When a vampire not called Dracula bested the copyright system, and what it tells us about derivative works

This Kat has never been much into vampire lore, although our youngest did convince his parents to purchase the full set of episodes for Buffy, the Vampire Slayer. Vampires have been accused of many things over the centuries. But for IP types, perhaps their most notable accomplishment was the revenge that they took upon the copyright system.

Last month marked one hundred years since the first screening in Berlin of the iconic vampire movie—Nosferatu: A Symphony of Horror. And, while the copyright laws were used to try to keep the film from public view, ultimately it failed, to the continuing benefit of cinematic creation. The tale of Nosferatu shows the sometimes-uneasy relationship between copyright protection and the making of derivative works.

Nosferatu was a 1922 adaption (just how much was the subject of the copyright challenge to the movie) of the wildly popular 1897 book by Bram Stoker—Dracula. But the Stoker book did not emerge from a creative tabula rasa. Vampire folklore had been passed down for centuries. Their common denominator was the presence of a creature that feeds on the vital essence (e.g., blood) of the living. The vampire was an "undead" creature which, although deceased, acts as if it is still alive.

The first modern vampire book—The Vampyre, was written by John Polidori in 1819. Its genesis was the same story-telling gathering in the summer 1816 along Lake Geneva that produced "Frankenstein". This was followed inter alia in 1845-1847 (as a series of pamphlets) by Varney the Vampire written by James Malcolm Rymer and Thomas Peckett Prest, and in 1871 by the book Carmilla written by Sheridan Le Fanu. Thus, when Stoker produced Dracula in 1897, there was an established literary tradition alongside ongoing oral folklore.

The specific sources for Stoker's book are still much discussed, and they include Transylvanian folklore and history (Vlad the Impaler, a 15th century figure, is often mentioned). Some also refer to claimed structural similarities with the novel by Wilkie Collins, The Woman in White. It is claimed that "[m]any of the book's characters have entered popular culture as archetypal versions of their characters." The upshot was that Stoker had plugged into extensive and multiple sources on vampire folklore as well as contributing to on-going archetypes of the genre.

Still, Stoker's enormous success with the book took the vampire genre to a new level. It is not surprising that creative activity involving vampires, and particularly Dracula-like characters and story line, would be picked up by the nascent silent film industry.

And so it was that Nosferatu, directed by F.W. Murnau and produced by Albin Grau, both German filmmakers, came into being. The report goes that Grau's inspiration for the movie came from hearing stories about vampires from local farmers in Serbia, this while he was serving in the German army in 1916. It followed with the establishment of a film company and with the hiring of Murnau (as producer) and Henrik Galeen (as screen writer).

It is here that the story, as a copyright matter, become murky. It was one thing to get excited about the possibility of making a vampire movie; it was another when the focus was taking the best of the German expressionistic cinema tradition, then in vogue, to do a movie version of Dracula. Assuming that even if Grau was not familiar with Stoker's book when he heard the stories from the farmers in Serbia, still his decision to focus on Dracula brought him directly into contact with the copyright universe.

A movie version of a published literary work might require permission from the author, depending on how close the move came to the book. Stoker's estate (he had died in 1912) gave no such authorization. Undaunted, Grau pressed on, and the movie was produced.

With an eye towards copyright, changes were made, beginning with the name of the movie and the main characters. Also, the plot witnessed various modifications (in the words of one commentator, "Murnau really only borrowed the skeleton of Stoker’s plot."). For example, the most effective weapon used against the vampire is not a stake, but sunlight; the movie replaces a male band of vampire slayers with the resolute Ellen, who by virtue of self-sacrifice, saves the day; and a swarm of rats accompany the main character on his travels.

That said, arguably the most notable aspect of the movie were its novel cinematic contributions. As described in the February 26th issue of The Economist, --

A century on, “Nosferatu” is still revered for its experimental techniques—shooting on rugged locations as well as in a studio; using stop-motion animation and fast-motion footage—and for the glut of horror-movie conventions it established. The film includes villagers in a tavern who warn the hero not to proceed, and the conceit that vampires are burnt to ash by sunlight. It is the archetypal Dracula film. And yet, its most strikingly modern aspects are those that leave Stoker’s novel behind.

Enter the copyright laws. Florence Stoker, in the name of Stoker's estate, vigorously pursued Grau and his production company in German court. She prevailed (unwisely for Grau, it seems that the early releases of film still used the name "Dracula"), the court awarded damages (Grau's company declared bankruptcy), and the court issued a destruction order for all copies of the movie (ripping the movies from their canisters to do so, and having court-mandated agents to track down and destroy copies or negatives). The movie had entered cinema oblivion.

However, there was no longer copyright protection of the book in the U.S. due to a defect in the copyright notice (this was a material issue under the 1909 copyright law then in effect in the US). So, if a copy of the movie could be found, the movie could be safely screened there.

That is what happened, with one copy discovered in the 1940's and another in the 1950's. With the book in the public domain, these discoveries enabled circulation of the movie, leading to a spate of other Dracula-based productions, taking their lead from Nosferatu.

To this Kat, the real horror story here is how the copyright system and, in particular, protection regarding the unauthorized production of a derivative work, nearly put a stake in the heart of an exceptional artistic creation. This Kat did not find any detailed report of the German court's decision. Nevertheless, how much the movie drew in material part on the book, and the extent to which the book itself contained elements of existing vampire folklore, raise the question of what was protectable in the Stoker novel.

As well, the movie contained notable cinematic features that hardly could be said to derive from the book. Rather, they were in the main the original creative contribution of Grau and his team and they continue to be cinematically influential through the present.

It risks being a hackneyed truism—the purpose of copyright law is to encourage the production of original creative works. However, protection against unauthorized derivative works can sometimes pose a systemic challenge to how far one can extend this truism. In the case of Nosferatu, being a cinematic masterpiece was not enough, until the copyright laws gave way.