Ridiculous Law Leads to Highest-Rated Show Ever, ‘The Walking Dead’

Anybody older than 25 should know the zombie genre did not start with The Walking Dead. Anybody older than 35 probably even saw the zombie movement happen.

It all really started with the 1964 movie version of Richard Matheson’s 1954 world-ending pandemic novel, I Am Legend. The movie, which Matheson grew to loathe (upset with rewrites of the movie’s script, Matheson requested to be referenced as Logan Swanson in the credits), was called The Last Man on Earth and starred Vincent Price in the lead role of a man against a world full of vampire-like pandemic sufferers.

The afflicted were described in Matheson’s book as moving very fast, like in the 2007 movie version of I Am Legendstarring Will Smith. But in The Last Man on Earth, the afflicted moved very slowly. They are the first “slow walkers.”

This is not the only difference between the 1964 adaptation and Matheson’s original text. Also, arguably the zombie bug started with the book and not the movie, but I think the slow moving factor is the deciding factor there.

Four years after The Last Man on Earth hit the theaters, a couple of guys named George Romeroand John Russo had written a script that started as a horror comedy called “Monster Flick” and morphed into a story about recently undead flesh eaters. The duo, Romero in particular, openly admitted that they had “basically had ripped off” Matheson’s I Am Legend. The biggest difference was that Matheson used the vampire angle, and Romero and Russo used the undead angle.

The film was released in 1968 to an unsuspecting public. There were kids cringing and crying in their theater seats (this is before we had the MPAA rating system), phrases like “orgy of sadism” were used in reviews, and one reviewer even suggested the Supreme Court of the United States should make the film the “outer limit [of the] pornography of violence.”

Under ordinary circumstances, the movie may have been groundbreaking, or it may have died out along with all the moviegoer’s tears. Instead something else happened.

Due to a legal “oops” by the movie’s distributor, Night of the Living Dead was immediately thrust into the public domain. This meant that anybody and everybody could show the film anytime and anywhere without paying anybody anything.

As an attorney, musician and dabbler in film, copyright laws simultaneously fascinate and enrage me. But I must admit this particular technicality in copyright history, among many others (some of which are still on the books), remains one of the most ridiculous of them all.

First, let’s start with the law as it is now:

Today, in the United States, any person can claim a copyright for an original work that is fixed in a tangible medium of expression. So Romero and Russo could have claimed a copyright on the screenplay as soon as they wrote it down, and for the movie itself, as soon as the images were fixed to film.

But before 1989, if you wanted to claim a copyright, you had to put an actual copyright notice on the work the first time it is published to the public. So, the first time the film is released to the public, there would need to be the actual word Copyright or the abbreviationCopr. or the copyright symbol © somewhere in the credits, followed by the year of publication and the copyright holder’s name.

The heartbreaking thing is that Image Ten Productions, the company that funded the film’s production, had included a copyright notice in the first print of the film when it was called “Night of the Living Flesh Eaters.” Then when the Walter Reade Organization, the film’s first distributor, got ready to distribute the film to the public, they changed the name to the slightly more palatable “Night of the Living Dead”, but theyforgot to include a copyright notice.

So when Night of the Living Dead was first released to the public without the legally required copyright notice, the film immediately entered the public domain.

This was, of course, devastating to the filmmakers at the time. But over time, it may have been the best possible thing for them, and for zombies.

While the filmmakers made some money off of the the initial distribution of the film by Walter Reade, over time people starting taking advantage of the public domain status and showing the movie without paying any money for it. Most significantly, starting in the mid- to late-1980s, when VHS (and don’t forget Betamax!) home video was becoming popular, there were home video distribution companies releasing the movie left and right because they did not have to pay anybody for the rights.

This legal piracy inspired an underground movement—a veritable cult of over-the-top fanfare and plastic flesh-eaten faces.

Since the original Night of the Living Dead, the Romero team has released (with proper copyrights) a 1990 remakeof the film, plus a few more “of the Dead” movies (Dawn of the Dead, Day of the Dead, Land of the Dead andSurvival of the Dead). Romero himself has amassed an estimated $35 million in net worth today. And the zombie movement is stronger than ever. AMC’s The Walking Dead is the highest-rated show in cable television history. The fifth season ends this March 29, and AMC renewed the series for a sixth.

Now, I am not in favor of asinine copyright laws. In fact, we still have a lot of work to do today, particularly in music. But I think it is safe to say that without this infamous legal snafu, the undead may still be dead.

NOTE: In another bit of copyright craziness, Last Man on Earth entered the public domain in the 1980s when its caretakers failed to renew the film’s copyright. It’s like there is a pandemic of careless copyrighters in the zombie genre!

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