How Copyright Infringement Turned Vampires Into Big Business

from the damn-helpful-thieving-'creatives' dept

If you've spent any time in the comment threads here at Techdirt, you've probably run into someone decrying derivative works as uncreative and useless, arguing that art should be created in a vacuum, preferably a vacuum composed of extensive copyright protection. The impression is given that anyone who builds off another's works is some sort of leech who could never create anything of value.

However, it has been shown over and over again that this simply isn't the truth. Jonathan Bailey of the Plagarism Today blog has written up a fascinating piece on the early copyright battle between Bram Stoker's estate and Albin Grau, the producer of the 1922 film "Nosferatu."

Film producer Albin Grau originally got the idea to shoot a vampire movie in 1916. Serving in Serbia during WWI, Grau was inspired to make a film about vampires after speaking with local farmers about the lore.

Grau, however, hit a major snag. He had wanted to do a expressionistic retelling of the story of Dracula but the estate of Bram Stoker, spearheaded by his widow, Florence Stoker, would not sell him the rights. Though the book was already in the public domain in the U.S. due to an error in copyright notice (similar to the one that caused Night of the Living Dead to lapse 45 years later), in Grau's native Germany, which was already a signatory to the Berne Convention (The U.S. would not sign until 1988), the work would not lapse until 1962, fifty years after Bram Stoker's death.

As Dailey Bailey points out, copyright law was already in sad, inconsistent shape back in the 1920s. If Grau had been American, "Dracula" would have been a public domain work and this story would be much different. However, Grau being German, his options were to either work around Stoker's estate or wait for the copyright to lapse, which wouldn't be for another four decades.

Instead of giving up, Grau got (wait for it...) creative:

Undaunted, Grau pressed forward with the film and it started production in 1921. However, several changes were made in the movie in a bid to duck a copyright lawsuit. The name of the movie was changed to Nosferatu, the main character's name was changed to Count Orlok and the plot itself received many tweaks and modifications.

Unfortunately, these changes weren't enough and Stoker's estate filed suit. Since early prints still contained the name "Dracula," the court ordered that all prints of the film be destroyed. Grau was forced to file for bankruptcy and his film studio was shuttered. "Nosferatu" would have been nothing more than a tiny footnote in film and copyright history, but one copy had already made its way to the U.S., where Stoker's work was public domain.

The film slowly began to gather an audience in the U.S. and, by the 1960s, had earned a place as a horror classic. By then, Dracula was in the public domain worldwide and Nosferatu could be shown freely (though the film itself was protected by copyright in many locations, once again though, not the U.S.).

More importantly though, Nosferatu is the first vampire film that is known to have survived into the modern age. As such, it set many of the templates and rules for the films that would follow, including changing some of vampire lore forever.

Dailey Bailey details some of these changes made in the failed attempt to avoid litigation:

The biggest change was the ending of the movie. In Nosferatu, Count Orlok is burned up by the sunlight. However, in Bram Stoker's version, sunlight was harmless to vampires, it just weakened them slightly.

Another difference is that a bite from Orlok does not create a new vampire. Rather, Orlok merely kills his victims. This theme too would be adopted by later films, which focused less on the "curse" element of vampirism and often gave vampires a choice as to whether or not a victim would live as a vampire or perish (IE: Interview with a Vampire).

And here we arrive at the crux of the continued argument against derivative works. Statements are made to the effect that "x should have licensed y" or "make original art only," but these detractors overlook the positive impact that derivative works can have. Like, say, increasing interest in a certain subject:

Vampire lore would have been very different without Nosferatu. However, the biggest change might be that there would have been almost no vampire movies at all... After all, without Nosferatu proving the interest and potential profit from vampire movies, it's debatable whether Universal and/or Hammer Films would have taken up the Dracula name.

Dailey Bailey sums it all up with a statement that sounds like it may have come from some of the faithful "freetarded:"

In the end, though it's the later Draculas that would become better known, it's likely none of them would have ever done so if it hadn't been for this copyright infringing film that managed to stay alive with a stake through its heart.

I can't argue with that, although I bet some of the commenters can. But before you broadbrush Dailey Bailey as just another member of Pirate Mike's choir, perhaps you should click through and take a good long look at his site.

 

Filed Under: culture, dracula, infringement, nosferatu, vampires