The truth is that copyright has been creating havoc with horror movies for as long as there have been horror films, all the way back to at least 1922, when the estate of Bram Stoker, the author of the original Dracula novel, took an upstart video company that made an unlicensed adaptation of the book.

This battle not only helped shape horror movie history, but it is also something of a vampire tale unto itself. After all, it’s about a movie that managed to resurrect itself, literally coming back from the dead, and then casting a spell on the living.

In many ways the story of Nosferatu the movie mirrors closely it’s protagonist though, unlike Count Orlok, it hasn’t turned to ash when exposed to sunlight.

Driving a Stake Through Nosferatu

Film producer Albin Grau originally got the idea to shoot a vampire movie in 1916. Serving in Serbia during WWI, Grau was inspired to make a film about vampires after speaking with local farmers about the lore.

He and Enrico Dieckmann founded the company Prana Film and set out to create the movie, even hiring screen writer Henrik Galeen and director F. W. Murnau to bring the vision to life.

Grau, however, hit a major snag. He had wanted to do a expressionistic retelling of the story of Dracula but the estate of Bram Stoker, spearheaded by his widow, Florence Stoker, would not sell him the rights. Though the book was already in the public domain in the U.S. due to an error in copyright notice (similar to the one that caused Night of the Living Dead to lapse 45 years later), in Grau’s native Germany, which was already a signatory to the Berne Convention (The U.S. would not sign until 1988), the work would not lapse until 1962, fifty years after Bram Stoker’s death.

Undaunted, Grau pressed forward with the film and it started production in 1921. However, several changes were made in the movie in a bid to duck a copyright lawsuit. The name of the movie was changed to Nosferatu, the main character’s name was changed to Count Orlok and the plot itself received many tweaks and modifications.

Unfortunately for Grau, those changes were not enough to avoid a lawsuit. Shortly after the film’s debut in 1922, Bram Stoker’s estate filed suit claiming the film was an infringement. Since early versions of the film still included the Dracula name, proving the derivative nature of the work was not difficult and Grau was forced to both declare bankruptcy and close Prana Film, making Nosferatu the company’s only release.

Worst of all for film lovers was that the judge ordered that all copies of Nosferatu be destroyed. It seemed that the movie was destined to die a very quiet death and it almost certainly would have, if not for one piece of amazing fortune.

Rising from the Ashes

The court’s order was followed with amazing thoroughness. All prints of the movie were destroyed, that is, save one.

One print found its way to the United States. Since Dracula was already in the public domain there, there was no way to have a U.S. court order its destruction.

It is from that print that every copy of the film existing today was made.

The film slowly began to gather an audience in the U.S. and, by the 1960s, had earned a place as a horror classic. By then, Dracula was in the public domain worldwide and Nosferatu could be shown freely (though the film itself was protected by copyright in many locations, once again though, not the U.S.).

More importantly though, Nosferatu is the first vampire film that is known to have survived into the modern age. As such, it set many of the templates and rules for the films that would follow, including changing some of vampire lore forever.

The Impact of Nosferatu

Though its clear that Nosferatu is a close retelling of Dracula with different character names, the movie made many changes to the story, some for budget reasons but most for copyright reasons.

The biggest change was the ending of the movie. In Nosferatu, Count Orlok is burned up by the sunlight. However, in Bram Stoker’s version, sunlight was harmless to vampires, it just weakened them slightly.

However, this idea of vampires being killed by sunlight has been used over and over again in various movies, including many carrying the Dracula name. The theme has become so common that, in the more-accurate 1992 movie retelling of the book, a narrator has to explain why Dracula can walk in the daylight for a crucial scene.

Another difference is that a bite from Orlok does not create a new vampire. Rather, Orlok merely kills his victims. This theme too would be adopted by later films, which focused less on the “curse” element of vampirism and often gave vampires a choice as to whether or not a victim would live as a vampire or perish (IE: Interview with a Vampire).

Other changes, however, didn’t catch on. For example, Orlok is an misshapen monster with fangs in the side of his mouth, making him almost appear animal-like. This is in stark contrast to Stoker’s Dracula, which is a suave, sexy and aristocratic womanizer. This paved the way to largely abandon the Van Helsing plot of a vampire hunter and leave room for the story’s women to fight back, one eventually sacrificing herself to kill Orlok.

Still, many of Nosferatu’s changes went on to become canon for vampire movies, even though they went against the story it was based upon.

Bottom Line

In the end, it’s amazing how many elements of modern vampire lore came not from an attempt to write a better vampire tale, but rather were a failed attempt at avoiding a copyright infringement lawsuit.

Without those changes, vampires might never have been thought to be vulnerable to sunlight or able to kill their victims.

Vampire lore would have been very different without Nosferatu. However, the biggest change might be that there would have been almost no vampire movies at all. After all, without Nosferatu proving the interest and potential profit from vampire movies, it’s debatable whether Universal and/or Hammer Films would have taken up the Dracula name.

Imagine, for a moment, if Bela Lugosi and Christopher Lee had not donned the cape? Nosferatu kept the interest in Vampires and Dracula alive until 1931, when Lugosi first played the role and helped ensure that we would have a steady stream of vampire movies from then on.

In the end, though it’s the later Draculas that would become better known, it’s likely none of them would have ever done so if it hadn’t been for this copyright infringing film that managed to stay alive with a stake through its heart.

However, this year I wanted to combine my passion for copyright/plagiarism issues with my passion for Halloween and do something special for Plagiarism Today.

So, all month during Halloween we’ll be talking copyright and horror every Monday. We’ll start this coming Monday talking about the copyright challenges my better half, Crystal, and I faced when creating our new horror movie review series, Garbage Horror, then we’ll discuss how copyright law shaped the horror landscape, including our perception of zombies and vampires as well as some of our more modern characters.

The month will conclude with a special Halloween-day post about great public domain horror movies you can enjoy Halloween night for free legally.

All in all, I’m hoping it will be a fun but still educational look at the role copyright plays both in modern and older horror movies.

If you’re interested, last year I did a post about the copyright risks associated with Halloween, so you can understand some of the hazards associated with running your own haunted house or scary party.

So stay tuned next week for the first posting in Creepy Copyright as we take a look at the copyright challenges in starting a horror review series…

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

The summer heat isn’t slowing down copyright news as the courts keep on churning out the rulings and new laws keep coming online. However, this week we also have a couple of interesting opinion pieces that ask how the war against piracy is really going and where it may be heading.

All in all, this is not a show you want to miss.

This week’s stories include:

• Zediva Shuts Down, Lays Off DVD Monkeys
• BBC Says Stupid Things About Copyright
• First Sale? Not if It’s Made Abroad.
• New Zealand “3 Strikes” Kicks In
• Beating Piracy or is a Comeback Due?
• Mattel and Jack Kirby Heirs Appeal

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

The first came from Netflix, which announced it reconfiguring its account structure in such a way that many customers would be seeing a 60% increase in their monthly bill if they wanted the same service. The second came from Spotify, the music streaming service long popular in Europe as it opened its doors to U.S. customers.

Though the two stories could not be farther apart, especially in how the news was received, they’re painting a very clear picture of how the streaming media marketplace is shaping up and what that means for copyright, licensing and piracy.

To see how, we have to take a deeper look at the announcements, the public’s reaction to them and what they mean.

Netflix’s Price Hike

The first announcement centered around Netflix’s shift in the way it was pricing its various services. The company, which previously had offered one DVD rental per month and unlimited streaming for $9.99, was breaking apart the two components and charging $7.99 for each. The result would be that, for the same service, one would now have to pay just shy of $16 per month.

However, the “rate hike” isn’t a hike at all for those who just used the streaming service as it remains at the same price. Likewise, those who are on the plan but only want one service or the other can scale back and save $2 per month.

That being said, users were still extremely upset with some polls showing over 50% of users plan on unsubscribing from Netflix if the pricing isn’t changed. When it came time to cast blame, many put it squarely on the film studios and there is indeed some reason to believe that rising licensing costs played a role in the rate shift.

However, given that the “hike” doesn’t raise the price for the streaming service alone, it seems more likely that Netflix is simply trying to remove “dead weight” customers from its streaming service. Since many of Netflix’s content licenses hinge in the number of users it has, giving customers access to streaming content when they have no interest or ability to view it is wasting money.

In short, while content licensing rates increasing, by slowing growth and limiting usage of the service, Netflix feels it can keep the prices where they are, at least for the time being.

Spotify’s Big Play

Where Netflix’s announcement was met with near-universal anger, Spotify’s announcement was met with a great deal of excitement. Spotify, which for years has provided free and low-cost streaming music in Europe, has finally been able to secure deals with the record labels to launch in the U.S.

However, where Spotify was a pioneer across the Atlantic, it comes after services such as Amazon Cloud Player, Google Music and even after the announcement of iCloud Music Match. This says nothing of directly competing services such as Rhapsody and Napster that have been in operation for years.

While Spotify does offer a free service, it is limited to 10 hours of music per month, only offers certain features and has ads. Also, the free version is invite-only at this time and invites are scarce. However, users of one of the two paid tiers bypass the limitations of the free account and do not need an invite.

Paid accounts on Spotify begin at $5 per month for a basic unlimited package and $10 per month for an account with more advanced features.

Though no numbers are available the early indications are that Spotify’s launch in the U.S. has been a success, with rave reviews and many willing to spend the money to skip the queue and get into Spotify now.

The Future of Streaming Media

All of this asks a difficult question: Why are users eager to spend $5 or even $10 on unlimited streaming music with Spotify but are upset about spending $8 for unlimited streaming movies on Netflix?

Part of the reason, almost certainly, has to do with Netflix’s announcement and previous pricing model. Not only did Netflix’s controversial blog post try to make it seem like the move was better for the customers (which it may be in some cases) but Netflix had already once raised prices in the past year.

However, a lot of it seems to hinge on Netflix’s library itself, which many view as being lacking and that causes Netflix’s users to use the DVD queue to supplement the holes in the streaming library.

Spotify, however, has a reputation for having a very robust collection of music, with an estimated 15 million songs in its library. Likewise, its software and features generally receive high praise, compared to Netflix, which often takes knocks for its interface and tools.

This is a big part of why Spotify and other free offerings (including YouTube) have had an impact on piracy though it doesn’t appear the same can be said for Netflix, at least not yet.

So what does this mean for copyright holders and streaming services? The answer is quite simple and something many in the industry have said for a very long time.

Building a Better Stream

What Spotify, in particular the divide between it and Netflix, shows is that copyright holders can compete with pirated copies of their content. However, doing that does require a great deal of work.

As such, the following variables are crucial for such a service to work.

1. Convinience: The service has to be accessible in as many places and on as many platforms as possible. It also has to be reliable and constantly available.
2. Completeness: Having 15 million tracks is useless if the one track the listener wants isn’t available.
3. Features: Any paid service must offer features that can’t be obtained for free with pirated copies, at least not easily. This can include recommendations, social networking, etc.

The one thing that is not on that list is price. While it is important that the price be able to be justified, Spotify has shown that people are willing to pay more than even what Netflix is charging for a streaming service if it is worthwhile.

In short, the price can’t compete with free pirated copies nor should it try, but it shouldn’t be a reason to turn away either.

Streaming services that can do this will, for the most part, be successful while those who don’t will generally fail. It’s really that simple.

Bottom Line

In the end, this is where the marriage of content creators and technology firms has to happen. Content creators have to make things people want to see or listen to and tech companies need to get it into the user’s hands with enough features and convenience to make it worth paying for.

For this to work, both sides need to hold up their end of the bargain. With Netflix, content creators need to make sure their work is accessible at a reasonable price and Netflix needs to take ownership over its PR and interface issues.

If the two sides worth together, some amazing things can happen and piracy can become, at most, a back burner issue.

If they don’t, then piracy isn’t going anywhere and neither side will reap any benefit from the works that have been created.

1: No harm, no foul?

The new Wolverine movie was released into theaters this week and it has been a smash hit, bring in $73 million, this despite a pirated copy of it being released and broadly distributed just a month before.

This has sparked a debate about whether the piracy helped, hurt or had no effect on the movie. Though most seem to agree that the movie was going to be a financial success no matter what, many are wondering if the take would have been less or more had the piracy not occurred.

Sadly, we’ll probably never know the answer to that question, though it seems nearly everyone has a theory on the topic.

2: Fight to legalise iPhone jailbreaking set for Friday

Next up today, Apple is facing off with the EFF again, but this time in a very different “court”. The Copyright Office is holding hearings on exemptions to the DMCA anti-circumvention rules and a show down is expected between Apple and the EFF over jailbreaking the iPhone this Friday.

The USCO is set to rule later this year whether there should be an exemption in the DMCA for “jailbreaking” phones, or altering them to operate lawfully on another carrier, and this hearing could be a critical element in that decision.

3: Barbara A. Ringer dies at 83; force behind copyright law

Finally today, we have a sad story to report. Copyright activist and former Register of Copyrights at the U.S. Copyright Office Barbara Ringer died April 9 of complications with dementia. She was 83.

Ringer was a force for copyright reform in the 60s and 70s and was the primary author of the Copyright Act of 1978, which extended the copyright term from 28 years to life plus 50 years for works of personal authorship (it has since been extended again to life plus 70), protected copyright interest in in works, including on devices not yet created (thus ensuring copyright would remain in effect on the Web) and also created the broad fair use exemptions that are relatively unique to U.S. law.

She was the first and, to date, only female Register of Copyrights (becoming it after suing for discrimination in the early seventies) and actually came out of retirement in the early nineties to serve as acting register. She also received thePresident’s Award for Distinguished Federal Civilian Service, the highest honor that can be award to a federal worker.

Any of us who either protect our content on the Web or enjoy the benefits of fair use owe Ringer a debt of gratitude. Many believe that, without her, we would still be operating under the only copyright law, which was written in 1909.

Suggestions

That’s it for the three count today, we’ll be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

However, there are a lot of other great copyright stories including several candidates for “Weird Story of the Week”.

Remember, as usual, this week’s linkroll is a “raw” link list. Some stories are duplicated, some do not point to their original sources and some may not be accurate. A great deal of refining goes into producing the show notes for the Copyright 2.0 Show.

At least one of the files being distributed on BitTorrent claiming to be the book was, in truth, a copy of a fan fiction work entitled “The Seventh Horcrux” by Melindaleo.

Though Melindaleo already gives her fan fiction work away for free on the Web, the misattribution was very disturbing for her. As she said in an email, “I got nervous that I’d be jinxing the whole fanfic writing thing for everyone.”

Worse still, she was also worried about ending up in the cross hairs of J.K. Rowling, her publisher and her lawyers.

Even though Rowling has supported and condoned the fan fiction community that has sprung up around Harry Potter, this does not bode well for her either. After all, some may believe the book to be the actual release and not bother picking up a real copy when it is release, at least not until they discover the error.

No one wins with this misidentification but it is a situation that is becoming all too common on file sharing networks. Misattributed files are hurting authors, including those who want their work on the networks, and are limiting the usefulness of the services to promote new music, art and literature.

A Musician’s Dilemma

Though piracy has gotten the lion’s share of attention when it comes to file sharing, those who have wanted to use the file sharing networks as a tool to promote their art have been haunted by a different problem, misattributed files. This has been especially true for musicians that have been trying to grow their careers using the various networks.

Some, especially lesser known artists, have had their music attributed to other groups, usually more popular musicians. Others, such as Weird Al (see May 2000 column), have had other people’s music misattributed to them, often tarnishing their reputation.

Sometimes the misattribution is intentional. Both movie studios and record labels are known for flooding the file sharing networks with false files in an attempt to hinder the downloading of pirated material. Most of the time though, the misattribution is accidental, the uploader unsure or misinformed about the creator of the work uploads it with incorrect credentials.

This is extremely frustrating to artists that want to use file sharing networks in an attempt to promote their careers. If the music files they share don’t have the correct name on them, then all of the free downloads do them no good, serving instead as false promotion for artists that had nothing to do with the song.

However, even the bands getting the promotion gain nothing. With no albums containing the song and means of playing them at concerts. They can not live up to the expectations the file creates. They also run the risk of being accused of plagiarism down the road, even if they had nothing to do with the change in attribution.

It’s an annoying problem that is now spreading to other genres.

A Spreading Problem

Of course, file sharing has not been limited to music for many years. Now, any type of file can be shared including video, software, music, images and text.

Sadly, all of them suffer, in varying degrees from misidentification.

Video and image files suffer the least, those files are easily watermarked visually and those marks are very difficult to remove. Audio files, however, rely upon embedded tags that can either be easily changed or, depending on how the song was ripped, added incorrectly in the beginning.

Text, however, is the easiest to plagiarize and misidentify. File names can be changed easily and attribution can be removed, lost or altered very easily. It is also easy to mistakenly not copy attribution when selecting a large block of text and accidentally pass around a file with no author information attached at all.

In this regard, the content is exactly like the rest of the Web in what is and is not easy to plagiarize. However, books are very rarely traded on file sharing networks (Note: study done by bandwidth, not file count, still searching for new study) and only major authors, such as Rowling, are sought after on them.

In that aspect, Melindaleo’s case is exceptionally rare. With very few books being traded on file sharing networks, it is unlikely that many authors will have significant issues with file sharing networks, unless they become very popular offline first.

Still, artists working in other types of media need to consider taking precautions to prevent their work from being misattributed, or even outright plagiarized, over the file sharing networks.

Preventing the Problem

If you’re a content producer, especially if you work heavily in audio or video, you need to take some basic precautions to ensure the integrity of your attribution:

1. Post It Yourself: If you are comfortable with users sharing your files, don’t just tell them they can legally rip and download them, do it yourself. Rip your own files and post them to the various networks. This not only ensures the quality of the media, but that the attribution takes the exact form you want.
2. Watermark Everything: Images and video both should be visibly watermarked if they are going to be distributed. Small, out of the way watermarks on both are very hard to remove and will carry with the work as it is copied and redownloaded, no matter how many times the name is changed.
3. Don’t Rely On Tags: ID3 tags on MP3s are too easily altered and removed. If you plan on using file sharing to promote your music, an audio tag at the end of the file is a better solution. Though it can be cut off with editing software, that is less likely to happen that it be overwritten by a program that can manipulate ID3 tags.
4. Multiple Attribution Points for Text: If you plan on posting a very lengthy work of text, include several points of attribution inside the work, perhaps one at each chapter, to avoid it from being easily or accidentally removed.
5. Hashing For Protection: If you plan to offer your files for download on file sharing networks, have an official page where you post the hashes for the files. This way downloaders can be certain they got an authentic copy of the file and that all of the information in it is correct.

The problem with file sharing is that, once a misattributed file gets out, there’s almost no way to reel it back in. Though one can use the matching files feature to find works with the same content but different names, there’s almost no way to stop their distribution other than sending messages to the people distributing the misidentified files and asking them to change it.

It is far more productive to focus on prevention and flood the market with properly attributed files than try to stop erroneous ones creep out.

Conclusions

Fortunately, the Melindaleo story seems to be coming to a nice enough conclusion. Though the misattributed file is still available, Melidaleo has been in contact with Rowling’s agents and they are very understanding about the situation, leaving the next course of action up to her.

As the truth has gotten out about her story, she has drawn some very real and very positive attention for her efforts. The story has even gartered high praise from some who have downloaded it and later learned of the source.

However, others who have their works plagiarized and misattributed on file sharing networks may not be so lucky. Some songs and videos that are passed around regularly may never be traced back to their origin, not without serious research, and those creators are unlikely to see any significant benefit from the sharing.

The hope is that, as technology advances and sharing becomes both more common and more acceptable, that better ways to ensure attribution will be protected.

After all, file sharing may constitute piracy in some cases, but it is not supposed to be about plagiarism. Attribution costs nothing and giving credit where it is due is still good manners.

Hopefully that will improve as time goes on.