Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?

Copyright

from the but-what-does-that-mean dept

As of this year, James Bond is in the public domain in Canada. Since the term of copyright in Canada is the life of the author plus fifty years, and Ian Fleming died in 1964, the copyrights in all of his James Bond novels and short stories expired on January 1st. That means that Canadians can freely make copies of the Bond novels, make their own film versions of them, and write stories featuring James Bond in his role as a member of the British Secret Service. (It doesn’t mean they can distribute copies of the movies at will, though?those copyrights exist separately from those of the books.)

US fans of the series shouldn’t start casting their home adaptations of Thunderball just yet, though., Since copyright terms in the US were retroactively extended in 1998, we have to wait another 20 years before Bond hits the public domain in the US.

But Bond is nothing if not a world traveler, and Canada is just a step away. What happens if Canadian reprints of a Fleming novel make their way here?

The New Books Can Come In

The first sale doctrine (embodied in the US Copyright Act here) says that if a copy of a work is lawfully made, someone who owns that copy can legally import it into the United States. So according to that law (and bolstered by a 2012 Supreme Court decision), someone should be able to fill a bag with paperback Bond novels in Toronto and bring them back into the US for sale. (Note: this may not stop that someone from getting sued, but they should win under the current law. Eventually.) The margins on this sort of activity seem like they would be low enough that I doubt that US branches of book publishers are too worried about declining sales of the novels.

The same should be true of audiobook versions?with one odd caveat: if I try to play the audiobook to a public audience, or if I arrange a public reading of one of the stories, I’d be infringing the copyrights of the works. That’s because while the law lets me distribute copies that I own, I still can’t make public performances of the copyrighted works. We’ll get into this more as we talk about film adaptations.

The New Films are more Complicated

But enough about the books; what about film? Bond might have his origins in text, but he’s more famous as a screen character. What if a Canadian made a new film based upon the Fleming novels? So long as they take nothing that came from the existing movies, but did a novel-based reboot of sorts, they’d be in the clear in Canada. But could copies of those new Canadian Bond movies come into the US?

While making an adaptation of a copyrighted work would be an infringement, someone merely importing a copy of that adaptation isn’t the one making the adaptation. Their copy is already made.

Let’s assume that all of the adapting is being done in Canada. Since Bond is in the public domain there, the adaptation is lawfully made. Now, let’s assume that the new filmmakers produce an authorized DVD?that’s lawfully made too. So if I buy a few copies of that across the border and come back with them, I should be in the clear just as much as with the paperbacks.

Showing a Boring Film Would be A Problem

But what happens when I try to arrange a public screening of one of these movies? Things get a little weird. If the “adaptation” were something as direct (and as dull) as a film of someone reading the novel aloud verbatim, I might have a problem. See, while the first sale doctrine gives the owner of a lawfully made copy the right to distribute it without permission, making a public performance of that same work is still prohibited. So even if I had a legally made Canadian copy of Dr. No, I still couldn’t read it aloud as a public performance in the US without permission. It doesn’t matter where the particular copy I’m reading from was made; the words I’m saying are the same, and still infringing.

Our boring “adaptation” of, say, Alex Trebek reading the book aloud would likely be analyzed under the same framework. In this case, the adaptation, while a new work, still embodies the old one. If I exhibited this movie, I’d likely be sued for publicly performing the original novel, not for exhibiting the movie, which would, in Canada, have its own copyright, with completely different copyright owners.

Showing an Interesting Film May Be

But movie adaptations of James Bond are not exactly known for their fidelity to the books. What if the new Canadian production of Goldfinger included only the occasional phrase from the original, or even had all of its dialogue rewritten, had scenes omitted or amended, and its setting changed?

Sure, it’s a derivative work, but remember, that’s not the question. What is at issue is whether or not you can discern a performance of the original novel inside the elements of the new movie.

To see whether someone’s “performing” the novel by exhibiting the film, you first have to ask whether or not the copied bits, taken as a whole, are protectable. Things that aren’t protectable include general ideas, or standard plot tropes, or stock characters. If, in adapting the novel into a film, I’ve removed all but these, I’m probably not infringing the original novel.

You then have to ask if the performance of the film contains those copyrightable elements in a way that is encompassed by the rights of the original novel. If the new movie still resembles the novel enough to be considered an actual adaptation, though, it seems like it might still carry within it enough of the original novel for my public screening to be considered at least a partial “public performance” of the novel, and thus infringing.

But fidelity to the original story isn’t necessarily a hallmark of the Bond oeuvre. The underrated 2008 Quantum of Solace movie bears zero relation to the Fleming short story from which it takes its title, and it’s hardly the first Bond movie to fit that pattern. What if our Canadian filmmakers make a James Bond movie, title it The Spy Who Loved Me, and make it about a plot to hack British military drones instead of a tense standoff in an Adirondack motel?

Which Bond is Best? (Or Why Character Copyright Makes No Sense)

Having removed the potential infringement from the book, we’re left with whether the mere use of the character known as “James Bond” is enough to support a copyright infringement based on public performance in the US. Showing the Canadian movie arguably is a “public performance” of the James Bond character, which is still in copyright in the US?but what does that even mean? The character isn’t a known series of words, sounds, or images; it’s in many ways more akin to an idea, and ideas in themselves are definitely not copyrightable. But the current state of the law allows characters to be separately copyrightable in their own stead.

This, for better or worse, is where a court’s more subjective sense of literary merit might have an effect on the outcome of a case. If it thinks Fleming’s characterization of Bond is flat, it might classify him as a sort of stock character of a secret agent and find that simple concept uncopyrightable. But it doesn’t take a ton of shared details to make a stock character something that the courts will recognize as copyrightable. (The fact that many different actors with different styles have played adaptations of Bond could cut both ways here: in indicating that the scope of the copyrighted Bond character is broad, or, conversely, that he’s just a flat stereotype?a stuffed tux.) The fact that our Canadian-produced James Bond shares the same name and job description as Fleming’s might be enough, in this case, to block screenings of the film in the US.

But Wait, There’s More!

Don’t worry, it gets weirder. Imagine a copy of this new Canadian Goldfinger movie is imported into the US, and then copied here, without the permission of the Canadian filmmakers. Let’s assume that the copy wasn’t made as a fair use. Can the Canadian filmmakers sue the US copier?

Actually, the answer seems to be yes. While the Canadian moviemakers might have created a work that would be infringing to exhibit in the US, since the movie takes elements from works with an active US copyright, they also will have added copyrightable expression of their own in creating the film. And while someone taking from the Fleming-created expression embodied in the movie might not be able to be sued by the Canadians (though they’d certainly be open to a suit from the Fleming rightsholders), taking from their newly added creativity opens you up to a suit from the new creators. Basically, making unauthorized copies of the unauthorized Canadian James Bond movie could get you sued by two different people.

So there you have it. James Bond is in the public domain in Canada, and that single fact throws into relief a number of open questions and absurdities in the first sale doctrine — what parts of a work can and can’t be protected by copyright, how characters can be copyrighted apart form the works in which they appear, and how infringers can be rightsholders in their own right. It’s a wealth of complexity and gray areas, in many ways in desperate need of a solution.

Clearly, that solution is to just reduce our copyright terms to match Canada’s.

Filed Under: canada, copyright, distribution, first sale, james bond, public domain, public performance