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By Kohel Haver

A walk through the children’s book section of a bookstore will reveal new children’s stories with wonderful illustrations. Among them will be retellings- new versions of old stories; these newer versions are commonly revived with updated illustrations. This raises the question, as a matter of US copyright law, what is a contemporary artist free to use and how circumspect should an illustrator or author be regarding copyright issues and copyright infringement with the retelling of old stories?  How is a contemporary author or illustrator to know what they can and they can not use?

Most answers, with regard to copyright law and children’s stories are prefaced by “depending on all of the facts.”  This is why: the root of the US copyright law, and the copyright law of most nations, is to grant authors illustrators the monopoly right to control the reproduction, in its many forms, of their original works or authorship for the duration of the copyright.  The law favors their contribution and the right to profit from their original work.  The law also figures ideals of free speech and free expression into the formula.  A copyright is secured only for a limited time.

How long does copyright protection last?

In the US, the term of the protection has changed over the years from a just few years in 1800’s – in the 1909 revision the exclusive right lasted 28 years and was renewable, and since 1976 the protection lasts beyond the life of the author.  Many children’s stories are original to the author, and original works of authorship written in the United States are now protected under the US copyright law for the life of the author plus 70 years.  Original works of authorship are protected for a long time.  But recall that the copyright law is a balance between the exclusive rights of the authors and the rights of everyone else to freely share in our common heritage – the public domain. When the work is no longer protected under copyright it enters the public domain – free for anyone to use.  A general rule of thumb is that if the book was published over 75 years ago it is likely no longer protected by copyright law in any country.

Public Domain and Folktales

As well as originating in other countries, many children’s stories are based on traditional stories passed down through families and are by their nature in the public domain, free for the public to use.  If they ever were, they are no longer protected under copyright law, which means they are free to anyone to tell and interpret without license or paying a royalty.  Most authors of children’s books know that there are many themes for stories that have been around for many years.  How is a new author to know whether their work is original and completely their own, or when it is based on a traditional story?  What happens when their repetition is the product of some unconscious connection with a childhood story? Where is the line? What if one retells a traditional story but with original illustrations – in that latter case is the modern author entitled to exclusive ownership of only what they bring to the story?  And what happens when that story inadvertently turns out not to be as original to the author as the author intended?

How does Disney do it?

As an example, the Disney Company has been bringing their versions of traditional children’s stories to the public for many years in the form of animated films.  Many of these stories have their basis in the public domain, stories that are no longer protected under copyright and anyone is free to produce their version of the story.  The Disney Company had been quite successful retelling old public domain stories.  Lewis Carroll wrote the original Alice in Wonderland, Carlo Collodi wrote Pinocchio, The Grimm Brothers wrote Snow White and Cinderella, Rudyard Kipling wrote the Jungle Book, Victor  Hugo wrote the  Hunchback of Notre Dame, Hans Christian Andersen wrote The Little Mermaid, Kenneth Grahame wrote The Wind in the Willows, and AA Milne wrote Winnie the Pooh.

All of these examples illustrate that even when the initial story is in the public domain, a new author can own what they add to the story. Of all of those Disney films, Disney animation created versions of the stories unique to them, and Disney has a copyright interest in all of their animation.  It’s also true that anyone is permitted to tell and publish his or her own interpretation of Snow White, but must do so without referencing the Disney animation.  Playing in a theater this month is a teen story called “Sydney White.”

 On the subject of duration of copyright, you can’t always rely on the statute. In the case of “Peter Pan,” when the copyright protection expired, the UK Parliament made a special exception for the law because the royalties for the copyright is held by the trustees of the Hospital for Sick Children,

, in London. The copyright for that work is now, in effect, perpetual under the Copyright, Designs and Patents Act 1988, section 301, although the copyright technically expired in 1987.

No One Owns Fact

Another area where a new author would be free to use source material is when that source material is based on fact.  The facts that a seed grows into a plant, ants live with some social order, bees make honey, squirrels are furry, and seals bark are all facts and as facts those characteristic points are available for anyone to write about.  However, the precise manner of expressing those facts can be owned by one author – but only to the extent that the story goes beyond the facts (that is the protectable part.)  So in the story “Our Furry Friend the Squirrel” about the squirrel that we call Fred Crackers who lives in the oak tree in our yard – the author can own anything that is not about a generic squirrel, oak trees and yards.  Anyone can write their own story about a squirrel, but this author owns the amusing anecdote about Fred Crackers stealing a ride in the travel box on top of the car to the supermarket, where Fred goes through the open doors, jumps up on the peanut display, fills his mouth with nuts and runs back to the car roof waiting for his ride home.

There are other areas where copyright law presents some uniquely interesting issues – such as math and science stories.  The general rule is that the facts are not protectable includes math and science facts.  Bobby has one apple and Billy has five apples together they have six apples is mostly facts.  One plus five equals six is a fact, and not protectable.  Would this be true if the problem took five pages to explain?  Here we must be able separate the facts, or the science, from the creative embellishment.  Facts are in the public domain but the story may not be.  This concept is made more difficult if the second author did not know about the work of the first.  The question arises – is there only one way to describe that problem?

What is Infringement?

To understand the trouble you should know a little about copyright infringement lawsuits.  The easy case of copyright infringement is with the unauthorized interference with the author’s exclusive right to control the copy, display, or preparation of derivative works of an original work of authorship that occurs when the infringer knowingly makes a copy of some protected material and sells it.  If you make copies of that Disney DVD, without their permission, and sell them in the parking lot – that is certainly copyright infringement.  Copyright infringement is a sort of a strict liability problem – meaning that it does not help your case that you didn’t know that what you did was wrong.  If you made and distributed copies, you are liable for infringement, although the penalties might be less if you are innocent.

How much did you use?

While it would be unnecessary to remind an author that copying someone else’s work would likely be infringement, you also know that ideas are not protectable. Similarly taking a very small amount, a minimal amount, of published work might also be acceptable under a section of the law called “Fair Use”. Fair Use is a feature of the copyright law – it defines certain situation where one can use a small and reasonable amount of work without permission. News reporting, commentary (reviews) scholarly work are all considered a fair use of copyrighted work. The law also offers four considerations when making the decision if fair use applies. The considerations are 1. What kind of work was taken, 2. How much of it was used. 3. How are you using it? (what is the type of profit or non profit venture) and 4. What was the effect on the market for the original?  Using this analysis if the new work is a substitute for the original that won’t be a fair use if it takes only what one would need to reference the original work that is likely to be fair. 

Did you see it or hear before you copied it?

If the infringer had access to the original work and intentionally violated the rights of the author – the infringer will have liability. But what happens when the infringer does not have access – has never seen the original work but still comes up with a copy. It’s unlikely that this will happen, but to prove infringement you need to prove the infringer had access to the original work, copies were made and that the works are similar. If there is proof of access, the amount of similarity required to make the case is a lesser standard.  If it is a completely independent coincidence that the two works are similar, both can exist without infringing the copyright of the other.  George Harrison made that argument when he was accused of infringement in his song “My Sweet Lord” – it was too similar to the song “He’s So Fine” by the Chiffons. The case turned on the fact that a musician of his stature had likely heard the Chiffons tune, and while he didn’t recall doing so, that tune was copied in his song. The case settled.  If you read a lot of children’s books and are a professional, the inference will be made that you had access to the original and that you intentionally or otherwise copied it. 

Does that mean you are foreclosed from using the ideas or influences of another work? Certainly not – only the expression is protected.  The ideas, like the facts and like the stories in the public domain, are all there for you to use.

It’s not Complicated.

The rules you should follow are not that complicated, and if you follow them you will write something that you can publish without concern that you will receive that nasty letter telling you to cease and desist stealing from another children’s book author.