How Universal Re-Copyrighted Frankenstein’s Monster


Frankenstein Movie PosterPreviously this month, we talked about how a copyright blunder led to Night of the Living Dead being released into the public domain and how a copyright dispute nearly led to the destruction of Nosferatu, now regarded as one of the best early vampire films and created much of the modern vampire lore.

However, this week’s post is a bit of a twist. Rather than it being the tale of something falling out of copyright or a copyright dispute nearly destroying it, we’re talking about how a movie studio, namely Universal, managed to effectively re-copyright a previously public domain creature: Frankenstein’s Monster (Note: For those who are unclear, Frankenstein is the last name of the doctor, the monster has no name.)

How did this happen? Much the same way that Disney has managed to exert a great deal of copyright control over public domain stories such as Pinocchio, Snow White and Cinderella: By creating a movie retelling of the story that adds copyrightable elements they can control.

It’s a simple plot, but on that has helped to largely keep other re=tellings of Frankenstein off the shelves and out of theaters.

Resurrecting Frankenstein’s Monster

Frankenstein Book CoverMary Shelley first penned Frankenstein in the summer of 1816 during her famous summer with Percy Shelley and Lord Byron. The first edition was published in 1818 though it was published anonymously. It was only on the second printing, in 1823, that she would be credited as the author.

By 1931, over a century later, Frankenstein had long lapsed into the public domain and became ripe pickings for Universal Studios, which had just found a strong success with it’s film “Dracula”, starring Bela Lugosi, and was seeking to expand its line of monsters.

However, in adapting Mary Shelley’s classic tale to the silver screen, Universal had a problem: The original book was largely devoid of of any real description of the monster, leaving most of the details to the reader’s imagination. In fact, only a few lines were spent on the moment the monster came to life, meaning the iconic scene with lightening, maniacal laughter and scifi-looking equipment didn’t exist in the book.

As such, Universal had to craft an image of what it thought the monster should look like and, through the magic of make up and 1930s special effects, turned actor Boris Karloff into a flat topped, lumbering giant with two bolts and a prominent scar.

The look became an instant sensation and became widely associated with the monster. It was used in the subsequent sequels including The Bride of Frankenstein (1935), Son of Frankenstein (1939) Ghost of Frankenstein (1942) and many others. But more importantly, it became the default “look” for the monster and how most people envisioned it.

Even today, if you ask someone randomly to describe what Frankenstein’s monster looks like, you’ll probably get a description that mirrors Universal’s version.

However, since that look wasn’t in the original story, Universal could control it’s particular vision of the monster and enforce copyright in it.

And control it, it has.

Controlling the Monster

Boris Karloff FrankensteinSince the story of Frankenstein is still in the public domain, Universal can’t stop others from making their own Frankenstein movies, books, comics, plays, etc. However, they can and repeatedly have clamped down on those whose reimaginings of the book involved a monster that they felt looked too close to their own.

This, in turn, has forced other studios to get creative with their version of the monster. For example, when Hammer Films did their Frankenstein films in the 50s, 60s and 70s, they modified the look of the monster so that it would be similar enough to be recognizable but different enough to not be infringing. Various comic book retellings have done the same thing.

However, there’s been a great deal of debate over the years as to what is and is not copyrightable when it comes to Frankenstein’s Monster and, more importantly, which uses are and are not infringing.

According to a recent report from a book publisher, Universal is currently clamping down on any monster that has all of the following elements:

  1. Green Skin
  2. Flat Top Head
  3. Scar on Forehead
  4. Bolts on the Neck
  5. Protruding Forehead

Hammer FrankensteinAccording to the report, those are the elements that Universal says define the Universal version of Frankenstein’s Monster. Compre this to the Hammer Frankenstein to the right.

As you can see, the image lacks a flattop head, has no bolts and only has a slightly protruding forehead. However, it retains its green skin and the scar on its forehead, as well as other visual similarities with the original.

However, this wasn’t the only copyright issue Hammer Films faced in making its Frankenstein movies. For example, with “The Curse of Frankenstein”, the script had to be rewritten multiple times to avoid any similarities to the Universal series, in particular “The Son of Frankenstein”, which was a largely original plot created by Universal.

Still, the movies were made and no lawsuit was filed, however, the shadow of Universal’s Frankenstein’s monster looms large over the entire genre, due to both its iconic status and its current protection by copyright.

Bottom Line

So what does all of this mean in a practical sense? Well, for one, if you, your son or daughter want to dress up as Frankenstein this Halloween, most likely you’ll be doing it in a costume/mask that’s licensed by Universal.

Likewise, other adaptations of the story that use a monster similar to the one in the Universal films need to either get a license or risk facing a lawsuit. This includes, movies, comics, books and other formats.

While you are certainly free to do whatever you want with the source material, the Universal version of Frankenstein’s monster is so iconic and so recognizeable that it would be an uphill battle to create a different version of the monster.

That being said, in 1994, Tristar Pictures did make a more novel-faithful adaptation of the story and it did reasonably well for itself, proving that it’s not impossible.

However, if you want proof how big of an uphill battle this is, ask a child what Frankenstein looks like and you’ll likely see just how deep the connection with the Universal version is, even 80 years after its release.

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  1. Question:
    If a carny wants to put a lifesize figure of the Karloff as Frankenstein’s Monster in front of his Haunted House, will he have to pay licensing fees?

        • Universal can’t copyright the name. That’s public domain, and was long before. Universal can only copyright characteristics that they were directly responsible for creating. Another point, though, the creature didn’t actually have a name, so you could pretty much call it whatever the heck you wanted.

  2. This design is steller! You most certainly know how to keep a reader entertained.
    Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Excellent job.
    I really enjoyed what you had to say, and more than that, how you
    presented it. Too cool!

  3. I find most interesting, numerous things about Universal’s (“current”) list of taboos (as stated above).

    1. “Green skin”: Universal’s monster was made in the era of Black and White—as are all Universal’s images of Karloff as the monster. Many depictions of all kinds of monsters appeared in art long before Universal’s Frankenstein ever made its own appearance. To maintain that Universal’s depiction is the first one to have green skin is tantamount to saying one of their scripts was the first to contain the phrase, “There was a loud bang!” Occasionally, I myself have green skin. Usually it owes to something I ate (or drink.) Should I expect a Cease and Desist letter from Universal?

    2. “Scar on forehead”: Again; any scar? Anywhere on the forehead? I’ve got a scar on my forehead.

    3. “Protruding forehead”: Actually, it’s the brow that’s protruding, not the forehead. I’ve also got one of those.

    4. “Flat-topped head”: I’ve also got one of those! (Exactly how many Cease and Desist letters should I expect from Universal?)

    5. As far as any “current” list of design elements is concerned, what is that? It’s absurd to think that a copyright holder can keep adding to such a list as and when one chooses. (“Oh. As of today, we claim copyright over the monster’s earlobes; next week we might claim it over his nostrils.) Thus, a strong case can be made that once any list is drawn up—as, apparently, one has been—of what someone considers the elemental bases of their copyright, THAT’S IT! Sorry, Universal, but all you have the right to is any (my quotation marks), “plainly close and overall resemblance”—which, moreover, is restricted to a plainly close and overall resemblance of a sufficient number of elements, applied*, moreover again, in a particular pattern. (If, for instance, I created a monster with a bolt through his nose, that would not infringe Universal’s copyright. Universal do not own the copyright on either bolts themselves, or on how and (any~) where they are used. Personally, I believe Universal’s copyright of the monster should extend to the “banged-down nails in the cranium,” which are plainly as distinctive as the “bolt through the neck”—but not (and only for instance) to the applied eyelids which, however much they too add to the monster’s countenance, nonetheless fall into the same category as “There was a loud bang!”

    6. It is questionable whether the images of Boris Karloff as the monster ever were in copyright. For that to be the case (and with respect to individual images) every copy of a copyrighted image must bear: the copyright symbol, the year of copyright, and the name of the copyright holder; in James Whales’s day, stills photographers in particular were and where not completely ignorant of such things then were very lax about them.

    Design elements are like the words in a sentence. I could write a distinctive sentence—such as, “Monsieur Flitherbiffle’s workforce considerably increased its line of cranked bushbenders,”; but, whilst I (now) own the copyright over the name, “Flitherbiffle” (and, probably, “bushbender”) that doesn’t mean I own the copyright over either “monsieur” or “considerably,” any more than it means I own the copyright to any sentence containing those two words. There has to be (again, my quotation marks) a “plainly close and overall resemblance to a particular pattern of applied design elements.”

    Applied elements (sometimes called “appliqués”): No one, for instance, can claim copyright to the natural features of Boris Karloff’s face—to those things, in other words and such as his natural facial proportions, “Made by God.” Thus, if I were to fashion a bust of him as he appeared (or might have appeared) in real life I would not be guilty of and on the basis that “that chin” and “that nose” form part and parcel of some copyrighted image, infringing and in particular here, Universal Studios’s copyright. (I also have Boris Karloff’s chin. Good God! I AM Boris Karloff!)

    All of that said, it seems much in Universal’s interest to compile a more formal (hence, final) list of those specific and applied*—design—elements, which it—claims—and (only) when in concert, constitutes the artistic semblance of Universal’s Frankensteinian monster, since if anyone sufficiently infringed on any design element (which copyright is not expired) they damn well should be prosecuted. I’m a writer. It sometimes takes me a month to compose, just right, even a single paragraph. Who the hell does someone think they are, who feels they have the right (Legal or moral) to and at the mere click of a mouse suck from me the (even if only potential) benefit of all that damned-hard work? Plagiarism IS theft. Plagiarists ARE leeches—but (see the next paragraph) so is claiming copyright to that which one has no moral right. There are no excuses; there are only rationalizations.

    Claiming copyright to that which one has no moral right: There’s law and there’s morals. Most people today seem to define morality in terms of what’s legal (“If its legal, it’s moral.”) but they could not be more wrong. Law may be law—but when and only for instance, huge conglomerates lobby to extend copyright, and extend it—and, as had been done vis-a vis James Whales’s Frankenstein (which is still in force), to continue extending it.¹ Is that not leeching? Given I recall correctly, Frankenstein’s original copyright ran out circa 1958, but which had and has been extended, through legislation, even numerous times since then, to the point where its (merely current) copyright runs out somewhere around 2026! (One can only assume it will be and before then, “magically” extended yet again.) I reiterate¹, none of this is to imply Universal Studios in particular but the tactic in general: if that’s not leeching I don’t know what is. It’s every bit as morally corrupt as outright plagiarism. In force since the sixth century, copyright is by definition supposed to have a time limit and which for centuries now is normally understood to extend, not to the benefit of the artist’s great-x-infinity-grandchildren, but only to his grandchildren.

    (¹This is not to imply that Universal Studios instituted, is, or has ever been guilty of the practice.)

    • @Dan O’H – I think you are mistaken in many of your assumptions about how copyright is applied. Universal’s claims are for Frankenstein’s Monster and your #1-6 are not universal to any creation, just those that apply to the monster. It’s impossible which one of these “protectable elements” (the legal definition) is applicable until and unless one sees the image in question. Just a green skin does not apply in most situations, like Smurfs for instance, but does apply for a Frankenstein monster type. In other words its a case by case situation, where one element alone would not be an infringement, but a combination of several elements might be. Again, it’s always a case by case situation.

      As far as a copyright notice, which has not been required for many years now (so people don’t get confused), I’d be shocked if the copyright notice was not on the Frankenstein film, as required back when it was produced. It’s a moot point.

      You also state that copyright exists since the 6th century. I’d honestly love to know what you are referring to, since copyright has not been an issue until there were mechanical reproduction available. Initially Gutenberg’s invention of movable type. The “Statute of Anne” in 1710 (the 18th Century) has always been looked at as the first copyright law, established to protect publishers. Can you cite an earlier example, 12 centuries before that? It’s hard to see where copying was an issue when it was all done by hand. But if you have such a law, honestly, that would be great and I could cite that to predate the Statute of Anne.

      Lastly, moral rights are very strong in the the law in Europe and some other areas in the world. In the US we have the Visual Artist Rights Act (VARA) of 1990, which is about moral rights, but a bit limiting. You can read more about VARA in the book I wrote with lawyer Ed Greenberg titles “The Copyright Zone” (Yes a shameless plug, but still a useful book in explaining copyright for artists).

  4. I’m a sculptor and I’d like to start a company that makes and sells 10″ movie monsters. Could I sculpt the Universal classic monsters ( Frankenstein, Mummy, Wolfman etc.) with no problems or do I have to get a license from Universal Studios?

  5. I am a scenic designer in the live stage arena. I specialize in set, props, lighting, and special effects. I’m 65 and after close to 100 shows under my belt, I have a few more shows that I wand to do. My bucket list includes recreating the 1930 black and white movie version of Frankenstein in a small-scale live stage production, with ALL the bells and whistles. All ticket proceeds would go to finance the production elements and there would be no staff/actor fees. I’ve rewritten the story to adapt it to the stage and included a few background story elements from Mary Shelly’s original story. The content of the story and the sequence of scenes are very similar however the dialogue is at least 98% new (different than the movie.) Just as A Christmas Carol is a holiday tradition, I would like to retain all the sets, props, costumes etc. to reproduce every so often during the Fall season. I’ve had many people say that it would not be a problem and should proceed with out “Opening Pandora’s Box” But I’m not sure I want to take the chance. I would love to create the Boris Karloff’s rendition, but after reading your post, it may not be possible. If I not willing to take the chance, then I guess I have nothing to loose by asking and getting a no of find out that it would be too costly. So, for those interested, I’ll report back in a few month when I find out. Any thoughts or comments?