Universal Studios' Dracula and Frankenstein's Entry into the Public Domain

2027 should be a big year for fans of Universal Classic Horror Films, as both Dracula and Frankenstein, both being released in 1931, should enter the public domain on January 1 of that year. But maybe Dracula's entry into to public domain may not be as soon as you might think.

As the Copyright Act of 1976 and the Copyright Term Extension Act of 1998 combine to state, works copyrighted and renewed in the US from 1923-1963 are granted a 95 year term of protection from the first year of their publication. As 1931 + 95 = 2026, what may the holdup be? The film version of Dracula may be considered not just a derivative work of the novel but also the 1927 Stage Play by Hamilton Deane and John L. Balderston which premiered on Broadway. Copyright protection in a protected original work extends to a derivative work (review the copyright status of the film "It's a Wonderful Life" for this recognition). The 1927 play was Balderston's rewrite of Deane's 1924 play, which was performed in England. Universal bought the rights from Balderston and Deane to use the copyrighted elements of their plays in its film. Both men are credited on the film's title card (and the Spanish version's too.) 

The plays by these two men introduce several elements that were adapted into the film. New traits for Dracula as a character include the polite manners allowing him to interact with civilized society and the formal wear with a full-length Inverness cape, for example. The second half of the film draws heavily on the events, settings and dialog of the 1927 play, which incidentally had Bela Lugosi, Edward Van Sloan and Herbert Bunston in the cast of both the Broadway production and the film.

Balderston died in 1954 and Deane in 1958. The Balderston version was copyrighted in 1927 and a possible revised version was copyrighted in 1933 and both were renewed (1954 & 1960), so they are subject to the duration periods for published works, 95 years. While this may have an impact on when the text of Balderston's play may enter the public domain, a 1933 version (if different from 1927) has no impact on the film released two years prior.

Deane's lifespan, however, does present an issue for people counting down the days when 1931's Dracula enters the public domain. We must consider that Deane's version of the play was not published during his lifetime in the US as it was intended to be performed only for British and possibly Commonwealth audiences. Performance of a play does not equal publication of that play, the script must be made available for sale for the play to be deemed published.  can find no entries in the Catalog of Copyright Entries from 1924 through 1927 which indicate he registered it as an unpublished work. If Deane's play was made available for performances outside his acting company, then it would only have been available in the U.K. and Commonwealth countries. Deane's lifespan may thus add an extra two years to the public domain date due to the original work being unpublished, which gives it a term of life of the author plus seventy years. 

A version of the Deane play (along with Balderston's, which had been published as far back as 1933) was published in David J. Skal's 1993 book "Dracula: The Ultimate, Illustrated Edition of the World-Famous Vampire Play" combining the original 1924 text with text from a 1930 revised script. This brings me to § 303 of the 1976 Copyright Act regarding unpublished works; if an unpublished work was published on or before December 31, 2002 it will have statutory protection until the end of 2047. If this 1993 book constitutes publication of Deane's 1924 play, then the time when Dracula may enter the public domain in the US may be significantly longer than people realize. The heirs or assigns of the estate of Hamilton Deane may be able to assert a copyright claim in this instance. 

If, on the other hand, if the 1927 play and 1931 film are considered publications of Deane's work, then Deane's lifespan has no impact on the public domain entry date for the film. The Copyright Office has some guidance on this issue which may assist us. In Chapter 1909.1 of the Compendium of U.S. Copyright Office Practices, "Unpublished Work Embodied in a Published Work", it says:

"An unpublished work is considered published when it is embodied in another work of authorship that has been published, but only to the extent that the unpublished work is disclosed in the published work.

Examples:

• When an unpublished screenplay is used in the creation of a motion picture, the elements of that screenplay that appear in the motion picture are published when (i) copies of the motion picture are distributed to the public, or (ii) when copies of the motion picture are offered to a group of persons for further distribution, public performance, or public display."

While this Compendium is not a statute, a court decision or even a regulation and does not have the force of law, it can have a persuasive character. More importantly, the principle expressed therein has been recognized, sometimes nearly verbatim, by the United States Circuit Courts which have considered the issue. Shoptalk, Ltd. v. Concorde-New Horizons Corp., 168 F.3d 586, 592 (2d Cir. 1999); Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1235 (9th Cir. 1998); Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517, 520 (7th Cir. 1996); Classic Film Museum, Inc. v. Warner Bros., 597 F.2d 13, 14 (1st Cir. 1979). If the Compendium's rule were to apply then both the 1927 play and the 1931 film were authorized publications of Deane's 1924 play and the protectable elements in common between the three works would be subject to the copyright durations for registered and published works. 

The facts of the Batjac case in particular, which I have discussed here, are indistinguishable from this situation, or are they? In Batjac the producers did not try to register a copyright until after the film had fallen into the public domain due to lack of renewal. With Dracula there was an effort to copyright the 1924 play before the film had fallen into the public domain. The argument that the publication of the play under copyright in 1993 covers the film probably fails because the play had been already published by proxy by the copyrighting of the 1927 play, the 1931 film or the 1933 book that included the 1927 play and it had not been registered as an independently copyrightable work prior to the twenty-eight year period in which it could have been under the 1909 Copyright Act, § 23. Therefore, Deane's lifespan and the 1993 book would then only have relevance to the copyright of the text of his original 1924 play.

I might note that Bela Lugosi's estate has a property right to his name, voice, likeness etc. under California's Celebrities Rights Act. In fact it was the court case Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979), which held that personality rights of an individual ended upon his or her death, that provided the impetus for that statute's enactment in Cal. Civil Code § 3344.1 That right lasts for 70 years after the celebrity's death. (It did not definitively protect Lugosi until the law was retroactively amended in 2007 to cover all celebrities who died from 1915 onwards). He died in 1956, so any claim his estate may have will, coincidentally, terminate in California at the same time as the film's 95-year copyright term on which his claim to fame principally rests. 

The time period for celebrity likeness rights does not apply equally from state to state, and some states have longer periods of time. The protection can last for up to 100 years for Indiana and Oklahoma and the protection can be enjoyed indefinitely in Tennessee so long as there is continued exploitation). Some states (Georgia, South Carolina) have recognized a post-mortem right of publicity by judicial case law which have not articulated the length of which the protection may last. So Lugosi's likeness may not be free to exploit everywhere in 2027. Other states do not recognize that the right of publicity survives the death of a celebrity (or public figure) and others do not indicated whether they recognize a right of publicity (or privacy) after a famous person's death.

The right in the state of Washington, unlike some other states like California, does not depend on the domicile of the celebrity at the time of his or her death, so Lugosi's rights would be protected for Washington's term of 75 years from his death. Indiana's rights do not appear to be retroactive prior to 1994 deaths but Oklahoma's is retroactive to 1936. The Oklahoma statute is silent as to whether the right depends on the individual residing in that state upon his or her death whereas the Washington statute is explicit that the deceased celebrity's residence does not matter.

Lugosi's rights of publicity, including his name, likeness and distinctive voice and mannerisms are being actively exploited at the time of this writing. This figure is one of many licensed figures and captures the man particularly well in my opinion. Would that continued exploitation prevent distribution of the film if the film falls into the public domain in a year and a half? Probably not. First, it was acknowledged in the Lugosi v. Universal Pictures that Lugosi assigned his rights when playing that part to the studio. It would be hard to argue that Lugosi has greater rights than the studio which paid him for those rights when the studio's rights expired. The rights to publicity in a likeness are a species of trademark and it has been established that even though trademarks may be indefinite in their time, copyrighted works which incorporate those trademarks are not. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)

What about Frankenstein? So many of the same players revolve around that film as well, but the facts are a little different. Universal's Frankenstein is not only derived from Mary Shelley's 1818 novel but also from a 1927 British play from Margaret "Peggy" Webling. That play was produced by Deane and rewritten by Balderston in 1928 for an unproduced American version of the play. Universal bought the rights from Webling and Balderston. Webling died in 1949 and Deane's lifespan does not appear to be relevant in this scenario. However Balderston's play was never published as far as I can determine and Webling's play may not have been published until last year in the US ("Peggy Webling and the Story behind Frankenstein" 2024 by Dorian Gieseler Greenbaum & Bruce Graver), so the "published before 2003" rule discussed above does not apply based on the information I have. Moreover, any rights Webling and Balderston's estates may have to their unpublished work would not apply to the extent their work was published in the Frankenstein film.