How Romeo and Juliet Can Help You Write Your Next Book

by | Oct 31, 2014

By Helen Sedwick

What do Shakespeare and Jane Austen have in common?

Their works have spawned countless remakes and retellings. Characters have been transported to New York tenements and distant dystopian planets. Stately manor houses have been transformed into zombies hideouts. Star Trek’s Klingons recite Hamlet’s soliloquies.

And since Shakespeare and Austen’s works are in the public domain, all of these remakes are legal.

Books, settings, characters, and stories in the public domain are a rich source of material for writers, as they should be. When a classic tale is retold, writers explore timeless yearnings and connect us to our past. West Side Story remains as tragic as Romeo and Juliet, and A Thousand Acres by Jane Smiley adds modern tensions to King Lear.

On the legal side, however, many writers are tentative about basing their stories on public domain works. Will they own any copyright in the work or will it remain in the public domain? The answer is a little of both.

What is in the Public Domain?

There are four major categories of public domain works.

  1. Works that are not copyrightable. Ideas and concepts alone are not protected by copyright and are in the public domain. This includes stock characters, such as the handsome but dull hero and the tough-talking villain, and generic settings, such as gritty streets or deep space expanses.
  2. Works created by U.S. government employees, for example, the famous Depression era photos taken by Dorothea Lang when she was employed by the WPA.
  3. Works donated to the public domain through a Creative Commons license.
  4. Works where the copyright has expired.
    As of today:

    • The copyright on works first published in the United States before January 1, 1923 has expired, and writers may use these works without permission.
    • Thanks to Congress passing laws to favor Disney and other corporate copyright owners, the copyright on works published on and after January 1, 1923 won’t start expiring until 2019.
    • For works published after 1977, the copyright won’t expire until 70 years after the author’s death.
    • For works published between 1923 and 1977, the expiration depends on whether a copyright notice was properly placed, whether the copyright was registered, and whether the registration was renewed. You may need a lawyer or professional copyright researcher to sort it out. The duration of copyrights for works created in different countries may be different.

For this article, I am focusing on works with expired copyrights, such as Jane Austen’s Pride and Prejudice, published in 1813.

How Many Times Can Pride and Prejudice be Retold?

Every year, publishers release dozens of books based on the story of Elizabeth Bennett, Mr. Darcy, Lady Jane and Charles Bingley. At least three films are based on the novel, not to mention a several television series. How does this work? Don’t the copyright claims conflict?

They don’t because each creator has a copyright interest only in the new material created by that creator, the rest remains in the public domain. When Helen Fielding transformed Austen’s work into Bridget Jones Diary, her new material was protected by copyright, not the underlying story lifted from Austen’s novel. When filmmakers release yet another Midsummer Night’s Dream, they own the copyright to the dialogue, costumes, sets, and all other new creations, not Shakespeare’s words.

Whether the new work lifts entire sections without change, or alters every word of the original, no one may claim an exclusive right to use Shakespeare’s or Austin’s words, characters, names, settings, or the storyline. No one can revive the copyright on Mr. Darcy or Lady Jane by casting them in a new light. The same with Dracula, King Arthur, Huckleberry Finn, and the Cheshire Cat.

A perfect example is Seth Grahame-Smith’s mash-up novel, Pride and Prejudice and Zombies. The author transported the characters, setting and storyline to an alternate world where zombies routinely devour proper ladies and gentlemen out for afternoon strolls. The book hit the New York Times Bestseller’s List and has spun off video games. A film version is in the works.

But no matter how money is invested in and made from Pride and Prejudice and Zombies, Grahame-Smith has no copyright interest in any of Austen’s original work. Writers are free to take her characters take to another time or universe. And they do.

Writers should not discount the potential of using public domain works for inspiration, characters, storylines and structure. The market for remakes seems insatiable.

How to Use Public Domain Work

Go back to the source. If you are going to base a story on a public domain work, go back to original work if possible. Don’t base your story on another writer’s retelling or the movie version, since those are likely to mix copyrighted and public domain material. If you are using a translation, do not use the specific language of the translation (which may be covered by copyright) and stick to the larger components such as the storyline and characters. Similarly, don’t use any illustrations, commentary and annotations added since 1922, since those may also be protected by copyright.

Don’t be fooled by bogus copyright notices. If you pick up a print copy of Pride and Prejudice, you are likely to see a copyright notice in the name of the publisher together with the usual statement “No part of this publication may be reproduced…” Many of these notices are bogus; the publisher cannot claim any copyright on the public domain work. It’s illegal, although no one is enforcing those laws.

A publisher has a copyright claim only in new material, such as an introduction, illustration, or commentary. To be protected by copyright, the added material must have some level of originality. Merely changing English spelling to American spelling does not create a new copyright claim. Digitizing a printed book is not a new copyrightable work.

The proper copyright notice limits the claim to the new material. For example:

  • Translation © year and name of translator;
  • Illustrations © year and name of illustrator;
  • Introduction © year and name of writer of introduction.

Use the proper copyright notice on your own work. Your copyright notice should claim rights only in your new work. There is no required form, but consider something along these lines.

© year and your name. This novel is based on The Iliad, and no copyright is claimed on any material in the public domain.

How to Register the Copyright to the Work

If you create a new work based upon public domain material, you have created what the Copyright Office calls a “Derivative Work.” You may register the copyright to a Derivative Work, similar to any other original work. Your registration is still under your name as the Author and Claimant (not Jane Austen) and the date of first publication is the date you first publish your derivative work. The Copyright Office, Circular 14, provides instructions.

Here are some of unusual remakes:

Feel free to add to this list.

Sedwick.HeadshotHelen Sedwick, is a Contributing Writer for The Book Designer. She is also an author and a California attorney with thirty years of experience representing businesses and entrepreneurs. Her latest book is Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing.

You can find more information about Helen here.

Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.
 
Photo: bigstockphoto.com. Amazon links contain my affiliate code.

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18 Comments

  1. Kathleen Goonan

    Quick question: Do you establish a new copyright in your name when you publish a public domain book? If someone else subsequently publishes that same book or excerpts from that book, do you have grounds to charge them with copyright infringement? I’m a writer, not a publisher, by the way.

    Reply
    • Helen Sedwick

      Kathleen, No you cannot create a new copyright interest in a public domain work. If you were to reprint a public domain book but add new illustrations or commentary, then you would have a copyright interest in the new illustrations and commentary, but not in any of the original public domain material. Anyone else would use the same public domain material in another book.

      Reply
  2. Tree Bartz

    If I wrote and published a novel, would I be able to put passages from Shakespeare’s Romeo and Juliet in it?

    Reply
    • Helen Sedwick

      Yes. All of Shakespeare’s original work is in the public domain and you may use as much as you’d like. It’s always a good idea to give attribution to the original creator, even when the work is in the public domain. This is not a legal requirements, but an ethical one. If you neglect to provide attribution, someone may accuse you of plagiarism.

      Reply
  3. Carolyn Egerszegi

    I am interested in using a quote from a book that, according to Wikipedia: “…will be in the public domain in the United States in 2018 although it is already in the public domain in the European Union, Canada, Russia, South Africa, and Australia.”

    If I am a Canadian writer, does this mean I can quote from this book in my novel? What if I plan to self-publish, with my book accessible to readers in the United States?

    Reply
    • Helen Sedwick

      Carolyn, How much of the original work are you quoting? If it’s a short quote of a longer work, then it may not be a copyright problem. Feel free to contact me through my website with your specific question.

      Reply
  4. Bruce Arthurs

    Here’s a question, in regard to art rather than written works:

    Can a derivative copyright be claimed on a digitized version of a work of art? I had a piece in mind for a book cover that otherwise seemed in public domain, but wanted a high-quality version to use. Found a copy of a print of the original at the MoMA website, but was surprised to see MoMA had a copyright notice in their name on it.

    Reply
    • Helen Sedwick

      Bruce, A digital copy of a public domain work does not have its own copyright. If the digital copy has been enhanced, restored, or otherwise modified, then those modifications might be protected by copyright if they encompass “sufficient original expression.”
      It may be impossible to tell from MOMA’s website whether they are claiming a copyright on the entire work or merely their digital copy. Museums have been notoriously vague about such claims.
      Here are some suggestions:
      Try to find another image to use, one that hasn’t been modified or enhanced by someone claiming a copyright.
      Contact MOMA and see if they will grant permission for your use. Don’t assume they will say no. Also, don’t be surprised if they ask for a fee or donation in return. Maybe it will be reasonable. I hope so.

      Reply
  5. Joel Friedlander

    How about the new PBS Masterpiece Classics miniseries, Death Comes to Pemberley that starts six years after Elizabeth Bennet and Mr. Darcy overcame Pride and Prejudice?

    It’s also worth mentioning (although it’s not relevant to the discussion of copyright) that Shakespeare didn’t actually create any of the stories in his plays, he found them in earlier collections of stories. Romeo and Juliet itself was based on several sources, including Giulietta e Romeo, a novella by the Italian author Matteo Bandello.

    So this borrowing of story lines (or “inspiration” if you like) has been going on for a very long time.

    Reply
    • Helen Sedwick

      Some people say there are only 20 plot lines, or 6, or even 1. But there are an infinite number of stories.

      Reply
  6. Widdershins

    So is this global, or something only U.S.-ians have to contend with? I.e. are works published in other countries impacted by these draconian expiry dates?

    Reply
  7. Paula Cappa

    Helen, this is very helpful. Would you happen to know if it’s considered legal to have a character think or quote another fictional character’s thoughts? For ex. if my character, Joe, reads and loves Sam Spade detective novels and refers to some of Spade’s thinking and quotes. Is that okay? Would I need permissions from the publisher to use Sam Spade quotes in my novel? Of course Joe is identifying that Sam Spade said this or that, so there’s always a reference to where Joe got this thought. And I would acknowledge Sam Spade novels in my Acknowledgments at the end. What do you think are the legal issues here?

    Reply
    • Helen Sedwick

      Paula, If you ask a lawyer a question, her favorite answer is “it depends.” This is one of those situations.
      If you are going to quote Dashiell Hammett’s work and refer to his characters, the legal issues depend on how much of his original work you use. Copyright law does not protect short phrases such as book titles and quotes. There is no clear rule of how short a phrase needs to be to avoid a copyright infringement claim. Some lawyers recommend keeping quotes to 15 words or less; other say 10 words or less. (The exception is lyrics where the rules are much stricter.)
      It does not matter if you give credit to the original author. That would not bar a copyright infringement claim.
      Mentioning a book title or character is generally not a problem. For instance, if your character asked himself “what would Sam Spade do?”, that should not raise a legal risk. But I would not use a famous title or character on your cover without consulting an attorney.
      Keep in mind that no one may care that you book refers to Sam Spade. He has become almost a generic character.
      Sorry these answers are fuzzy, but the law is fuzzy in this area.

      Reply
  8. Michael N. Marcus

    With no concern for copyright, you can also create new books based on what you’ve written before. You can sell the same words more than once, in different ways to different readers.

    See https://www.bookmakingblog.com/2014/02/for-presidents-day-lesson-for-writers.html

    It’s important to maximize income and minimize effort. Look at what you’ve already written and figure out how you can recycle, reuse, repurpose, revise, sequelize and serialize.

    My newest book contains some material from previous books and blog posts.

    Reply
    • Helen Sedwick

      Michael, Very true. One of the many benefits of self-publishing is the writer continues to own and control his or her work.
      However, if the writer has sold or licensed the material to someone else, contract language should be checked before the material is reused.

      Reply

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