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I just had to say that I disagree with about 98% of what Dave from the Cheap and Dirty Podcast said on this episode of MOZ about why Night of the Living Dead is so popular. I think a lot of his philosophy regarding copyright law is backwards. Also, any success the film achieved could have been earned regardless of whether Romero and company had retained a copyright. The only difference is that they didn’t get paid anything at all.

For one thing, plenty of people were exposed to Romero’s zombie films well after the fact. That is, after Night of the Living Dead was relegated to late night television showings. Also, Dawn of the Dead, though unrated and restricted, can be said to have provided more exposure for people who didn’t even know about the first film because of the spotty distribution. Romero and company were paid for Dawn of the Dead, even later when it enjoyed a renewed interest on video. And many more fans discovered those films on video, and all the other releases except NotLD were under copyright.

In fact, I hear comments all the time on podcasts and message boards from people who say they didn’t discover the films in the order that they were made. Likewise, many of them expressed the opinion that they had trouble relating to black and white film, and preferred the more recent films based on this. So here is another reason why NotLD was not necessarily influential.

That was a very old quote by Romero about who ripped them off, as they didn’t expect to have to change the name of the film, and thus everyone overlooked the legal necessity of adding a copyright to the new title. It took years for them to piece together what exactly had happened.

So I doubt that Night owes it’s populaity solely to the fact that it was public domain, nor do I think Romero’s career was based on that fact. It MAY have provided a little more exposure to people who decided to watch it based on the fact that it was available at a cheap price. But the otehr films were not, and as I said those films were not necessarily discovered based solely or even mostly on the exposure of Night.

I support Russell Streiner and John Russo’s efforts to resecure the copyright and get at least some of the money they should have received in the past for distribution. I don’t think they should bother going after everyone, like the independent DVD publishers, as that won’t solve anything. But they are entitled at least to resecure future publishing rights.

In any case, the most important thing I have to say is that the idea that copyright law can be proven to be completely wrong because of one example of what turns out to be someone who managed to turn lemons into lemonade and boost their career in spite of loss of rights, is an absurd notion. Likewise the idea that the film’s popularity is purely due to the film being in the public domain. It may have played some small part, but saying that this proves copyright law is wrong is a severe error in logic.

Add to that idea that copyright law is effective according to someone’s opinion of whether a work of art “sucks” or not is the most absurd notion of all. This is the reason we have laws in the first place, to make sure all people are treated as close to fairly as possible regardless of the opinions and tastes of anyone else, especially the lawmakers themselves. It doesn’t matter whether the film “sucks” or not, everyone is entitled to the same rights.

Here’s another thing that bugged me. One of the other opinions Dave offered is that copyright law only protects films that suck. Then he goes on to say that if the concept of Romero’s classic zombie “model” were copyright protected, we wouldn’t have all of these zombie fims today. Bullshit.

One, it’s possible to come close to that concept without risking enough voilation for a solid copyright defense trial. In other words, there would still be plenty of zombies. And then again, why the hell not pay Romero? For one thing, everyone who has known and worked with the man describes him as being the coolest guy and the easiest to work with of any director they have encountered. I’d bet my last buck that George would probably have been extremely reasonable about sharing his property rights, and may have even emulated his pal Steven King and gave them away for the price of a cup of coffee.

Two, if you can’t afford to pay the rights to a property, filmmakers should do what any creative person should do: come up with your own new ideas! Do we REALLY need hundreds of movies featuring the exact same zombie archetype? Well, this may be the wrong place to challenge that view since I’m sure many zombie fans would say they want to see as many as possible. That’s fine, but you probably would have even if Romero and company kept their copyrights. And if not, sorry to sound cruel, but so the smurfin what? MAYBE we’d get a GREATER VARIETY of zombie films.

I don’t suggest that copyright law is perfect by any means, but you can’t suggest that it’s completely unfair based on these notions.

Anyway, sorry for the rant but this was bugging me.

Fake Larry,
Thanks for your response, its obvious you’re passionate about the subject of copyright which makes you either as boring or as quirky as I am.  Before I respond to your point though I do want to point that we’re dealing in speculation, while you and I can assert what we think there’s more than enough room in alternate reality for us to both allow that we could be wrong.

The only bit in your response that I want to directly address is this:

One, it’s possible to come close to that concept without risking enough voilation for a solid copyright defense trial. In other words, there would still be plenty of zombies. And then again, why the hell not pay Romero? For one thing, everyone who has known and worked with the man describes him as being the coolest guy and the easiest to work with of any director they have encountered. I’d bet my last buck that George would probably have been extremely reasonable about sharing his property rights, and may have even emulated his pal Steven King and gave them away for the price of a cup of coffee.

Two, if you can’t afford to pay the rights to a property, filmmakers should do what any creative person should do: come up with your own new ideas! Do we REALLY need hundreds of movies featuring the exact same zombie archetype? Well, this may be the wrong place to challenge that view since I’m sure many zombie fans would say they want to see as many as possible. That’s fine, but you probably would have even if Romero and company kept their copyrights. And if not, sorry to sound cruel, but so the smurfin what? MAYBE we’d get a GREATER VARIETY of zombie films.

We might get a greater variety of zombie films, through some quirk of fate.  But experience tells us otherwise.  I refer you to this article printed in the financial section of the New Yorker.  In it the author refers to a concept called the law of the anti-commons.  The idea is that individuals over value their contributions to a work and the end result is a grid lock in the creation process. The prime example used is that of the airplane.  For decades you couldn’t build an airplane because the different parts of the plane that had been patented by various individuals who refused to license their work.  It took world war I and an act of congress to change this.

I suspect if NOTLD had been copyrighted and if Romero, his production company, distributor or whoever had managed to have even a half credible claim to the Romero Zombie it seems very doubtful we’d have more zombies, but less, as each person who came along after with a different permutation does exactly the same thing.  In the end we end up with five films, and lots of law documents, but not much in the way of creative work.

The author explains:

Recent experimental work by the psychologist Sven Vanneste and the legal scholar Ben Depoorter helps explain why. When something you own is necessary to the success of a venture, even if its contribution is small, you’ll tend to ask for an amount close to the full value of the venture. And since everyone in your position also thinks he deserves a huge sum, the venture quickly becomes unviable. So the next time we start handing out new ownership rights—whether via patents or copyright or privatization schemes—we’d better try to weigh all the good things that won’t happen as a result. Otherwise, we won’t know what we’ve been missing

Anyway, thanks for listening Fake Larry, and for being motivated enough to leave some thoughts, I appreciate it.

I wanted to post some examples but I don’t have the time lately. Basically, I wanted to clarify that mechanical engineering patents are not the same as copyrighting works of art.

Also, copyrighting the film Night of the Living Dead is not the same as legally preventing others from making zombie movies. It wouldn’t matter at all unless the film was so close to the concept, characters, and everything down to proper names of people and places. Even then, the court would have to determine intent, and this would be provided it’s not satire, which is legal.

You’ve heard of films entitled “Bram Stoker’s Dracula”, they’re not called “Bram Stoker’s Vampire”. Neither Stoker nor his decendants own the concept of vampires, and he didn’t even create that monster, he was inspired by folklore. Anyone can make a vampire movie, but using proper names like Dracula can put you in a difficult place.

If Romero had originally secured the rights to NotLD as he meant to, we would still have plenty of zombie movies.

Just to throw a bone in here, how do the two of you react to the lawsuit filed against Capcom for the game “Dead Rising” by one of the rights owners of Dawn of the Dead ? 

LD

Dward-man, do you have any links? I’d like to read up on it, as I need to know more about the exact nature of the case before commenting on it.

That’s exactly the sort of thing I’m talking about.  A movie from 1978 is preventing the production of a video game in 2008 that uses similar ideas (zombies in a mall).  Capcom is taking the position that, “any similarities between Dead Rising and George A. Romero’s Dawn of the Dead are based on the wholly unprotectible idea of humans battling zombies in a shopping mall.”  If you can be sued for infringement over zombies in a mall based on DOTD, what could you have been sued for had NOTLD not gone public domain? 

It may have been on MOZ or maybe the Midnight Podcast, but one of them brought up the bit of trivia that Romero threatened Heinzman with a lawsuit when he was producing one of his zombie rip off movies.  Heinzman asked for some justification for it and never heard back, probably because NOTLD was public domain.

Copyright law isn’t just “not perfect” its pretty much broken, and at this point is used to maintain the status quo more often than not.  Thank God the SPO lawsuit against linux was dismissed but essentially what we have going on at this point is that large companies are copyrighting/patenting/trademarking everything they can think of, and then suing anything that even slightly resembles their IP portfolio out of existence.  Its creating a gridlock that insures that if you aren’t already one of the power players in a particular field, you’re never going to enter that particular field without selling yourself out to them.

I will try and put a link to what little I know here.  It bothers me because I feel fairly certain we will not be getting another dead rising game because of it.

http://www.escapistmagazine.com/news/view/84794
The Escapist : News : George Romero Unaware of Dead Rising Lawsuit

LD

I think it’s best to keep in mind here that, just like in congress, people are suing or otherwise legally challenging others all the time. We saw a relatively huge spike in this litigation-happy culture in the 80s. Kids started suing their parents during that decade. Some had legitimate cases and some didn’t. Some of them won and some didn’t (take a guess which ones were featured most prominately in the news).

I want to stress that you also have to look at the number of times people actually WIN these cases, vs the losses, or even the frequency that the court throws it out altogether.

Sure, they can sue, doesn’t mean they’re going to win.

LD, I couln’t get the link to work so I hunted down another example:

http://www.gamespot.com/xbox360/action/deadrising/news.html?sid=6186724

Let’s keep in mind that articles such as these are little more than headlines. There are people in this world who believe they are “informed” after reading an article of two or three paragraphs. I am not one of those people.

That said, here’s a quote from that article that pretty much sums up what I think based on what little information is available:

“On February 12, Capcom sought to preempt possible court action by seeking an injunction against MKR suing over the game.

The injunction declared that “any similarities between Dead Rising and George A. Romero’s Dawn of the Dead are based on the wholly unprotectible idea of humans battling zombies in a shopping mall.”

Capcom also pointed out that every copy of Dead Rising had a disclaimer on the box stating that the game was not related to the George A. Romero movie. It added, “In addition to Dead Rising, there are literally dozens of other video games featuring a protagonist battling hordes of flesh-eating zombies.”

It doesn’t look like they have too strong a case, all things considered. Yeah, this might be a sterotypical example of a greedy corporation, but I don’t see this as evidence that the whole of copyright law should be thrown out. In fact, in this case, it may prove beneficial.

Fake Larry - 19 August 2008 09:39 AM

The injunction declared that “any similarities between Dead Rising and George A. Romero’s Dawn of the Dead are based on the wholly unprotectible idea of humans battling zombies in a shopping mall.”

I just love that a legal document now exists somewhere with those words written on it!

(I love this discussion, gang - I’m sorry I haven’t been around more, and I still have to take more of a back seat here, but maybe this upcoming weekend I can spend some time online here . . . )

I know what you are trying to say but I think this is an example where it doesn’t matter whether Mkr wins the lawsuit or not.  The litigation itself, I believe, will be enough to dissuade Capcom from producing a sequel and may stop other developers from developing other zombie games.  I have an issue of PC Gamer on which the cover states that 2008 will be a year of undead invasion in the gaming world but I have yet to see any of the games on the shelf at best buy (granted I have not been looking too hard).  That bums me cause I would love to see more zombie survival games!

LD

Lord_Dward - 19 August 2008 11:26 AM

The litigation itself, I believe, will be enough to dissuade Capcom from producing a sequel and may stop other developers from developing other zombie games.

Not if they win, or better yet get it thrown out of court.

Remember, suits like this potentially set a precedent. Just how close does one property have to come to be considered a ripoff of Dawn? Where does the similarity begin, and where does it end? If they were to win, are they going to then go after every single one of those other game companies that produced games with zombies in them? There are lots of games that are not about zombies but have monsters in them referred to as zombies. And how many of them adapt certain aspects you find in the Dawn film?

Do they own the concept of flesh-eating undead? Can they get money from every zombie film, book, t-shirt, button, bobblehead?

Will they then demand ownership of the term “zombie” itself, demanding exclusive rights? I’ll give you a hint as to their chances by asking you this: did the term and everything it implies exist in physical form prior to the time included in the rights to the Dawn of the Dead film? Who owns THOSE rights?

Another bit of info to help demonstrate just how tough a battle this would be is all of the conversations you hear on Mail Order Zombie about what defines what a zombie is or is not. If we the fans can’t even settle on specific definitions, what chance do the corporations and the courts have?

There’s a difference between copyright laws as applied to rights to make reproductions or produce copies of Night of the Living Dead the film itself, and the concepts of undead flesh-eaters attacking people trapped in a house or in a mall. And even if it turns out it is close enough for them to win the case, it does not necessarily logically follow that any zombie concept is owned by or exclusive to that company. Copyright laws include distinctions between physical material works, and ideas or concepts.

It doesn’t mean zombie games will disappear.

I agree that certain aspects of copyright law are not perfect, downright flawed, or just plain wrong, but don’t throw out the baby with the bathwater as they say.

I remember this thread. I “dug it up” because I was talking with someone recently about something similar. I forgot to add the updates on the MKR Group v. Capcom example.

I’m not going to link to the stories because the links here get corrupted, but a paragraph in a story on filmesq.com sums it up:

“In an October 10, 2008 opinion, the court dismissed MKR Group’s copyright counterclaim. Using the objective “extrinsic test,” the court found that, as a matter of law, there was no substantial similarity between the Dead Rising video game and the Dawn of the Dead film. The court also dismissed MKR’s Lanham Act counterclaim. Although MKR sufficiently pled “source identifying elements,” the court found that a matter of law, those elements did not violate the Lanham Act. MKR’s remaining counterclaims were dismissed as preempted by the Copyright Act and the Lanham Act.”

Basically, the whole thing pretty much went down as I predicted. The lawsuit was thrown out. And as I also suspected, it was the court’s adherence to copyright law that allowed the case to end without damage to the defense.

Also amusing is this an article from edge-online.com listing MKR’s alleged claims of copyright infringement. Get a load of these gems from that list, I bolded the most hilarious ones:

Both works are set in a bi-level shopping mall
The mall has a gun shop, in which action takes place

The mall is located in a rural area with the National Guard patrolling its environs

Both works are set in motion by a helicopter that takes the lead characters to a mall besieged by zombies

Many of the zombies wear plaid shirts

Both works feature a subtext critique of sensationalistic journalism through their use of tough, cynical journalists, with short brown hair and leather jackets, as a lead male character

Both works feature the creative use of items such as propane tanks, chainsaws, and vehicles to kill zombies

Both works are a parody of rampant consumerism

Both works use music in the mall for comedic effect

Dead Rising’s use of the word “hell” references the tagline for Dawn of the Dead’s release (“When there’s no more room in hell, the dead will walk the earth)

I don’t know how judges can keep from smacking lawyers who write this crap!

So there you have it. Zombie video games are still coming out, nobody is being muscled out of creating zombie-related entertainment (note that there were no “little guys” involved in the above lawsuit), and zombie movies have continued to be released as usual. All due to the proper adherence to law.

And it’s certain by this example that if the copyright to the Night of the Living Dead film were intact as it was intended to be, it still wouldn’t have altered the result of this case.

Wiping out copyright law wouldn’t stop people from being douchebags :D