Copyright Questions of the Month. Fractured or Retold Fairy Tales

Q: If I want to write fractured/twisted fairy tales, do I have to worry about copyright? The other day I made up a fractured fairy tale during bath time and my daughter loved it. A few days before, we had read Eric Carle's Jack and the Beanstalk and the big giant scared her, so I told a version with a non-threatening giant. How much of a fairy tale can I borrow if I develop my oral story into a written work?

A:  This is a more complicated question than it may appear on its face. Many fairy tales stem from early German and French tales, long before copyright was even a glimmer on the horizon. Those tales are in the public domain, as they were originally written. “Originally written” means in their original language. A translation is a derivative, and creative, work. So even though the original work may be in the public domain, a new translation of the work is a copyrightable creative work. Think about new translations of the Bible, all of which carry current copyrights. Obviously the original works are long past any period of protection, but these new, creative translations (meaning going back to the original manuscripts and changing the language) or new retellings are creative works that merit their own copyrights.

That being said, ideas are not protected by copyright. You can write a story about a wolf and a girl in a red cloak who meet in the woods, and your story would be copyrightable. Many people have written such stories—and continue to do so—and their stories are or were protected by copyright. The originality threshold required to achieve a copyright is very low. Copyright law does not allow protection of “expressions that are standard, stock, or common to a particular topic, or that necessarily follow from a common theme or setting.” Additionally, Justice Learned Hand explained that “[t]he less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” So I expect that your story, unless it is uncomfortably close to a modern retelling, is likely a copyrightable work in itself. I hope you will continue to write new and innovative stories with those standard characters.

Goosebumps on YouTube

Q: A teacher asked me about watching Goosebumps on YouTube with her class. We have a movie license, but it does not include the individual shows. Plus, she is using it for entertainment, not educational purposes. I think she would have to contact the producer for permission. Am I correct?

A: You are correct that your movie license doesn’t generally cover this sort of public performance. Generally, movie licenses are limited to theatrical entertainment-type movies from specific producers. Check your license to see which producers are included.

Additionally, to qualify for the section 110(2) educational exemptions from the necessity of public performance licensing, the performance must meet five requirements:

1. The performance must be in a non-profit educational institution.
2. The performance must be for students and teachers in a regularly scheduled class.
3. The performance must take place in an instructional place.
4. The performance must be made from a legally acquired copy of the work.
5. The performance must be a material part of direct instruction.

You say that the teacher is using the performance for entertainment purposes, not educational purposes. This use fails to meet the requirement of five above. Failing to meet any one of the five requirements of section 110(2) necessitates public performance rights or permission from the copyright owner. Additionally, the terms of service of YouTube limit the places YouTube videos can be used. Not adhering to the terms of service can be construed to be not legally acquired, therefore your use does not meet the requirement of four above, as well. Your teacher can try to get public performance rights from the producer, but the producer may not be the copyright owner. You always want to verify the copyright owner so you know that the permission you receive is valid.

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.