On June 11 2012 an article by Vinay Menon appeared in the Toronto Star titled “Anne of Green Gables to be remade for TV”.  The article reports that Kate Macdonald Butler, granddaughter to author Lucy Maud Montgomery and president of the family-owned company Heirs of L.M. Montgomery Inc., will be centrally involved in a new television series based on Montgomery’s classic Canadian novels.  Macdonald explains, via Menon, that the family has had legal difficulties with Sullivan Entertainment, the company that produced the original 1985 miniseries based on the Anne novels.  These difficulties explain why the family has not engaged in a new Anne miniseries project until now.

Then comes a shocking statement: “The television rights quietly reverted to the family four years ago.”  This statement desperately begs the question: what “television rights” could possibly remain in a novel whose author died over 70 years ago?

Reading between the lines, it appears that the family had a contractual agreement with Sullivan that prevented them from collaborating with another producer for a set period of time and that this agreement has now expired.  This, however, is a far cry from resuscitating “television rights” of the sort that in any way should prevent anyone from making an Anne of Green Gables television series without the family’s cooperation.  After all, the copyright term in all of  the Anne novels expired in 1992, fifty years after the death of the author.

I do not think I am being overly cynical in suggesting that this slip is deliberate on the part of the family.  After all, the heirs have worked hard since 1992 to confuse people about the scope and basis for their ongoing control of the way the books (or, in their terms “images of Anne”) are used and marketed, mainly through trademarks, official marks, and licensing contracts. The Province of PEI is in cahoots with this scheme, mostly for public relations reasons so as to protect their Anne-themed tourism industry.  The heirs have been litigious, and engage in legal bullying via letters from lawyers: they are basically the RIAA of the pinafore set, standing on shaky legal ground but insisting on control nonetheless.  Most people acquiesce.

So it disturbs me when news reporters promote the idea that the heirs still have “TV rights” to sell and don’t question this assertion.  As Menon writes, “with the TV rights back in the family, Butler set out to fulfill a long-time dream of turning her grandmother’s fiction… into a series.”  But there are no “TV rights” left to go back in the family – indeed all that has been regained is the family’s right to provide their contribution and approval contractually. That is a completely different legal animal than “TV rights”.

There are grave consequences to the public domain when this type of confusion is allowed to proliferate.  Eric Volmers, entertainment reporter for the Calgary Herald, also published an article on the remake (“’More Honest’ Anne of Green Gables story in the works”), wherein he reports that Macdonald Butler has protected her grandmother’s legacy from “peculiar marketing ideas” like Anne of Green Gables wine, shot glasses and ashtrays.  Other “oddball suggestions”, he notes, include bringing Anne into the 21^st century:  “I’ve had a few real dillies” Macdonald Butler is quoted as saying, “They wanted to put Anne of Green Gables in New York City, with a band.”  Volmers does not mention that any author has actually been free to do whatever “oddball” thing they like with Anne since 1992.  Volmers’ article has been reprinted  in several other Canadian newspapers.

I have argued elsewhere that the heirs stand on questionable ground when they squelch the sale of Anne merchandise they feel contradicts Anne’s wholesome image in the novel (hence no wine, shot glasses or ashtrays).  Menon quotes the producers of the new series as saying that Anne is “one of the very few Canadian brands that is recognized around the world.” It is troubling that neither reporter here notices that the term “brand” is being loosely used here to apply to a character in a novel, and that  there is no legal justification for empowering the purported owners of such a “brand”  the ability to veto projects that make use of the Anne character from the novels.   Anne in New York with a band?  While I’m not convinced this particular idea would work, authors with such “oddball” ideas have every right to go for it – indeed the same rights as Macdonald Butler has to fulfill her own vision for a new 19^th century Anne: no more, and no less.

Dr. Andrea Slane is an Associate Professor in the Faculty of Social Science and Humanities at the University of Ontario Institute of Technology. Prior to joining the Faculty in 2009, Dr. Slane was Executive Director of the Centre for Innovation Law and Policy at the University of Toronto, Faculty of Law.

Posted in Contracts, Copyright, Feature Post, IP, Literary Works, Ownership