ABC’s fairy tale drama Once Upon a Time has taken audiences to fan-favorite fictional worlds including the Enchanted Forest of Snow White and the Evil Queen, Peter Pan’s Neverland, and most recently, Dorothy’s Oz. What most viewers don’t realize, however, is how many legal dragons creators Adam Horowitz and Edward Kitsis had to slay on the way.
At its 2011 inception, Once Upon a Time’s storylines were consciously limited to “characters from ABC’s parent company, Disney, and classic fairy-tale characters in the public domain to avoid . . . outside rights, permissions, and fees.” [EW (Nov. 18, 2011) at 3] Sadly, this menagerie did not include the likes of Peter Pan or Captain Hook.
How is it possible that Peter Pan has not fallen into the public domain? Well, that is a tall tale of its own…
J. M. Barrie introduced Peter Pan in his 1902 novel The Little White Bird. In 1904, Barrie staged a play titled Peter Pan, or The Boy Who Wouldn’t Grow Up, which he adapted as a 1911 novel, Peter and Wendy. Eight years before his 1937 death, Barrie transferred the play’s copyright to a London children’s hospital. When the play’s copyright expired fifty years later, the British government passed section 301 of the Copyright, Designs and Patent Act (1988)—granting the hospital a royalty right vis-à-vis “the public performance, commercial publication or communication to the public of the play . . . or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987”—effectively protecting Peter Pan from ever growing up and aging-out of copyright protection.
As with its original modifications of so many other heroes and heroines, Once Upon a Time circumvented this copyright obstacle via creativity, taking only unprotected elements—ex. names, titles, and short phrases—and changing everything else.
More recently, Once Upon a Time likewise avoided copyright complications in its incursion to Oz by skipping down the now public-domain yellow-brick road of L. Frank Baum’s creation, rather than that of Warner Bros.’ 1939 film adaptation. [See THR (Feb. 27, 2013) ¶¶ 23-24.] This meant “silver shoes with pointed toes” rather than ruby slippers, and a new shade of Wicked Witch green. [See THR (Feb. 27, 2013) ¶ 34.]
Long live Horowitz and Kitsis, the kings of copyright creativity, whose Once Upon a Time will return to ABC for a fourth season in fall 2014.
Featured Image: © 2014 American Broadcasting Companies, Inc.
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