Understanding Filmmaker Use of Characters in the Public Domain

As a filmmaker, you draw inspiration from a variety of different areas as you walk through life. Story ideas come to you from everyday occurrences. And character ideas are likely drawn. Or otherwise inspired from past use of characters or tropes that have been established from other stories or past creators. Much of the intellectual property, such as books released long ago and the characters that are within those books, over time will make its way to the public domain. In fact, filmmakers are frequently looking for ways that they can utilize intellectual property without potentially violating copyright laws, but the use of characters in the public domain represents a key area of focus that few consider.

What is Public Domain?

Public domain represents the creative materials that are no longer (or which never were) protected by copyright laws or other intellectual property laws. Works that were once copyright protected.

Such as authored books and the characters included within them. They make their way to public domain when their copyright protection legally runs out. A period after the copyright owner dies. Or when the copyright otherwise expires and is not under renewal.

When works enter public domain the laws of copyright, trademark. Or patents laws no longer pertain to the work. Anyone may use public domain property without requesting a license.

Or otherwise asking for permission to use the intellectual property. However nobody ever owns the intellectual property contained in public domain.

Can Characters be Copyrighted?

Characters can be copyright protected which would prevent others from using them unless, or until the copyright expires and the character is in the public domain.

In fact, because characters can be copyrighted, those which are not protected by copyright. Or which are not within a work that is protected by copyright may otherwise be used without permission. Especially those which are considered public domain.

What Constitutes a “Character” in the Public Domain?

When it comes to filmmaker use of characters in the public domain, it’s important to understand that there are instances in which a character’s works might be included in public domain but the actual character is not.

As such, it’s very important for a filmmaker to understand whether it’s the actual character that is public domain or it’s the work that the character was featured in which is public domain. 

For example, Bugs Bunny represents a trademarked character. The character is NOT public domain. However, there are early episodes of Bugs Bunny the show which ARE public domain. Thus, to reuse or recreate these episodes might be possible.

But the character itself is under trademark and not public domain. Therefore the challenge would lie in whether or not reproducing the character would actually be considered a violation of trademark infringement. In this case, it most likely would!

How Characters Fall in the Public Domain

Filmmakers can benefit from understanding how characters become part of the public domain, too. There are actually several ways in which a character could be public domain.

First, of course and the simplest explanation, is that the character nor the film, show, book, or other literary work that the character is featured in was never copyright protected or trademarked.

Characters may also become public domain if the creator of the character specifically produces the character for public use.

Originality

But what about characters that aren’t individualized enough to be considered “original”? In the case of a character not meeting specific originality thresholds.

Such as if the character is too simple and lacking of unique qualities or characteristics. Like a stick figure with no further elements or characteristics. It may be too simple for copyright and therefore it is public domain.

Filmmaker Use of Characters in the Public Domain

So, if a filmmaker wants to use a character that is in the public domain, can the filmmaker simply use the character? Are permissions necessary? Or some sort of a license? If a character is definitely in the public domain or is likely to be in the public domain.

Then there are no licenses or permissions that would be required. In order for a filmmaker to use the character. There would be no risk of copyright infringement if a filmmaker uses a character that is in the public domain.

Consider This

However, recall the example previously provided of Bugs Bunny. It’s very important for filmmakers to do their homework. To make sure that they are not mistaking a character as public domain.

When in fact it may be the character’s creative works. Such as the film or television show the character was the start of or was otherwise involved in. That is actually public domain and not the character him or herself. 

It’s very common for people to not know much about copyright law. Especially those that are not part of the film industry. Or a similar creative industry. In which the focus is often on protecting intellectual property rights.

Film producers, as well as those involved in the creation of film characters, should be familiar with the background of a character. And must be very careful not to embark on copyright or trademark infringement. As they create “new” characters for the use of a film or television show. 

Seek Legal Counsel

Copyright holders might give the impression that they actually hold stronger, more significant rights to a character, than they actually do. For example, in characters that date back a substantial means into historical use.

Such as Santa Claus. There is sometimes confusion as to who, if anyone, actually owns the copyright. In fact, a filmmaker might be “tricked” into thinking. They need to seek permission from someone that doesn’t actually own as much interest in the character as they claim.

Again, this is why it’s important to work with an entertainment attorney that understands the legal intricacies and interpretations of copyright law before forming or finalizing characters for any script.

Especially those characters in the public domain. Or that are thought to be public domain.

The Takeaway

Although there are several characters in the public domain that filmmakers can openly use and freely adapt. Or otherwise build upon without further permission or licensing.

It is believed that adaptations and extensions to copyright ownership by Congress will limit the number of new characters that make their way into the public domain in the future.

For filmmakers, this means a bit more work to be done. But as with anything in the film industry, it’s always best to be sure about the creative inspiration that you draw from outside sources.

Because lawsuits for copyright infringement or trademark infringement can be not only costly, but incredibly daunting.