Public Domain of The Living Dead

Source: Screenshot of Night of the Living Dead (1968) opening credit / Public Domain

Natalie Bravo

Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

 

Halloween season is just around the corner and who doesn’t love a good zombie movie? While many might rather shy away from frightening films, dedicated modern-day zombie enthusiasts live among us. The multi-billion-dollar zombie craze in horror today was popularized by George A. Romero’s Night of the Living Dead, an independent film released in 1968. The film curiously entered the public domain due to a slight error, allowing widespread accessibility and reproduction. The film made over $30 million on a $114,000 budget, with the creators seeing little to no share of the profits. The release, paired with the copyright error, changed the horror movie genre and the independent film industry forever.

At the time of the film’s theatrical release, the US Copyright Act of 1909 required notice to maintain enforceable federal copyright protection. The original distributor, The Walter Reade Organization (WRO) changed the name from Night of the Flesh Eaters to avoid confusion with the 1964 film The Flesh Eaters. In doing so, WRO accidentally failed to add the copyright indicator (©) onto the prints. The symbol was not in the opening credits of the movie, the image above – that’s it. Imagine that! Without the symbol and the year of publication, the law specified that you lost copyright and the work enters the public domain forever. While a first print with the original name included the symbol, it was lost in a flooded basement incident that damaged the 35mm print. Romero later attempted to sue the original distributor who made the error, but the organization declared bankruptcy in the 70s and dissolved. Today, copyright notices are no longer required thanks to the Copyright Act of 1976 (US); sadly for Romero though, the act does not extend protections to his 1968 film.

Due to the oversight, anyone could copy and distribute the film for free. Hundreds of copies of the film were manufactured in different formats, ranging from VHS, Betamax, LaserDisc, DVD, and Blu-ray throughout the years. (A lifelong Living Dead fanatic and collector, Geoff Turner, has created a project called Night of the Living Tapes, in an effort to catalogue all of the releases of the film. Over a hundred fans donated almost $20,000 in a Kickstarter campaign to assist Turner. He even has checklists available for download on his webpage for those with the spirit and the storage!)

Before Night of the Living Dead, zombies were rarely a media subject – they were typically only seen in Caribbean folklore, and not portrayed in the way they are today. Romero’s film created a different type of zombie, a re-imagined, brain-eating, re-animated corpse who could be quite literally anyone unlucky enough to be bitten. Romero’s specific traits and rules associated with his zombie characters that have lived on through the years. The film’s entry into the public domain allowed it to be licensed free of charge to any distributor. It also allowed non-affiliated remakes and sequels to follow. Romero could not own the copyright in his specific zombie caricatures due to the mistake, and therefore could not stop anyone from including the same interpretation in their own films. The Walking Dead, Game of Thrones, Zombieland, and many more could not exist in the same way today – or would have had to be licensed by Romero, had the distributor correctly added copyright notice. The Walking Dead comic author almost named his series Night of the Living Dead and would have been completely free to do so, without having to pay Romero anything.

While Romero and his team expressed regret at the error, they subsequently agreed that the mistake allowed them to garner popularity and recognition. In a 2010 interview, Romero stated “But that film really gave us our careers. I have no complaints.” The filmmaker passed away in 2017, but not before creating official zombie sequels and inspiring countless independent filmmakers and horror fans alike. Suffice to say, public domain means the zombie genre refuses to die. If interested, check out Night of the Living Dead for free on most streaming platforms, or the version from Criterion Collection restored by the Museum of Modern Art and The Film Foundation.

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