Dracula vs. Nosferatu: A True Copyright Horror Story

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Nosferatu PosterThough the slip up that caused Night of the Living Dead to lapse into the public domain is most likely the best-known case of copyright affecting horror movies, it is far from the only nor is it the first.

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

Nosferatu StillThe 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

Nosferatu in the SunThough 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.

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20 COMMENTS

  1. Great article.
    Its extraordinary that a classic movie almost didn’t survive because of a plagiarism claim. I am an strong believer in copyright but I wonder if, in this kind of cases, the reasonable solution is not prohibiting the distribution of the unauthorized adaptation but granting the original author damages.

    It is something of a rethorical question. Nowadays, and because of Internet, I believe that we won’t live to see another lost movie (book, etc).

    • Typically, in my experiences, judges reserve a destruction order for out and out cases of piracy. If you, for example, burned thousands of fake DVDs it’s reasonable and expected the judge would order you to destroy them. It’s very rare to see such an order with these kinds of derivative works cases.

      Usually, the judge bars distribution and gives high damages to the copyright holder, but not demand the destruction of the film. Most seem to think that the Nosferatu ruling was a bit extreme.

      That being said, I think the Web is by no means a guarantee we won’t see another lost work, far from it. Imagine what would happen if YouTube shuttered tomorrow. How many works would be lost forever? The Web seems to remember forever the things we don’t want it to but forget instantly that which we would prefer it to remember.

      Sad, but true.

      Improper backups, over-reliance on cloud services and lack of caring can be just as deadly as a German judge’s order to a film. Hopefully you’re right, but it’s still far from impossible for a work to be lost…

      • “The Web seems to remember forever the things we don’t want it to but forget instantly that which we would prefer it to remember”.

        You sir are a poet. And I will steal that line.
        You are also correct about Youtube.

  2. It isn’t the explicit topic of this site, but since you bring up NOSFERATU’s cinematic influence and “rising from the dead like a vampire … let me extend the analogy.

    I’ve seen NOSFERATU three times with an audience and some sort of live score. And every time, more or less the same thing has happened. Early on, a portion of the audience kind of laughs at the film and its dated conventions (and some admittedly really hammy acting, especially by the wife). But as it wears on, the derision dies down and you can “feel” the audience holding its breath during the last-night seduction of the vampire. And that trajectory in the audience is EXACTLY the trajectory of the characters in the film — who laugh at the old legends as beneath them and then get slowly envelop’d by the vampire until, by the end, nobody is laughing as life-and-death gets dealed out.

    NOSFERATU’s cinematic power, as well as its cinematic existence, both reflect its own story.

      • haha … but no, not at all … in NOSFERATU, the vampire is introduced into Germany by the husband’s actions (more or less). The wife is no less skeptical than her husband at the start and it is she who, eventually, commits a heroic act to gets rid of the vampire.

    • @vjmfilms I’ve only seen the film once with an audience but definitely can relate to what you saw. It’s a movie that has an emotional arc to it and one that audiences, especially today aren’t prepared for. It truly is great to watch it catch people by surprise and it feels like a much longer ride than it is, in a good way.

  3. So I take it Nosferatu is not under copyright in the United States. I have used a few scenes to put music too and posted it on youtube and it has been challenged by some one saying they own the copyright.

    • It depends. It’s not under copyright in the U.S. but it may well be in other countries. Also, could it be that it was the rightsholder in the music that filed the notices? YouTube takedowns usually center around audio matches, not video ones actually…

      • I removed the original sound track completely, and replaced it with music that I wrote. The notice I got was for visual content. This is the second time this has happened, but different groups each time.

          • The first was Craze Productions, who dropped their claim when I disputed it. The present one is Diva Video Access AG, and I am waiting for them to respond to my dispute.

      • I am wondering if it is popping up just by Nosferatu, and they might be thinking is is one of the more recent remakes, which are more than likely under copyright, and so they are challenging it with out even viewing it.
        What ever the reason, I am 2-0 in the dispute.

        • That is actually very likely. Given that you swapped out the audio, an audio match isn’t likely so it probably is keyword-driven. That could be a matter of them simply searching for the name Nosferatu and finding yours.

          • Jonathan, sorry to air my frustrations after I stumbled on your site. So the only copy found its way from Germany to the USA?
            Why is it usually the US who benefits from none American peoples good ideas? I am talking about past history as well as now and surely far into the near future.
            We are in the 21ST Century and some powerful US Judges are quiet openly willing to sell their soul to the devil if the price is right. Never mind which side committed a crime, which side has stolen someone else’s life story to benefit, to turn it into another person’s autobiography even if it then turnes out in court that this other person does not even exist nor ever did exist and the thieves were not in possession of a manuscript or diary for their story either. In my case the judge ruled that this evidence was irrelevant! What a joke!
            Todays copyright law is an instrument which can be easily altered/ adjusted by a willing judge in favour of crocked ‘ fat cat publishers’ such as Hearst, Doubleday, Pantam Books et cetera. They get away with murder especially if the plaintiff happens to be a foreigner from Europe like me, who had the audacity to sue a bunch of American thieves. Trying to get my property back through the appropriate channels has destroyed my life. I wish I had a Judge with the caliber of the Braun Stokers Estate. Nowadays publishing is a muddy shark infested pool. I was squeezed out through endless motions filed by defendants concerning the copyright law etc. I was cheated out of my life story and $ three million to boot. I had to stop litigating. The publishers defendant attorney was/is a 1ST class liar.

            You might like to look up: THE PRINCESS SULTANA HOAX and click on the articles there.
            Monika
            PS English is my third language, excuse.

  4. As I own a copy and finished watching it again just minutes ago, the character “Count Orlok” is nowhere to be found. The list of characters at the beginning of the movie shows “Count Dracula”.
    Both IMBD and Wikipedia show names of other characters and
    the town name incorrectly.
    All the original names from the Bram Stoker story were used.

    • As I stated in the article, early versions of the film did include the Dracula name. It was a key piece of evidence against the film.

      However, you have to remember that this was a film from 1922. It’s been edited and recut many times and countless versions exist today. Many changed the names.

      If you want to see one with the original character names, check out Archive.org.

      https://archive.org/details/nosferatu_201508

      Skip to 6:20 to see Orlock’s name. The names in IMDB and Wikipedia are correct, it’s just that various reedits of it have changed the names to the more familiar ones.

  5. The legal contretemps between Florence Stoker and Prana Films was not quite as you describe. In the 19th century and into the 20th, it was not yet recognized that authors of a work automatically hold the underlying rights to adaptations into another medium. The right to adapt, say, MOBY DICK into a burlesque skit, would not be an infringement of Herman Melville’s heirs to authorize republishing the novel. Robert Louis Stevenson’s novella DR. JEKYLL & MR. HYDE was famously adapted to the stage by a number of actor-managers, including Edwin Booth, who knew Bram Stoker (and of course, Sir Henry Irving). Stevenson never made a dime on these adaptations, in England, the US or anywhere else. It was Stevenson who gave Stoker the heads-up about protecting theatrical rights. This resulted in a one-time public reading of DRACULA as a play, in Irving’s Lyceum Theater, which qualified the work for theatrical adaptation protection. But when Prana Films chose to adapt DRACULA, the protection of a theatrical adaptation did not necessarily cover the new medium of a “photoplay.” Creators in the first three decades of that medium played fast and loose with adaptations, sometimes securing rights, other times ignoring them or couching their status in ambiguous loopholes. Further, the fact that DRACULA (as a book) was actually in PD in the US (and only within the US) at the time was not even realized until decades later, after it was moot. During the 1920s and ’30s, Stoker’s UK copyright was recognized in the US as valid; nobody ever doubted or double-checked. So this was not really a part of the Stoker-Prama action. Finally, not all copies of NOSFERATU but one were destroyed. It’s true that the judgement ordered complete destruction of them all, but the prints were already in circulation. Hence there are any number of source prints for our latter-day DVD and video copies. Indeed, Universal (which had negotiated directly with Florence Stoker for the DRACULA rights) had a pristine 35mm print in the 1930s. They used this for scenes in a dreadful comedy short called “Boo!” in 1932, along with clips from FRANKENSTEIN and CAT & THE CANARY. Why they didn’t use their own Dracula, who knows?

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