In honor of Halloween, the excellent blog, Plagiarism Today (which I’ve referred to before), has a post recapping 8 stories it has published on copyright and horror movies. Each one is great — there’s a whole post about the Rocky Horror Picture Show and copyright law! sadly, though, it doesn’t address copyright protection for the Time Warp — but the in particular one that caught my eye was How A Copyright Mistake Created the Modern Zombie. Before reading the post, I had no idea about this story, but it’s fascinating for both copyright law and for the history of film. I won’t spoil the surprise for you; go read it for yourself. It’s worth your time.

While we’re on the topic of zombies and copyright, I should mention that “zombie copyrights” are actually thing (sort of). Back in 1997, Adam Segal wrote an article entitled Zombie Copyrights: Copyright Restoration Under the New [sec] 104A of the Copyright Act. This article deals with one of the more curious provisions of copyright law: Copyright restoration for foreign works. Normally, when we think of works in the public domain, we think they are free to use forever. However, under the right circumstances, some works can come out of the public domain and come back under copyright protection. Just like zombies, they come back from the dead.

The reason the law provides for copyright restoration stems from a conflict between the way old US law treated copyrights compared to how other countries do. In 1989, the United States officially became part of the Berne Convention. This treaty — the oldest and most important multilateral treaty on copyright law — requires member countries to offer protection to all works that are still protected by copyright in their counties of origin. However, when the United States became a member of Berne, many works from around the world were in the public domain in the United States for failure to follow the “formalities” required by US law.

In copyright-speak, a formality is any sort of procedural hoop creators must jump through before their works receive protection. In the US before 1978, these formalities meant that people had to put copyright notice on their published works, or the works would enter the public domain. Similarly, copyright holders had to renew their copyrights after 28 years, or those works would fall into the public domain.

It’s easy to imagine how foreign authors who produced their works in countries without copyright formalities could have neglected to do one of these things and accidentally lost their protection in the United States. So, many foreign works entered the public domain unintentionally, and Berne required the US to do something about it.

So, in 1994, Congress passed the Uruguay Round Agreements Act. Codified as 17 U.S.C. sec.104A, this statute restored protection for foreign works that were in the public domain in the United States for failure to comply with formalities, but are still protected in their countries of origin.

This statute eventually found its way to the U.S. Supreme Court in Golan v. Holder, which affirmed Congress’s authority bring some copyrights back from the “dead” (the public domain). As such, this law isn’t going anywhere anytime soon and zombie copyrights may be coming to get you, Barbara….


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