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Night of the Public Domain

Most people, even those of us who aren’t attorneys, sort of understand how this works. Public domain is defined as the state of belonging or being available to the public as a whole, and therefore not subject to copyright. For those of us working in the arts, from writers, filmmakers, even directors of local stage productions, we all take a crash course in copyright law, sometimes the hard way.

Ever want your character in your novel to hum “Hey Jude” while he’s breaking into a safe? What about having a character in a movie suddenly break into song for comic effect? Both are very plausible and cool character traits. It makes sense, right? Nearly everybody sings in the shower or along with the radio in the car.

Sadly, you’re not actually allowed to have your character simply hum a song, not without paying for it, one way or the other.

What about if your character is watching television?

Everybody watches TV. In fact, it’s strange if the TV isn’t on in your character’s house. The scene in question isn’t necessarily about what they are watching, but the situation mandates they be in the act of watching TV. An example would be, a cop knocks on the door looking for the son of Dad who is watching a show. Since the act of watching TV is passive in nature it’s a great way to express the cop “showing up” is completely unexpected. But what is he watching?

In some cases, the “show” the film characters are watching is purposely fake.

Remember the “I’d Buy THAT for a Dollar!” show peppered throughout Paul Verhoeven’s RoboCop, or the film noir Kevin was watching in Home Alone, you know the one with the famous line, “Take that, you filthy animal!” It was decades before most people realized that the Home Alone film noir film wasn’t actually a real film.

But what a character is watching on TV doesn’t always have to be passive in nature. Sometimes the show drives the plot. A great example of this would be when the wife of a bank robber sees her husband was killed in a police shootout like in Michael Mann’s 1995 crime thriller Heat. The news program delivering the devastating information, often using actual newscasters, is designed to look as real as possible to help drive the emotion of the scene.

Another great example of a TV show, seemingly on in the background, that helped drive the story is in the vastly underrated Jessica Lange drama Music Box.

In the film, Lange’s father, played by Armin Mueller-Stahl, is accused of heinous Nazi war crimes. Lange plays a lawyer who defends her own father against the unspeakable acts in court.

A theme throughout the film is “Do we really know our parents?” Costa-Gavras does a masterful job dropping clues throughout the film like breadcrumbs about the kind of man her father really was.

One such breadcrumb comes with the hilarity he took in watching The Three Stooges with his impressionable grandson. Lange switches off the program commenting about the violence of the show and “how can you watch this?”  What is truly fascinating about the use of The Three Stooges is two-fold, one: most people know The Three Stooges are in the public domain, and two: because they know this, they will most likely dismiss this clue as the filmmaker saving money and not as character/story development.

One TV image that a great deal of filmmakers utilize over and over is the George Romero classic Night of the Living Dead.

The public domain tale of Night of the Living Dead is literally taught in film school. It is one of those stories that when most people hear it, they simply say “Dude.” Back in 1968 when Romero was making a little independent horror film in Pittsburgh with his friends, he had no idea it would help launch a billion-dollar industry that shattered both genre and racial barriers.

The story goes:  The Walter Reade Organization, the original theatrical distributor of Night of the Living Dead, neglected to place a copyright indication on the prints of the film.

Back in 1968 US copyright law required such a notice for a work to maintain a copyright. While one such indication did in fact exist beneath the original title, Night of the Flesh Eaters, the distributor left it out when the title changed later to what we all know now.

So, what does that mean?

It means you can have your characters watch Night of the Living Dead in the background all you want and the George Romero estate can only sigh. In fact, up until recently, you could package the movie itself and sell it as a DVD if you wanted, much the same way people can repackage Mary Shelley’s Frankenstein, written long before modern copyright law existed, and sell it on Amazon if they want. There are literally dozens of different DVD prints of Night of the Living Dead available to buy. It is of course also free online as well.

Night of the Living Dead is used in everything from comedies to dramas, saving producers money and leaving the viewer with a pretty cool example of character development. Of all the places this film is used, one of the most unique I’ve seen is in an independent faith-based film called Shepherd by Aaron Inman.

Inman’s Shepherd, currently making the rounds on the film festival circuit, most recently selected for the Dances With Films Film Festival in Los Angeles, uses the film in the background of a rather emotional scene between the conflicted minister and his wife. Inman uses quite a bit of Night of the Living Dead without ever cutting away. When asked why use a famous zombie film in a movie about a minister, Inman responded, “I wanted to show a rift in their relationship using the imagery of Night of the Living Dead to get the viewer inside the head of the main characters. They are both emotionally being torn apart on the inside, but aren’t sharing what they were feeling with each other. With Night of the Living Dead playing on the TV in the background, it allowed me to show that inner struggle. It helped a lot and it didn’t cost us anything.”

For the record, Shepherd is a beautifully shot and emotional work by Aaron Inman. The film, in glorious black and white, shares bones with Romero’s masterwork, intentional or not.

Night of the Living Dead as a film broke convention and deserves its place in film history as much as any film taught in film school. It remains the guiding light for independent filmmakers who make fun stuff with their friends who aren’t just clowning around. George Romero, like Roger Corman for that matter, due to his chosen genre doesn’t get enough credit for his contribution to cinema.

While one can argue the merits of Romero’s place in the pecking order of what is and isn’t considered art, his undeniable and certainly unintentional contribution to film copyright history is a cautionary tale to all filmmakers to make sure their work is protected.

In the meantime, if you decide to use Night of the Living Dead in your movie, make sure you use it well – Romero deserves it.


Fred Shahadi is an award-winning filmmaker, playwright, and television writer living in Los Angeles.

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