Mining the Public Domain

As you may have heard, because of a 1998 revision to U.S. copyright law, January 1, 2019 marked the first time in more than 20 years that any copyrighted work entered the public domain. And while we all rush to download legal copies of works by Robert Frost and Edith Wharton, this also means those cherished works are now available to be used and abused by artists of every stripe for our own creative endeavors. So, it’s a good time to reflect a little on the creative process, what we owe our forebears, and what might or might not constitute an appropriate way to borrow (that is, steal) other people’s intellectual property.

I freely admit to being a shameless raider of the public domain. My first novel, Jennifer the Damned, is loosely based on Crime and Punishment (though I probably could have gotten away with publishing it even if the original were still under copyright.) My second novel, Cinder Allia, would certainly have owed royalties to both The Brothers Grimm and Charles Perrault if their copyrights hadn’t expired. I’m currently working on my most flagrant act of plagiarism to date, converting two related short stories by George Washington Cable into a novel. It’s blatant thievery… and it’s legal, and I fully expect to be able to say of the finished product, “This is mine.”

When I recently discussed the public domain with some friends, they asked me, “Wouldn’t you be horrified if someone else took the characters from your books and wrote whatever story they pleased?” Of course, my answer is Yes. I picture poor Margaret Mitchell rolling over in her grave at the publication of Scarlett (which was commissioned by her heirs; Gone With the Wind is still under copyright), and the thought that someday, some second-rate hack might do the same to Jennifer makes my blood boil. If I think about the public domain’s potential consequences for my beloved books, I suddenly want nothing more than to remain an obscure nobody in the hopes that my work will die with me.

I am an absolute hypocrite when it comes to the sanctity of intellectual property, and yet it is a hypocrisy from which there seems to be no escape. An author (or musician, artist, etc.) must be granted the sole proprietorship of his creations, or share it only with the appropriate collaborators, not only to ensure that he is paid fairly for the work but to maintain the integrity of the work itself. Yet there does come a point when it’s just silly to continue to extend royalty payments to someone’s heirs. Can you imagine the legal nightmare if we still had to hunt down the rights-holders every time we wanted to stage one of Shakespeare’s plays? It makes sense that there comes a point when creative works belong to everyone. The artists have lived their lives, earned their pay (or not, as the case may be), and they leave us with a treasure that becomes literally priceless. Their works become a layer in our cultural consciousness, a foundation not of bedrock but of clay. Their stories become our stories, a past out of which we build our present and our future.

Of course, once a work has entered the public domain, there is no way to police who does what with it anymore. If you want to write Pride and Prejudice and Zombies, no one can stop you. If you want to turn Pachelbel’s Canon in D into an incredibly annoying Christmas song,  alas, you can make millions. If you want to reimagine Crime and Punishment as a vampire novel, I might sue you, but only because I thought of it first. The clay is universally available to every would-be sculptor, which is both a blessing and a curse. What responsibility do we, the artists who mine and mold the public domain, have to the artists who came before? At what point should their artistic integrity give way to our creativity, and at what point do we need to rein ourselves in? How do we reverence the works we build on, and how do we build rather than destroy?

There are no easy answers, and it’s unlikely that any group of artists would reach a consensus on these issues. I will offer a few of my own thoughts, but I welcome all of you to chime in in the comments.

First, it is possible to find a work that speaks to you, but which really could stand to be improved. This happens frequently in music when the cover version of a song far exceeds the artistry of the original. In the case of “Say Something” by A Great Big World, their lackluster single caught the attention of Christina Aguilera, who then collaborated with them on a new version that is about four million times improved, if we use the sales figures as a measurement. She added the dynamic, harmonic, and tonal contrast that the song sorely lacked, and the results speak for themselves. This is obviously not a case of mining the public domain, but the same principle can apply. In my current project, Cable’s stories speak to me, but he made deliberate narrative choices that required him to skim the surface of character development and conflict. Where he skimmed, I want to dive. Discovering a work like this is like finding a glorious but half-polished diamond. The desire is not only to finish the job, but to create a whole new necklace in which to set the newly-polished original. It cannot be done without reverence for the original work; why would anyone waste his time adapting something he thought was terrible? The point is to showcase the original in a new, more glorious light. Yet the process may very well require chipping away at pieces the original author would have been loath to part with, and any artist will bring his or her own unique perspective to the tale. In this life, I will never know what George Cable thinks of my story, and that’s probably for the best. But I can thank him profusely for providing me with the diamond, and hold myself to the highest possible artistic standards in the hope that I can play Christina to his Great Big World.

More often, however, it would be pure arrogance to think we could improve the works we’ve borrowed. Dostoevsky certainly doesn’t need my help; Cinderella has been adapted a thousand different ways, and her story still transcends all our meddling. So why do we bother? What is the appeal? There is an argument to be made for adaptations as the lazy man’s version of creativity, and an even more compelling argument that the appeal is easy-to-sell brand recognition. Pride and Prejudice and Zombies… Cool, I’d like to see Elizabeth fighting the undead. Hey, that Christmas song sounds like something I heard at a wedding… It must be good, even if those kids are pretty shrill. It is certainly possible to use the public domain as a shortcut to success, even when the new work is decidedly less artistic than the old.

But for those of us who profess motives other than gimmickry or brand recognition, there are more layers to uncover. Adaptations can be true art. Scarlett might be an abomination, but the 1939 film adaptation of Gone with the Wind remains one of the greatest movies ever made. Romeo and Juliet is one of those works we now think of as prime fodder for ridiculous adaptations, but it is itself an adaptation of Pyramus and Thisbe. Jonathan Larson’s Rent was based on Puccini’s La Bohème, which was based on the collection of stories called  Scènes de la vie de bohème by Henri Murger. The world of storytelling, in whatever medium, would be very impoverished without adaptations.

It’s been said that there are only seven plots in all of literature, so it is to be expected that different writers will tell different versions of the same tale. The human experience is vast and unique to each individual, but also universal. We all experience the same emotions, if not always in the same proportions, and we all grapple with issues like survival, love, and justice, even if we come to different conclusions about how they should be achieved. Every now and then, a story encapsulates some aspect of our human experience so well that it becomes difficult even to imagine that part of our experience through any lens other than the story. If you think about falling in love with the “wrong” person, does your mind not inevitably draw you back to Romeo and Juliet? It doesn’t matter if the “wrong” person is from a different race, social class, religion, etc., or if the real people involved live someplace far removed from fair Verona. Two Indians of different castes have fallen in love and face resistance from their families; can you write that story without being influenced by Shakespeare? Even if an author who had never read Shakespeare made the attempt, readers and critics would draw the parallel. Some stories are so deeply embedded in our consciousness that we cannot possibly escape them.

So, too, some stories become so deeply embedded in an individual author that it would be ridiculous to deny their influence. It is simpler, cleaner, and wiser just to acknowledge our debt. I could not have written a story about a terrible sinner who is dragged by grace toward redemption that did not use Crime and Punishment as a mold; Dostoevsky’s seeds had already taken far too deep a root in my imagination. This type of adaptation is not about slavish adherence to an original, and less still about enhancing the original, but only about making use of the raw materials that beloved stories have left within our minds and souls in order to give shape to our own creations.

That, to me, is the gift we receive from mining the public domain. Every story, every piece of music, every work of art we encounter has the potential to plant a seed in our minds, to become clay for our souls, to help shape our understanding of the world and what lies beyond. The public domain gives us permission to allow those seeds to blossom, that clay to take shape. The law is designed only to affect the works of artists who are long dead. Just as the artists’ bodies decay but then give shape to flowers, grass, insects—or even rats and plagues—their works are left to fertilize new generations of artists in new and unexpected ways, both beautiful and terrible. The real miracle of the process is that, unlike a body, a work of art does not have to die to be reborn.