Fear The Walking Dead’s Copyright Lawsuit: Are Settings Copyrightable?

Fear The Walking Dead’s Copyright Lawsuit: Are Settings Copyrightable?

George Romero’s 1968 Night of the Living Dead created the modern zombie genre, and the legacy of the classic film lives on thanks to a clerical error that made the film part of the public domain.

Had it been copyrighted, it’s difficult to say how many zombie flicks, TV shows, comic books, and even Halloween costumes we would have missed out on. Much like how it would be an infringement of Lucasfilm (and now Disney’s) copyright for someone to write an unlicensed book about Jedi, it’s entirely conceivable that anyone who produced art involving undead creatures mindlessly shambling to eat human brains would have had to pay for the rights to do so.

But this hasn’t stopped AMC’s Fear the Walking Dead from being slapped with a lawsuit from the creator of Dead Ahead, a comic book about the zombie apocalypse. What original idea did the show’s writers crib from the 2008 comic book? The protagonists avoid the apocalypse by going out to sea.

According to The Hollywood Reporter, Dead Ahead is about a fishing trip that goes horribly wrong when, back on dry land, the world is hit with a zombie apocalypse.

Fear the Walking Dead is also a postapocalyptic zombie series set near water, though it’s the specific expression — and not the general idea nor scenes a faire — that matter in terms of copyright protection. There’s also the possibility that much zombie lore is in the public domain, as mentioned above, but anything new and original gets its own copyright.”

As far as specific expression is concerned, it’s likely the case will go nowhere. The protagonists in Fear escape a zombie-infested Los Angeles after the outbreak of the apocalypse and spend part of season two out at sea, whereas Dead Ahead appears to be based on a group that unwittingly finds itself in the midst of a zombie apocalypse after they go out to sea for a fishing trip. I have not read Dead Ahead, but from this description the similarities seem superficial at most.

The 2004 remake of Dawn of the Dead features the main characters escaping by boat, too, though I am not aware of any copyright litigation associated with this film. 

It’s unclear what the outcome of the litigation will be, but supporters of free expression should be worried, even if the suit is thrown out. Excluding cases of outright copying by an unauthorized party, strict copyright protections hinder the ability of new artists to borrow from older works. As T.S. Eliot said, “immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.”

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By |2018-07-02T12:37:11-07:00July 2nd, 2018|Blog, Intellectual Property|