What zombies can teach us about copyright and creation

These days, Zombies are just about everywhere. In addition to last’s summer series of strange events suggesting that a global attack of staggering cadavers was near, a a recently published philosophy paper (Petite philosophie du Zombieexamines the various meanings of this phenomenon. In the meantime, hordes of aficionados can hardly wait for the third season of The Walking Dead to be broadcast in mid-october — expect them to throw themselves on it as prowlers on some fresh brains.

As reminded by an excellent Arte report, one of the reasons why these monsters from beyond the grave have invaded popular culture is their ability to constantly reinvent themselves, ever since Georges Romero’s (“the Godfather of All Zombies“) founding movies introduced the archetype of the modern zombie.

After having colonized the horror movie genre, they spread on every field with astonishing ease : through music, with Michael Jackson’s Thriller video, through literature (Max Brook’s Zombie Survival Guide or Pride and Prejudice and Zombie, a parody of Jane Austen’s novel), or video games (Resident Evil among others, till the recent and crazy Lollypop Chainsaw).

Entire Conferences are now taking place in order to try and analyze the causes of this zombie-mania. In his essay Petite Philosophie du Zombie, Maxime Coulombe explains that these creatures echo our societies’ questioning on death, conscience or civilization. This is certainly true, but there is another explanation to all this, and it’s a legal one.

Georges Romero’s first movie Night of the Living Dead was never protected by copyright due to its distributor’s unbelievable screw-up… Released in 1968, the movie landed straightaway in the public domain, although theoretically it should have remained protected, as Romero is still alive.

This odd legal fate probably accounts for the fact that the Zombie Movie Data Base contains… 4913 entries so far, many of them directly inspired by Romero’s founding movie without fearing a possible trial or having to pay licences. This distinctive feature of the Zombie (which he doesn’t share with the Vampire, as will be discussed below) says a lot about copyright and creation : maximum protection is not always the best way to distribute a work and let it become part of the cultural heritage.

Right of the Living Dead

In the Internet Archive you will find Night Of The Living Dead available for free download or streaming, with a “Public Domain: No Rights Reserved” note, while most of the movies released at the end of the sixties will enter the public domain only in the second half of the 21st century!
 

The reason of this incongruity is the confusion associated with the movie release in 1968. At that time, a work was protected by copyright only if a Copyright Notice appeared in the credits, with the identity of the intellectual property rights holders. Just before the release, the distributor decided to change its title from Night of The Flesh Eaters to Night of The Living Dead. The decision was probably not bad, but in order to complete the modification, the distributor changed the credits and erased by mistake the Copyright Notice.

The movie was therefore never protected by copyright, and yet it had a great success and was considered as the most profitable horror movie ever made. The mishap later allowed many videotape distributors to spread the movie without having to pay for copyright.

Admittedly it was a bummer, however it somehow enhanced the popularity of the movie and made the propagation of the Zombie character easier.

Walking Public Domain

Cinema’s zombies existed long before Romero’s movie. They appeared in the United States in the 30s, in movies like White Zombie, inspired by Hawaiian tradition and the voodoo religion. Romero’s contribution consisted in developing in the Night of The Living Dead many characteristics that reinveinted the monster – zombies’ staggering walk, their taste for human flesh, the way they move in hordes, their vulnerability to head injuries, their fear of fire, the epidemic propagation, the post-apocalyptic dimension of the story, the gore scenes, etc. These elements certainly represent original contributions, which could have been protected as such by copyright.
 

But as the movie belonged in the public domain right away, these features were easily reusable for others to spread them widely. By the way, Romero himself was one of the first who benefitted from this creative freedom – as the American jurist Jonathan Bailey explains, Night of The Living Dead was the result of a collaboration between Georges Romero and co-scenarist John Russo. Following the first movie, an artistic disagreement arose between the two men about the outcome of their successful opus. The Night of The Living Dead being in the public domain, they couldn’t prevent one another from reusing the concept of zombie as it appeared in the movie. So they decided that they would both create their own sequels, and therefoire shared the legacy of Night of The living Dead : Russo made a series of movies whose titles included the phrase “Living Dead”, while Romero’s series were characterized by the phrase ”Of The Dead”. So the initial project experienced some kind of creative fork that could have happened with a free software.

From that point, Romero’s sequel (Dawn of the Dead, Day of the Dead, Land of the Dead, Diary of the Dead, Survival of the Dead) broached a political dimension, which already permeated the first movie. Fas for Russo, he put forward a humoristic vision of the zombies in his productions (Return of the Living Dead, Return of the Living Dead Part II, Return of the Living Dead 3, Return of the Living Dead: Necropolis, Return of the Living Dead: Rave from the Grave).

These two approaches represent the two main zombie “traditions” in cinema, leading other directors to play with it by delivering their own variation from the original elements and themes. So zombie movies are appealing because somehow they are fun, elaborate remixes.

 

 

Later on, the staggering living dead left the movie theatres and invaded every field of creation. Its success illustrates in fact the fertility of the public domain, and its major role in the development of creation. It can be enlightened even better by a comparison with another great figure of horror movies: the Vampire.

Call him Dra©ula

The anecdote isn’t well-known, but F.W. Murnau’s movie Nosferatu the Vampire has also experienced a rather incredible legal adventure, due to a fight between the creators of the movie and the owners of Bram Stoker’s (author of Dracula) rights.

In the early twenties, film producer Albin Grau wanted to make an adaptation of the novel Dracula, but did not succeed in acquiring rights from Bram Stoker’s widow, who was particularly tough in business. The project was however maintained, but included notable dissimilarities with the novel so as to avoid plagiarism charges. The setting was moved from London to Germany; Dracula became a monstrous-looking “Count Orlock”, quite different from Stoker’s Victorian dandy. Murnau also introduced details which were not in the novel, i.e. the fact that daylight ravages vampires, or that their bite transforms their victims in blood-thirsty monsters. As explained by Techdirt, a certain number of characteristics we naturally associate to vampires actually stem from Murnau’s struggle to avoid conviction for copyright infringement!
 

Despite these measures, Stoker’s widow sued him in Germany in 1925, and won. This conviction led to Prana Film’s and Albin Grau’s company bankrupt, and the destruction of most copies and negatives of the movie, as ordered by the judges. The story could have come to an end if a film reel had not been miraculously spared and brought to the United States, where the novel had fallen in the public domain because of a recording mistake (again!). Stoker’s widow had no means to prevent the movie’s diffusion in this country, where it became very popular until the sixties. Then, the return to Europe was possible, when Dracula’s copyright expired.

This story shows what could have happened with the zombies movies, if Night of The Living Dead had not fallen so quickly in the public domain. The copyright would have most probably prevented directors from picking elements from Romero’s movie, and the zombie character could not have invaded the popular culture so easily.

Copyright is brain theft! Brrraaaaiiiiinnn!

The morality of these stories is that the relation between copyright and creation is a lot more complex than what we are usually indoctrinated with.

Undoubtedly, authors need protection so that they are able to create, but the creation dynamics itself implies that works should be reused, changed, extended and enriched – a trend which was amplified with the Internet.

Nowadays, not only do artists reuse previous creations, but the audience also appropriate their favorite works, remixing them endlessly. This is particularly true for zombies, who inspire an impressive and vast amateur movie production.
 

In comparison, other emblematic works have become a bone of contention between fans and legal assignees. For instance, Korben recently revealed that Warner Bros had acted against a group of net surfers who had rebuilt Lord of the Rings’ Middle-earth, using a map generator from the videogame Skyrim. They were forced by the assignees to remove all the references to Tolkien’s universe, such as names of places and characters, which were protected as such by copyright and trade-mark.

In the end, Romero’s zombies may be more repulsive than the creatures of Lord of the Rings, but they are perfectly adapted to digital culture.

This article is published under a Creative Commons CC-BY licence. It was translated from French by Tamara and Félicité.