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Copyright duration primer from a bloodsucking lawyer

By Tara “Bloodsucker” Warrington

I am fucking terrified of vampires. Even as a grown woman, I still sleep with the covers drawn up around my neck. Of course, I have always been a bit of a masochist so I consumed all things vampire-related growing up: The Lost Boys, Anne Rice, Salem’s Lot, Buffy the Vampire Slayer, etc. (Please refrain from mentioning Nosferatu: just the thought of that particular incarnation of vampire is enough to give me nightmares.) Nothing compares to the original, however: Bram Stoker’s Dracula.

Originally published May 1897 in the United Kingdom, Bram Stoker’s Dracula spawned an entire industry of literary bloodsuckers. The novel was subsequently published in the United States in 1899. The copyright laws in existence at that time required authors to register and deposit their published works in order to receive copyright protection. Stoker failed to do so. Lugosi v. Universal Pictures, 139 Cal. Rptr. 35, 37 n.4 (1977). Dracula, therefore, has been in the public domain in the United States ever since its publication. The novel retained copyright protection elsewhere until 1962 (50 years after Bram Stoker’s death) when it passed into the public domain. Id.

TaxProf Blog and the Wall Street Journal recently highlighted a new edition of Dracula being released this year: “The New Annotated Dracula,” edited by Leslie S. Klinger (a tax lawyer by day, insert clever bloodsucker joke here by night), which apparently features several innovative plot interpretations and historical exposes. The annotation culminates with the first ever publication of an alternate ending originally drafted by Stoker.

Assuming for the sake of argument that the alternate ending is a separate and distinct work of authorship (the chapter clearly was not intended to be incorporated into the whole) and assuming the alternate ending consists of original copyrightable material, this new publication underscores an interesting durational issue arising under current copyright law. The United State’s Copyright Act of 1909 required publication and notice of ownership for federal copyright protection to subsist in a work of authorship. Unregister, unpublished works retained a perpetual common law copyright under state law. The Copyright Act of 1976 amended the statutory framework by abolishing common law copyright and providing that federal copyright subsists from the moment an original work of authorship is created. Registration and publication were no longer requirements for obtaining copyright protections on works of authorship. Previously unregistered and unpublished works were now brought into the rubric of federal Copyright Law. However, the authors of the vast majority of unregistered and unpublished works had long since passed away, as had their survivors. (Unregistered, unpublished works included a vast array of items, including personal correspondence, diaries, sketches, etc.)

In order to curb massive application and operational hurdles, the Copyright Act of 1976 provided a specific durational term for previously unregistered, unpublished works. Each previously unregistered, unpublished work was deemed to be created as of January 1, 1978 – the enactment date for the Copyright Act of 1976. If the work remained unpublished, the copyright terminated as of December 31, 2002 and the work passed into the public domain. If the work was published prior to December 31, 2002, the copyright term extends until December 31, 2047. Had the alternate ending for Dracula been published prior to the end of the year in 2002, the ending would have been entitled to copyright protection until December 31, 2047. Since it was not published prior to that time, the ending is now completely in the public domain. With the publication of the alternate ending in the “New Annotated” version of Dracula, genre authors should feel free to suck literary elements straight out of heart of the alternate ending in creating new works

One final note, I personally think Paul Allen, co-founder of Microsoft, is an ass for keeping this early draft of Dracula hidden for as long as he has.

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