Frankenstein and Copyright: 5 Things You Should Know

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

The first edition of Frankenstein, or The Modern Prometheus, was published in 1818, two hundred years ago. Originally offered to the public as an anonymous work, Frankenstein was both the apogee of the gothic horror novel and the birth of the science fiction genre.

The public did not learn until years later that this masterpiece had been penned by Mary Wollstonecraft Shelley. Shelley had written the work on a rainy day in 1816, when she was only nineteen. Incredibly, twenty-year-old John Polidori was simultaneously inventing the vampire genre just down the hall in the same Geneva villa.

The actual publication date of the first edition was January 1, 1818, but the Halloween season is as good a time as any to commemorate the two-hundredth anniversary of Frankenstein and its relationship to copyright law. Here are five things you should know.

  1. Shelley sold the Frankenstein copyright for £30.

The first edition of Frankenstein was printed by the London publishing house of Lackington & Co., which agreed to give Shelley one-third of the profits from a 500 copy run. Shelley’s share came to about £41.

In 1823, the first stage version of Frankenstein (called Presumption, or The Fate of Frankenstein) was produced by Richard Peake. Shelley reportedly enjoyed the play, but her approval wasn’t important, because at the time she had no rights to assert against it. The year before, her buddy Lord Byron had gone to court to enjoin an unauthorized theatrical version of one of his own works, only to be told by the King’s Bench (in Murray v. Elliston), that the play was a “fair abridgment” of his work over which he had no say. Notwithstanding the state of the law, Shelley’s family was able to take advantage of the publicity surrounding Peake’s play to print and sell a revised second edition of Frankenstein.

In 1831, publishers Henry Colburn and Richard Bentley asked Shelley to create a third edition for their “Standard Novels” series, and this is the version with which we are most familiar today. Among the most prominent changes was a new introduction explaining how the novel was conceived, a revised backstory for Elizabeth, and the introduction of galvanism as the possible agent of resurrection.

Colburn and Bentley’s request for these revisions appears to have been motivated in part by the desire to create a brand new work in which they could own the copyright. In fact, some scholars have suggested that this classic version of Frankenstein may never have come into being but for the incentives and prohibitions of copyright law. Shelley transferred the copyright in the third edition to Colburn and Bentley for £30, the last money she would ever see from the book.

  1. The monster is in the public domain, but not the one you are picturing.

Shelley’s description of the monster was of an outsized 8-foot tall man with lustrous black hair, white teeth and tight yellow skin. The illustration to the 1831 edition, a big naked guy with really good abs, remains more or less faithful to that description. The popular depiction of the monster began to change when Edison Studios produced the first film version of Frankenstein in 1910 and introduced a fully clothed but disheveled fiend with white makeup and an Edward Scissorhands vibe.

But when I say “Frankenstein,” you are not thinking of any of those early depictions. The flat-topped, neck-bolted monster we know and love was born in 1931, when Boris Karloff starred in Universal Pictures’ film version of Frankenstein, directed by James Whale. Sure, the copyright in the original Frankenstein story had already fallen into the public domain, but by then Universal’s movie (and sequels and derivative works) resurrected a whole new era of Frankenstein copyright and trademark rights based on the film’s visuals, especially Karloff’s appearance as fixed on celluloid.

We haven’t found any published opinions pertaining to Universal’s enforcement of these rights, but there are lots of anecdotes out there. Other Frankenstein film and comic book franchises have reportedly gone to great lengths to design around the Karloff look. In 1971, a Shasta soda ad supposedly had to be reshot because the makeup artist created something too close to the Karloff monster. And as recently as 2010, the author of the poster book Electric Frankenstein reported getting a cease and desist letter warning him to stay away from the combination of five visual elements that make up the Universal character’s appearance: bolts, green skin, big forehead, scar, and flat-top.

I know what you’re thinking: how did Herman Munster get away with it all those years? Easy … Universal owns him too.

  1. Bread good . . . Fire bad.

In the 1980’s, E.J. Novak and Debra Studer created the “Video Vault,” a series of comedy sketches in which veteran talk show host Joe Franklin conducted various impossible interviews with historical and literary characters. Frankenstein’s monster appeared in one segment (alongside the Wicked Witch). The monster greeted the host with “Joe Franklin – Friend – Joe Franklin – good,” and didn’t say much more after that except “Grrrr.” In August 1985, Novak and Studer submitted an unsolicited demo tape to Saturday Night Live.

A couple years later, Saturday Night Live featured a skit called “Succinctly Speaking,” a parody talk show in which Nora Dunn interviewed Tarzan (Kevin Nealon), Tonto (Jon Lovitz), and Frankenstein’s monster (the late great Phil Hartman). In response to some simple questions, the monster answered “Bread Good” and “Fire Bad,” but then he growled and stormed off the set when asked for his views on the INF treaty.

Novak and Studer sued NBC and others for this and similar alleged copying of their work. The Southern District of New York granted summary judgment for NBC on most of the claims, including those pertaining to the “Succinctly Speaking” skit. The Court observed that the only similarities between the works were (a) the basic idea, which was not protectable; and (b) stock elements that were as a practical matter indispensable for a particular topic (and thus, under the scénes á faire doctrine, not the proper subject for a copyright action).

Although the Frankenstein skit was out of the case, certain other claims hung around for a couple more years (one involving a mafia character played by Don Novello a/k/a Father Guido Sarducci). Novak and Studer, acting pro se, used their court filings as an opportunity to hone their comedy skills. Among other things, they insisted on referring to opposing counsel as “Laurel and Hardy.” Judge Robert Sweet found this behavior “not only unseemly and unfunny, but intended to harass” and eventually sent the plaintiffs packing with a dismissal and a $3,500 sanctions penalty.

  1. Big Frank’s got a lot of heart.

M.H. Segan, a Massachusetts toy company, pitched its “Frankenstuff” plush toy concept to Hasbro in 1986. Frankenstuff was “a somewhat friendly looking juvenile Frankenstein’s monster whose chest and head can be zipped open to reveal all kinds of interesting and fun toys and goodies.” Alongside the familiar green skin, square head and neck bolts, Frankenstuff had a babyish face, a purple robe and large hands. When you unzipped the chest cavity, you saw a red heart with two green and yellow gears comprising a clockwork-like mechanism.

Hasbro rejected the idea, but then in 1993 it introduced “Big Frank,” a talking plastic toy in a bright orange suit with a babyish face, big hands, green skin and square head. His chest had a door built in to it; when you opened it, you saw a plastic clockwork-like heart mechanism featuring blue and yellow gears.

Segan filed suit for copyright infringement in the Southern District of New York. On a motion for summary judgment, Hasbro argued that Segan’s Frankenstuff copyright was invalid because it was derivative of the Universal version of the monster and, unlike Hasbro, Segan did not have a license from Universal.  The Court acknowledged that there were many similarities between Segan’s design and Universal’s property, but held that there were disputed issues of material fact as to whether Frankenstuff was truly derivative of Universal’s design, or merely “stirred one’s memory” of that design. The Court also held that summary judgment was not appropriate as to whether Frankenstuff and Big Frank were substantially similar to each other, as there were more than de minimis substantial similarities in protected expression, in particular the heart mechanism.

  1. Frankenstein saved your VCR!

Finally, remember that time Frankenstein’s monster saved your VCR? Ok, that’s a bit of an exaggeration, but the monster was right there in the middle of one of the Supreme Court’s most important fair use cases.

By 1976, consumers had started to discover the joys of home video, and were using Sony Betamax devices to record their favorite programs from broadcast television. Universal (and other movie studios) filed a copyright case alleging that, by making this consumer copying possible, Sony was secondarily liable for massive copyright infringement.

In order to bring a case for secondary infringement, the movie studios had to prove some primary infringement. Towards that end, the plaintiffs presented evidence of five consumers who, although not themselves defendants, were the primary infringers for whose acts Sony was allegedly secondarily liable. One of these consumers was Marc Wielage, who purchased a Sony Betamax 7200 so he could tape his favorite Universal monster movies, such as Frankenstein, House of Frankenstein and Son of Frankenstein, and watch them at a time of his convenience.

The California Central District Court held that Wielage’s copying amounted to non-commercial “time-shift” viewing of material made available over the public airwaves, and was therefore a fair use. The Ninth Circuit reversed, and the case made it all the way to the Supreme Court. In Sony Corp. v. Universal City Studios, a 5-4 decision, the Supreme Court agreed with the District Court that the sale of home video recorders to the public did not constitute secondary infringement because the underlying challenged use of the devices, unauthorized home time-shift viewing, was fair use.

Unfortunately for Frankenstein fans, the individual examples of consumer infringers didn’t make it into Justice John Paul Steven’s majority opinion. However, Justice Stevens understood that his decision was not only saving the home recording industry generally, but specifically making the world safe for Marc Wielage’s Betamax copy of Bride of Frankenstein.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

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