Everything Old is Remade Again
By Andrew Herz
Everything old is not really “new again.” It’s just re-made.
Hollywood trots out a never ending parade of films based on popular television shows, books, stage plays and musicals – and plays that were originally based on movies. And Broadway musicals return the favor, consistently recycling popular films. Comic book superheroes famous and marginal are endlessly repackaged as films if not franchises … It seems at times that any form of popular entertainment with a proven prior audience has been or is about to remade.
The development, production and distribution of mass entertainment very much resembles a giant recycling system. Any doubts should be swept away by news last month that the clunky 8O’s video game, Tetris, will be regurgitated into a film.
The same folks who turned the “Mortal Kombat” video game into not one but two movies back in the 90s will no doubt print money with a live-action Tetris “epic.”
Why? Simple market mathematics. Remakes on film and stage are inherently more appealing to studios, distributors and investors because of the marketing, distribution and potential revenue advantages presented by any such pre-established audience.
Russian developer Alexey Pajitnov created Tetris back in 1984. It became a worldwide phenomenon in 1989 when it was bundled with Nintendo’s Game Boy system. Today, the game appears on more than 50 gaming platforms, 425 million mobile devices, and is played online more than a billion times each year. That’s a massive proven audience and there are a lot of ways to reach and sell things to that audience.
So remakes are everywhere. But that’s been true a long time. Authors have been reweaving older works into new stories forever. Greek and Roman myths were developed over centuries of retelling. Many of Shakespeare’s plays rework historical tales and earlier stage productions. The best Disney animation films were remakes of fairly tales and well-loved children’s literature, ranging from Snow White and Pinocchio to Peter Pan and Alice in Wonderland.
Copyright law – and intellectual property law in general – recognizes that dynamic and attempts to reconcile two competing principles:
1. Protect the rights of original authors and creative artists to receive credit and profit from their original work; but
2. Encourage the free exchange of ideas and development of new works – even if they are “derivative” or “adaptions” – even if they are based, in small or large part, on the ideas underlying previous works.
Can You Do the Remake?
On a more practical level, an artist or producer considering any form of adaptation or remake needs to step back in the development process (before committing substantial time or money) and carefully consider the copyright status of the original work and the nature of its use way it will be used in the new production. If you don’t do at least a basic review in the early stages, the entire production process can be held up for ransom or completely shut down as you get close to opening night.
The threshold question is whether you need a copyright license or other legal agreement to adapt the original work. If so, the process is going to take time and money – hopefully not too much money. You can avoid that step, by:
1. Using Public Domain material or
2. Tailoring your use of the original work to qualify as protected Fair Use.
Is it Public Domain?
The current length for copyrights in the name of an individual is Life of Author + 70 years. Thanks to the lobbying of certain powerful copyright holders like Disney, copyrights created as works for hire for a corporation now last 95 Years from First Publication or 120 Years From Date of Creation, whichever is less.
Here’s a useful table for evaluating any work for public domain status.
Is It Fair Use?
Simply using copyrighted material in a remake or adaptation without a license would almost surely constitute infringement. But certain “fair use” of previous works will be permitted for commentary, criticism, parody or other limited and “transformative” purposes.
Determining fair use is very fact-specific and tricky to pin down. A few examples illustrate the key factors:
When Saturday Night parodied the song “I Love New York” using the words “I Love Sodom” it was considered fair use as a parody – and limited use of the original work.
When The Jersey Boys stage musical included a seven-second clip from the Ed Sullivan TV show, that was considered “transformative” fair use because appearing on the show was used “as a biographic anchor” as “evidence of the band’s enduring prominence in American music” – and the stage musical use caused no financial harm to the copyright owners of the TV show.
It was also considered fair use when Luther Campbell and 2 Live Crew sampled just the open musical phrase and lyrics from the first line of Roy Orbison’s song “Pretty Woman.” The group’s use of those musical elements was held to be transformative and it borrowed only a small portion of the original song.
Andrew Herz is an intellectual property and employment attorney, focused particularly on technology and entertainment projects. If you have a project you’d like to discuss, contact him at email@example.com