a teenager), they can get you because they invented those things for their story; however the relationship with John Smith was created after Pocahontas’ death (it never happened), so that is also public domain. Further, any historical event is fair game, so long as you do not steal alternate ideas from other works.

If a person is alive, they are technically fair game, so long as you do not libel/slander them. However, some may be lawyer happy, so be careful. It is recommended you change names, but make things seem obvious who they really are. Or ask the person… as Ben Elton did with (then) Prince Charles in the book Chart Throb.

Now, using public domain characters is a form of fan fiction, but it is one which is perfectly fine and, unlike other forms, actually sellable. I have sold stories about Tabu, for example.

Hope that was not too confusing!