Here’s an example: My understanding is that the character of Dracula is in the public domain. So if I wanted to make a movie telling the story of Dracula, I would be free to do so. Nobody owns the rights to the character.
But suppose I am really impressed by Gary Oldman’s depiction of Dracula in the 1992 movie (the rights of which I assume are still owned by American Zoetrope). So I’m going to dress my Dracula in the same grey suit and top hat, with long hair and sunglasses.
Am I going to face any legal problems? Does the studio own the rights to that particular depiction of Dracula? Does Gary Oldman? Or can I imitate the way an actor played a character in a previous movie without fear of a lawsuit?
complicated question. Consider another monster – Frankenstein. Jack Pierce’s makeup for the Frankenstein monster produced an instantly recognizable image of what “Frankenstein”* should look like. Universal ought to own the rights to that, and sometimes acts like they do. (see here – Frankenstein and Copyright: 5 Things You Should Know | Trademark and Copyright Law )
On the other hand, there are a LOT of times they didn’t assert their brand –
Warner Brothers cartoon depictions of Frankenstein.
The 1940-1954 Prize Comics depiction of Frankenstein ( Frankenstein (Prize Comics) - Wikipedia )
The 1958 pilot Tales of Frankenstein (Tales of Frankenstein - Wikipedia )
All those Warren Magazine (Famous Monsters of Filmland, etc.) depictions of Frankenstein
Frankenstein rubber masks
So there were a lot of uses of the characteristic Frankenstein likeness that hadn’t paid a cent to Universal. I don’t know what the legal opinion of all this is, because people still use many of the features of the Universal monster (flat head, bolts in the neck) without getting dinged by them. I wonder if this is similar to the overuse of trademarks that results in loss of the trademark (like cellophane)
*I use the name “Frankenstein” for the monster too. People have been doing it since the first stage version appeared, so chill.
Speaking of Dracula, Bela Lugosi’s son, Bela G. Lugosi, is an attorney, and will slap a cease and desist order on you if you try to profit from his father’s image without permission.
The younger Lugosi was instrumental in the passage of the California Celebrities Rights Act, which holds that a celebrity’s “personality rights” (that is, the right to control the commercial use of their name, image, likeness, etc.) can be passed on to heirs. As the title implies, this is part of the California Civil Code, and does not necessarily apply in other states.
Depending on how close your depiction of Dracula looks to Gary Oldman, Oldman himself may have the right to object to such usage, to say nothing of American Zoetrope.
I assuming he’s only suing over the use of actual images of his father. Or has he been able to extend it out to other people dressed up like his father?
Nitpick: It was not semi-formal black tie and tuxedo jacket. it was formal white tie and tailcoat.
As I understand it, the British stage production had him in formal wear, for several years before Lugosi debuted in the American stage production. I have read that the character would turn his back to the audience and spread his cape, and then the actor would suddenly drop through a trapdoor in the stage, replaced by a bat puppet.
Tailcoats and capes were standard apparel for wealthy people well into the 1950s, so I think you would be hard-pressed to convince a jury that it was anything unique to Dracula.
You are so wrong … the origin of vampires predates biblical criticism among youths. The street saddlers of trannsylvannia hated a rich banker living alone and socializing only during less crowded hours … many attributed the lack of focus and financial security or stability among his only known truth sayers (claiming he took their lives) and preceded life to their death and demise. They basically seated the monster. Back then the few wealth owners struggled to allocate resources and assuring a fair spread of such. It literally drove so many mad they came to invent … the calculator freaky greedy ass holes can’t live without victimizing themselves… never changes.
There’s a joke in there somewhere about the Lugosis, one of them is a blood-sucking, creature of the night, a monster without remorse for his victims, the other one is a vampire.
The picture in the OP hardly shows the actor’s face. At first glance I thought that might be Johnny Depp who is often seen wearing a hat and sunglasses. It’s surely not the only time anyone was depicted wearing a grey suit, top hat, long hair and sunglasses. So the style is not at unique, the claim would have to be based on the combination of that style and the character Dracula, who happens to be usually depicted in formal clothes. If you duplicated everything in extreme detail it might be problematic but you would have many different styles of suits, hats, sunglasses and hair to work with in forming a character.
I think this is a salient point. I highly doubt that Oldman created his character’s look. It was the costume designer in collaboration with the director and production designer. Even then all of the designs (costume, set, lighting, sound etc) would be, by contract, owned by the production company.
I agree. I don’t think anyone can make a valid legal claim against somebody just because they were wearing the same outfit. My question was about somebody playing a character while wearing the outfit that somebody else had caused to be associated with that character.
Here’s a slightly different example. Suppose I was making a science fiction thriller and the villain in my movie was a character called the Dark Emperor. And he wore a all-black suit with a full cloak and a bell shaped helmet and a robotic mask that covered his face. And he carried a laser sword and spoke in a deep voice. Would Disney be able to sue me?
I don’t know about copyright, but yes the production company owns all designs.
There may be some of the more famous designers with the clout to negotiate for the rights to their own designs (Rick Baker comes to mind) but they would be the exception.
A little “clarification” is necessary. (I put it in quotes because it’s anything but clear…)
In Hollywood, who actually owns a movie is not always clear to an outsider. If you’ve ever noticed in the beginning credits, there is usually more than one production company listed. This is because the cost can be so exorbitant than one company can’t handle it so they’ll seek assistance from others, sharing in the rights and obligations. Add on top of that distribution and merchandising contracts and you’ve got a complicated web or ownership.
Everybody needs their piece of the action!
A literary agent once told me to use the “ten per cent difference” rule – make sure your hero is at least ten per cent different from what was published. So, take your guy and give him a red cloak, and a barrel helmet, and a laser whip – and you might still get sued, but you’d have a better defense.
This sounds problematic. Darth Vader is all costume, and not one that people usually wear, except when they are wearing a Darth Vader costume. And unlike Dracula which is a character in the public domain, the rights to Darth Vader and everything about are well secured.
The public domain portion of the Dracula character is feee to use. But if you use it and add new elements then you can create a new protectable character. So yes, the Gary Oldman characteristics, to the extent that they aren’t part of the public domain character, constitute a separate protectable work if they are sufficiently creative and original. Obviously if your version looks and sounds and behaves like Gary Oldman’s portrayal, you are almost certainly going to be infringing.
freaky greedy ass holes can’t live without victimizing themselves… never changes.
