The Public Domain and New Derivative Works

Posted January 12, 2021
Montage of book and film covers of works entering the public domain
Montage courtesy of the Center for the Study of the Public Domain

Earlier this month, we celebrated the new batch of literary works entering the public domain, and shared with you some common ways that works enter the public domain. Once a work is in the public domain, authors and the public at large can make any use of it in any way they wish, including uses that were formerly the exclusive right of the copyright holder. One such right is the right to prepare derivative works based on the public domain work. Derivative works are new works which build off of pre-existing works, such as translations or theatrical adaptations. Today, we will discuss new uses that can be made of works that have fallen into the public domain using examples from popular films and literature. 

The Great Gatsby in 2021

One of the most well-known literary works to enter the public domain this year is F. Scott Fitzgerald’s The Great Gatsby. Now, authors are free to create new works drawing on the characters, plot, and expression from Fitzgerald’s original without fear of copyright liability. Since it is no longer subject to copyright protection or restrictions on its use, the text can also be read or downloaded for free online

One new derivative work based on The Great Gatsby and published just this month is Michael Farris Smith’s Nick, a new prequel. Nick imagines Nick Carroway’s life prior to his time at West Egg, explores Nick’s trauma, and describes a stay in New Orleans after World War I. While the Fitzgerald Trust, which controls the rights to Fitzgerald’s works under copyright, has been selective in granting licenses to prepare derivative works based on Gatsby in the past, it can no longer “try and safeguard the text, to guide certain projects and try to avoid unfortunate ones.” For instance, one recently licensed derivative work of Gatsby was a graphic novel published in June 2020. Fitzgerald Trustee Blake Hazard “was closely involved with the graphic novel” and selected the illustrator herself. Now, anyone is free to use Gatsby as a building block for add-on creation like graphic novels without permission from the Fitzgerald Trust. And we are sure to see new derivative works emerge in the coming months and years: trade publishers are planning new hardcover editions, and fans have recently called for a Muppet version of the novel (though we note that this is complicated by the fact that Disney controls the copyright in the Muppets).

Derivative Works in Popular Culture

Derivative works based on works that have entered the public domain are nothing new. Shakespeare’s plays—which have always existed in the public domain, since their publication predated the first copyright law—have inspired a multitude of beloved derivative works, from films Ten Things I Hate About You (The Taming of the Shrew) and She’s the Man (Twelfth Night) to Ray Bradbury’s Something Wicked this Way Comes (Macbeth), and has inspired numerous loose retellings such as Brave New World (The Tempest) and even Disney’s The Lion King (Hamlet). 

In fact, derivative works based on public domain works will themselves eventually enter the public domain once their copyrights expire, enabling the creation of new derivative works based on now-public domain derivative works. For example, the musical and film, West Side Story, is a derivative work based on Shakespeare’s Romeo and Juliet, a play which itself drew heavily on Ovid’s Pyramus and Thisbe, such that Romeo and Juliet too could be considered a derivative work. Both Romeo and Juliet and Pyramus and Thisbe were published prior to the passage of the first copyright law, but this example illustrates how derivative works based on public domain works can lead to the evolution of popular stories over time. In this way, creating derivative works based on works in the public domain fosters the development of culture and knowledge—a core purpose of copyright law.

Reaching New Audiences with Derivative Works

Derivative works can also enable the original work to reach new audiences. Shakespeare’s plays can be daunting for contemporary readers, using unfamiliar language and conventions. But the multitude of derivative works based on Shakespeare plays brings the stories to audiences who may not be interested in reading the original works, enhancing access to the stories in the process. 

It may surprise you to learn that Disney—colossal and vocal defender of copyright protection—has for decades taken advantage of the public domain to produce some of its most popular and successful films. In the 90s, Disney co-produced with Jim Hensen studios two Muppets movies based on public domain books: A Muppet Treasure Island and A Muppet Christmas Carol, based on out-of-copyright works by Robert Louis Stevenson and Charles Dickens respectively. The list goes on—Snow White, Cinderella, and Sleeping Beauty are all based on Grimms’ Fairy Tales; The Little Mermaid is based on a Hans Christian Andersen story, as is the more recent Frozen—a retelling of Andersen’s The Snow Queen. In general, the Disney adaptations made these stories more palatable for children, such as changing the ending of The Little Mermaid from one in which “[Ariel’s] heart is broken when her prince marries someone else” and ultimately sacrifices herself rather than killing the prince, as Ursula demands, to the happily-ever-after ending we know today.

In this way, new derivative works based on public domain works can enable the original work to reach new audiences. Public domain texts can be made freely available online for anyone to read, enhancing access to those texts for those without access to the print editions. Translations are derivative works which allow public domain texts to reach audiences who lack fluency in the work’s original language, and a wide variety of adaptations—from abridged versions for less advanced readers to so-called critical editions for college students—can help the work reach readers of different demographics. 

The possibilities for add-on creation to works that have entered the public domain are endless. We encourage our members and readers to explore the public domain and discover new sources of inspiration!