IP Picks🔎: 007's Trickiest Mission Yet — the Public Domain
âž• A '70s political thriller and a procedural set in the world of college sports
Welcome to The Optionist. Thanks for reading along.
The blockbuster news that Amazon is taking the creative reins of the long-running James Bond franchise from the Broccoli family broke shortly after I filed last week’s column. Still, I wanted to touch on one aspect of the deal that has been largely overlooked.
Ian Fleming's original Bond novels will enter the public domain in the U.S., U.K., Australia, France and Germany in 2035 (they're already public domain in Canada and Japan). This has been presented as a sword of Damocles hanging over the franchise that will damage 007's value when the clock strikes midnight on Jan. 1, 2035. However, that doesn't capture the nuance or complexity of IP law.
Public domain is often presented as an either/or proposition — something either is or isn't in the public domain. On some basic level, that’s true. But in practice, it is far more complicated. That's partially because copyright law and the rules of public domain never really envisioned what we have today with corporate-owned characters that are perpetually in the marketplace. Rather, those rules were more concerned with examples like Sherlock Holmes, where an author like Arthur Conan Doyle produced new stories for a discrete amount of time (even if the stories themselves remained continuously in print).
How does this relate to Bond? Although Fleming’s books will indeed become public domain, the movies are still protected by copyright and trademark. After 2035, people can adapt the books or the character, but they cannot use elements that were original to the movies. There's a reason why the first public domain uses of Winnie-the-Pooh and Mickey Mouse’s precursor, Steamboat Willie, turned up in horror films. Those movies made those characters clearly distinguishable from the Disney versions.
The Bond movies veer significantly from the novels, which both helps and hurts when they enter public domain. It helps because if someone sticks close to the books, it might be easier to avoid an infringement claim. It hurts because if you add any element that’s been used exclusively in the movies you’ll run the risk of being sued for infringement. Who wants to go through the hassle and expense of tangling with Amazon in court? I suspect that a legal dispute along these lines would like the ER/The Pitt dispute on steroids.
Here’s an example that I think illustrates the complications: In the books, James Bond drives Bentleys — and only Bentleys. But at the multiplex, 007 gets behind the wheel of such luxury cars as an Aston Martin DB5 (Goldfinger) and a Lotus Esprit that doubles as a submarine (The Spy Who Loved Me). Someone making their own Bond, especially a similar action/spy movie version, has to tread carefully if they include souped-up automobiles. This also extends to lots of the cool tech that comes out of Q branch. Book James Bond is a lot more low-tech than movie James Bond.
All of this isn't to say that it can't — or won't — be done. Just that doing it is harder than most of the pundits suggest. Most of the analysis surrounding this tricky issue makes it seem like Bond entering public domain will be like turning on a spigot that will produce a deluge of double-O knockoffs that will threaten the Amazon franchise. I don't think that's going to happen.
The value of the Bond franchise might diminish after 2035, and over time, competing versions might create problems. But Amazon retains so many legal protections that will make that difficult. We're going to see this issue come up again and again over the next decade or so as other popular characters — Superman, Batman, Captain America — enter the public domain. But the basic facts will be the same: While the original elements give creators lots to work with, the long history of the characters and the flourishes that have been added to them over time will put limits on their exploitation.
On to this week’s picks, which include a throwback political thriller and pair of great family dramas. The full lineup:
A fantasy/thriller about the search for magically cursed art
A mystery about a rookie FBI agent investigating corruption and murder in big-time college athletics
A dark comedy/family drama about the siblings of a famous artist who steal his body after their stepmother tells them they’re not invited to the funeral
A Succession-like family drama set in a magical fantasy world
A true-crime thriller from the 1970s about a plot to kidnap a Swedish politician
