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Looking to be masters of public domain

IT’S TIME TO BRUSH OFF those CliffsNotes.

When the Supreme Court rules today on Eldred vs. Ashcroft — a case challenging the constitutionality of the 1998 Sonny Bono Act, which extended copyright by 20 years — it could send a stack of literary classics, including “The Great Gatsby” and “A Farewell to Arms,” into the public domain.

That means development execs hoping to sidestep a costly Hollywood book market would, virtually overnight, gain access to a wealth of free source material with a built-in audience.

These books are no sure thing. Some have been adapted before with mixed results (over the years, at least eight films have been produced from “Gatsby” and “Arms” combined, not all of them successful).

But scores of previously unadapted books and stories from such writers as H.G. Wells, Edith Wharton, George Orwell, Theodore Dreiser, Ford Maddox Ford, Rudyard Kipling, Sinclair Lewis and Virginia Woolf — all under copyright under the Sonny Bono Act — would be up for grabs.

A TREND TOWARD public-domain material is taking shape in Hollywood. Among the growing ranks of new and recent productions based on uncopyrighted source material are “The Time Machine” from DreamWorks, “Vanity Fair” at Universal Focus, “Around the World in 80 Days” at Walden Media and “Troy” at Warner Bros., based on that quintessential public-domain book, “The Iliad.”

Uncopyrighted books from the literary canon are appealing for a number of reasons:

  • There’s no upfront development cost. As one book rep puts it, “If a studio could avoid paying $4 million for a book with an enduring audience, it would be manna from heaven.”

  • They give development execs a rare opportunity to put their college degrees to good use.

  • Most significant, in an age of merchandise-driven tentpoles, they’re pre-branded star vehicles that hold the seeds of franchises that can be cross-marketed from classrooms to malls and multiplexes.

A BUSLOAD OF COPYRIGHT lawyers has descended on Washington to hear oral arguments in the case, which has driven a wedge between a handful of copyright professors, writers and library associations who have filed briefs in support of the plaintiff, book dealer and online publisher Eric Eldred, and the music publishers, book publishers and entertainment companies who have filed briefs in support of the appeals court ruling.

Among the companies fighting to preserve the Bono Act is the estate of Dr. Seuss, which has taken great pains to protect the image of Theodor Geisel’s classic kids books. Randall Kay, an attorney with Gray, Cary, Ware & Friedenrich (which reps Seuss, along with works by E.B. White and Ludwig Bemelmans), says what’s at risk is the dilution of the brand that would come with the expiration of copyright. The Seuss estate successfully sued a few years ago to suppress publication of psychedelic renderings of Dr. Seuss’ Cat in the Hat smoking a pipe.

If the image lost its wholesome appeal for kids, Kay contends, the feature film license would lose its cachet. “No financial backer would underwrite a feature film without intellectual property protection,” he says.

Even so, the expiration of copyright doesn’t grant producers free use of such characters. Beatrix Potter’s Peter Rabbit books are in the public domain, but the famous line drawings associated with them remain protected by a trademark, which doesn’t have a finite expiration date.

And there will always be avenues around such restrictions. Literary adaptations, after all, often depart wildly from their sources, and Hollywood directors routinely cannibalize previous movies without paying copyright fees.

“That’s why the ‘Rocky’ series did not infringe the copyright of every previous movie about a professional boxer, and every subsequent movie about a professional boxer didn’t infringe on ‘Rocky,’ ” says Lon Sobel, a visiting professor at Southwestern Law School.

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