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Voices Spring-Summer, 2003:
Click on the cover for the Table of Contents. Read the Lawyer’s Sidebar column, “Unfair Use of Folklore” by Paul Rapp here.
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Volume 29

Unfair Use of Folklore

Lawyer's Sidebar What happens when somebody copyrights a version of an old folktale? Is the folktale taken out of circulation for everybody else for the duration of the copyright (which, thanks to our Congress and Supreme Court, is now basically forever)? Disney, which made films of numerous folk and old tales (Cinderella, Snow White, Pinocchio), has been accused of doing precisely that, since the company holds copyrights granted in the mid-twentieth century that are now going to last until well after 2020.

But Disney hasn’t stolen Snow White. When someone creates a new version of a folktale or anything that is in the public domain, the new version does carry a copyright, but this copyright does not cover the new version in its entirety. The only things protected by the copyright are the new parts of the folktale—the embellishments, the additions. Everything that existed before the new version was made remains in the public domain, for all to use.

So Disney has a claim to the visual aspects of the characters, the songs, and perhaps the exact wording and sequences of certain events in its animations. But anyone can still tell the Snow White story; anyone can make another animated film of Pinocchio, so long as the new work doesn’t take any of the protected parts of the Disney film. Don’t have dwarfs singing "Hi-ho! Hi-ho!" unless you want to be paid a visit by Disney’s attorneys.

A few years ago a pair of professional storytellers came to me because they wanted to retell what they knew to be an ancient West African story. However, the only version they could find was in a children’s book that carried the author’s copyright notice. They weren’t sure what parts of the story were traditional and what parts might have been added by the author of the book. They planned to make their own adaptation of the story, but they knew that embellishing a copyrighted work is as much infringement as copying the work verbatim. And they’d tried to contact the author, without success.

What should they do?

My job is not only to tell my clients what the law is, but also to help them accomplish what they seek to do. I often find myself saying, "Maybe it’s infringement, but go ahead and use it anyway."

And that’s what I told the storytellers. I didn’t think that there was much likelihood of their getting into any trouble for adapting the copyrighted version of the African folktale. First, the author (or the publisher) of that version would have to find out about the storytellers’ use. Then the author would have to determine that the storytellers were using the protected portions of her version (if indeed there were any), which means she would not just have to hear about the storytellers, but have to hear them, in person or on the radio or on a recording. Next, the author would have to be upset enough about the storytellers’ use to want to do something about it.

Perhaps the author wasn’t claiming any ownership rights for the version of the story in her book. The author’s copyright notice might have been relevant to other stories in the book, or to the arrangement of the stories, the introductions, and the illustrations. The author might be more concerned about someone taking the entire book than about professional storytellers’ using her version of just one story. Or she might be a fervent folklorist herself, disinclined to go after fellow folklorists for carrying on the tradition.

For her to call her lawyers and pay for their time, she would have to consider how much damage the storytellers were causing. Something between slim and none? Even in the worst case, the storytellers would receive a stiff and formal letter concerning exclusive rights, statutory damages, ceasing, desisting, blah, blah, and blah. Such a letter would mean it was time to stop using the African story. Only if the storytellers were making a fortune on this story (selling movie rights to Spielberg, perhaps, or licensing a line of action figures) would there likely be a serious legal issue.

Folktales cannot be plucked out of general circulation by a simple copyright. However, copyrights do wreak havoc on the folklore process. Folklore is often an iterative process: stories morph as they are told and retold and as they filter through different cultures. The process comes to a grinding halt if every time someone tweaks a story, the tweaks are copyrighted and declared off-limits to everybody else for a hundred years or so. Disney took the Snow White story and did the definitive version of it. Should they own this version, maybe the only version that matters, for ninety-five years? Why should my storytellers go through conniptions over the telling of a particular version of an African story that is at least eight hundred years old? Should anyone own any version of these stories?

Disney would say (and actually has said, ad nauseum) that the ninety-five years of exclusivity provides the financial incentive to make Snow White and Pinocchio in the first place. Although there is some truth to this, the failure to recognize the folk tradition in the current scheme of things constitutes a lack of balance. Should there be a folklore exception in the copyright law? Perhaps a shorter copyright period for works derived from public domain material, or maybe some type of folklore "fair use" exception? Unfortunately, such changes would require an act of Congress, and as recent events have shown, on copyright matters Congress listens to Disney. Hi-ho! Hi-ho!


Paul Rapp is an attorney with the Albany law firm of Cohen Dax & Koenig. He also teaches art and entertainment law at Albany Law School. Write to him or the editor of Voices if you have a general-interest question or topic you’d like to see discussed in a future issue.Photo of Paul RappPhoto: Buck Malen.

Folklore is often an iterative process: stories morph as they are told and retold and as they filter through different cultures. The process comes to a grinding halt if every time someone tweaks a story, the tweaks are copyrighted and declared off-limits to everybody else for a hundred years or so.

This column appeared in Voices Vol. 29, Spring-Summer 2003. Voices is the membership magazine of the New York Folklore Society. To become a subscriber, join the New York Folklore Society today.

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