The other day I was thinking about Zorro. Frankly, I love stories about Zorro and The Three Muskateers. I have only recently started playing Dungeons and Dragons, and when I created my character, I decided that he should be a fighter with high dexterity and speed. He also gets a cloak and a wide-brimmed hat. B-)
Anyway, I was thinking about the possibility of making a game based on Zorro. If Zorro was created recently, then the copyright might prevent me from making such a game, but if it was an old creation, then it might be in the public domain, which means that I would be perfectly within my rights to create a game based on the stories of the masked legend.
So I searched online and found out that the earliest copyright date for Zorro was 1919 for the pulp fiction serial called The Curse of Capistrano. Shortly afterwards, a movie adaptation followed, and the successful silent film The Mark of Zorro brought the hero to the big screen for the first time. That link will take you to a page that will let you watch the film as it is in the public domain.
So the original story and the first movie are definitely in the public domain. So, anyone has the right to make a movie, video game, or story based on Zorro, right? I would think so, but apparently I might be wrong. I found a post at derivative work which linked to a BBC News report that Sony sent a cease & desist letter to Sobini Films for trying to make a movie about Zorro. Sobini sued and I haven’t been able to find anything about it being resolved, although imdb.com does list Zorro 2110 as being in production.
And I would totally go see it, too. It would probably be like seeing the remake of Planet of the Apes for my birthday…shut up.
Anyway, the point is, how does Sony think that it has the right to tell someone NOT to make a film based on a public domain work? And where does Sobini Films get off talking as if it has aquired the rights to a book in the public domain? EVERYONE has aquired those rights. That’s what the public domain means!
But is Zorro in the public domain? Is there anything about Zorro that isn’t?
I’m not the only one who has these questions. You can’t just trust that Wikipedia has it right, but Zorro is on the list of public domain characters. But what exactly does it mean that Zorro is in the public domain, especially when Zorro Productions exists solely to license the trademarks and copyrights in the name, visual likeness, and character? How can this group exist when Zorro is in the public domain?
I learned that the character of Zorro may have been inspired by people or stories that ARE in the public domain. The Scarlet Pimpernel is an older story that pretty much set the stage for the super hero genre. The hero was a rich person hiding his true identity with disguises. Zorro, Batman, and a number of other characters, especially in comic books, would follow this archetype.
But history also has some influence on the character of Zorro. Joaquin Murrieta was considered the Robin Hood (another legendary hero in the public domain) of Mexico, and “the fictional character of Zorro was in part inspired by the stories about Murrieta”. Now, Murrieta the person may have existed, but the legend surrounding him may be more fiction than fact. His story resembles Batman’s in that circumstances in his life charge him with fighting back against what he considered evil and protecting others from those same evils.
Can I create a game based on the original story of Zorro which is known to be in the public domain? I obviously can’t make a game that was inspired with recently created films, but couldn’t I make my own interpretation of the original story? Couldn’t Sobini Films create a Zorro of the future without a Sony coming after them? Why does Sony believe it has this ability, or specifically why does Zorro Productions believe it has exclusive rights to Zorro?
I did find this San Francisco Business Times article detailing the family behind Zorro Productions. It seems that if they control nothing else other than the trademarks for merchandising, movies, books, games, slot machines, etc, then they pretty much control new creations based on Zorro, even if the copyright status of older works has expired. I had emailed the company, and President and CEO John Gertz responded to say that even if some works are public domain in the United States, the copyright may still be valid in other nations. Interestingly, I learned that a number of the trademarks for things such as video games, board games, role playing games, candy, and all sorts of merchandising were registered fairly recently. Some trademarks have expired, but others have apparently replaced them. Trademark searches are definitely not for those with weak hearts.
So, what’s the status of Zorro? Is he in the public domain, or does some company actually have the exclusive rights to him? It seems that an indie game developer might be taking on a lot of legal liability by trying to make a game based on Zorro. Besides the existing trademarks, the copyright status in the country of a customer might turn that sale into an infringement that costs you big. Unless you are prepared to discuss the matter with a lawyer (and pay for such a discussion!), it might be easier creating your own characters and building up a following. I imagine it might be possible to create your own version of a character like Zorro, but then you would have to step around trademarks that simply use the text “ZORRO” on a video game. Batman is pretty much a Zorro-like character, but he is different enough that he can become his own trademark. No one really owns Robin Hood as far as I know. And there are plenty of other famous legends that are probably not locked away from the public through exclusive rights such as copyright and trademark.