James Bond Enters the Public Domain! Is This the Work of SPECTRE?

Stephen Carlisle January 15, 2015

He’s been shot, stabbed, tortured, threatened with castration (twice), dragged over a coral reef, seen his wife murdered on their wedding day, and yet, nothing has been able to stop James Bond. But now Bond faces his most powerful, unstoppable and implacable foe ever: the public domain.

While many today would regard James Bond as a cinematic hero, his origins are literary. His creator was an English newspaper journalist by the name of Ian Fleming. Like his literary creation, Fleming chased women, drank too much and smoked too much, leading to his early demise at the age of just 56 years old, on August 12, 1964. ¹ And therein lays the roots of Bond’s predicament.

Earlier in this blog, I detailed the varying rationales behind copyright duration and in particular the restrictions of the Berne Treaty. ² Recall that, at a minimum, Berne Treaty signatories are required to establish a base line of copyright protection of the life of the author plus 50 years after death. ³ Now the European Union, along with the United States, has expanded this to life of the author plus 70 years, but not every Berne nation has followed suit. There are many nations who still adhere to the “life plus 50” rule of copyright duration, including Canada, Japan, New Zealand, South Africa and Thailand. ⁴ Here is a quick visual aid to show where copyright protection is life plus 50 years or less. ⁵

Created by Balfour Smith, Canuckguy, Badged and used under a CC-BY License

And now, James Bond is in the public domain in every one of those countries shaded light yellow or less. Dying in 1964, Ian Fleming’s 50 years of posthumous protection ended December 31, 2014. Further, Fleming’s early demise has now worked against him. The Bond novel The Man with the Golden Gun and the short story collection “Octopussy and the Living Daylights” were both published posthumously, ⁶ so these works did not even get 50 years of copyright protection. Nevertheless, all 12 James Bond novels and two collections of short stories, along with all the elements contained in them are all free for the taking in those Berne countries adhering to the “life plus 50” term.

Which leads to the interesting prospect that there might be new ”unofficial” James Bond books written and even new “unofficial” James Bond movies or perhaps a television series. But this is trickier than it sounds on first consideration.

The Bond movies are certainly still under copyright in the majority of the world, and according to this article, even in Canada. ⁷ However, my research has failed to uncover the precise section of Canadian copyright law that provides for this. So whatever you did, you could copy anything created by Fleming in the books, but not copy anything that is solely the creation of the films, such as the character “Jaws” or the famous “007” gun barrel logo, as discussed below.

Of course, someone absolutely will try. Adjusted for inflation, the Bond films are the highest grossing film series in motion picture history. ⁸ The literary Bond also continues. Ian Fleming Publications has authorized 37 different novels and short stories by six different writers. ⁹

So what can you use? Yes, you could identify him as “007”. Yes, you could have your Bond utter the famous “The name’s Bond…James Bond.” as he does introduce himself this way in the Fleming books. You could have your Bond drive an Aston Martin DBIII, as Bond drives this car in Goldfinger (but no other book). ¹⁰ Your Bond could use a Walther PPK as a gun, first issued to him in Doctor No ¹¹ and order his martinis “shaken and not stirred” as he does in Doctor No, ¹² although references to this method of preparation go as far back as the first novel Casino Royale. ¹³

Some uses are a clear “can’t use.” The Bond of the books never tosses out bon mots after a narrow escape, a creation of the films. Miss Moneypenny never engages Bond in the suggestive repartee’ that she does in the films. And just in case you were so inclined, no white cat for Blofeld, and no bald Blofeld either. In the books, Blofeld has hair, with no feline in sight.

From there it gets murky rather quickly. The books are nearly devoid of the gadgets that populate the cinematic James Bond universe. So a gadget laden Bond might cross the line, or might not. The Aston Martin DBIII from Goldfinger (the book) is equipped with some gadgets (e.g. a radio tracker), but nothing to the extent portrayed in the film. Likewise, the character known as “Q” from the films has been addressed as Major Boothroyd, who is a character from the books. Yet, to the contrary, there is no character known as “Q” in the Fleming books. Is a “gadget briefing” that was a staple of the movies acceptable as long as he is called “Major Boothroyd” and not “Q”? Clearly, whoever will try to use the Fleming material is up to a considerable challenge.

Further consider this example: Bond’s best friend and compatriot is a CIA agent by the name of Felix Leiter, and he appears in several of the films. However, in just the second book, Live and Let Die, Leiter is fed to sharks and loses part of his right arm and leg. Thereafter, he has a prosthetic leg and a mechanized hook to replace his hand. He has never been portrayed in the movies this way or as having any disability at all, even after the shark scene was later used in the Bond film License to Kill (the scene does not appear in the film version of Live and Let Die at all). So if one were to include Felix Leiter, is it necessary to include his disabilities to avoid poaching on the film series? Or is he the Felix Leiter of the book Casino Royale, and pre-shark?

Also, the material in the Fleming books would have to be compared against the entire film series, not just the movie of the same name. Starting with You Only Live Twice on through until Casino Royale, the Bond movies had little or nothing to do with the books with which they share their title, save for the names of the major characters and some settings, the lone exception being On Her Majesty’s Secret Service, which does closely follow the plot of the book. However, odd bits and pieces did crop up in later films. For example, a scene in which Bond and the heroine are dragged over a coral reef occurs in Live and Let Die, but does not turn up in the films until For Your Eyes Only. The character of Milton Krest and his boat the WaveKrest occur in the short story collection “For Your Eyes Only” but turn up later in the film License to Kill.

And then there is the whole problem with SPECTRE. The book in which the criminal organization first appears, along with Bond’s arch-nemesis Ernst Stavro Blofeld is Thunderball. This book was the subject of a bitter court fight between Fleming, Kevin McClory and Jack Wittingham. The latter two were co-writers with Fleming of an unmade Bond movie script title Longitude 78 Degrees West. ¹⁴ It was alleged that Fleming lifted large parts of the co-written script, and then inserted them in to a book attributed solely to Fleming. ¹⁵ The parties settled out of court in 1963. ¹⁶ The Thunderball book remained attributed to Fleming, with the proviso that a note was inserted into the book that it was based on the screenplay written by the three men. ¹⁷ The Thunderball film rights were awarded to McClory along with all the material contained in all of the drafts of the script. ¹⁸ McClory died only recently, in 2006, ¹⁹ so his copyrights are very much alive. For their part, EON Productions, the Bond film producers, have now acquired all of McClory’s rights from his estate. ²⁰ This allows the SPECTRE organization to return for the upcoming Bond film of the same name.

Yet oddly enough, this leaves EON in a bit of a pickle. They, for decades, have vigorously contested in more than one lawsuit that McClory merely had the films rights to Thunderball and nothing more. After all, Fleming used both SPECTRE and Blofeld (seemingly without objection) in two subsequent novels. For his part, McClory later claimed copyright over all aspects of SPECTRE, including Blofeld, with this leading EON to abandon all mention of them after the film Diamonds Are Forever. Attempts by McClory to assert these rights were defeated by EON and later affirmed by the 9^th Circuit Court of Appeals in Danjaq, LLC. V. Sony. ²¹

So, let’s project that a Canadian writer wishes to write a new Bond book, including SPECTRE and Blofeld. In the inevitable lawsuit, EON will assert the rights obtained from McClory’s estate. However, the writer will be able to counter with piles of court documents in which EON has claimed the exact opposite, namely that McClory had no rights. To the extent that Fleming had any rights in either SPECTRE or Blofeld, the writer will point out that they have now passed into the public domain.

So what rights can be exploited, and how? The books themselves may be freely reprinted and distributed, but only in those nations which adhere to the life plus 50 copyright term. For example, in the United States, infringement includes importation of copies acquired abroad, if they would be infringing if made domestically. ²²

It also seems clear that new James Bond books could be written, and only distributed in the restricted territories as noted above. Ian Fleming Publications have had their rights lapse, and EON Productions, the makers of films, not books, would not seem to have any standing (i.e. legal injury) that would give them the ability to file a viable lawsuit.

Yet, here is where the internet comes into play. If e-books are made in Canada, yet purchased in the United States, would this not constitute infringement? It seems that it would. Yet just how would a Canadian publisher know, without directly asking, where the purchaser is located? Is there an affirmative duty upon the Canadian publisher to find out this information?

Now let’s say the product is a motion picture, television series or web series. Being audio-visual presentations, the producers would have to carefully craft their product to ensure it does not infringe on the original material created by EON Productions, as noted above. If a TV program is broadcast in Canada, but “leaks” over the border, is this infringement? If the web series is streamed, does the producer have an affirmative duty to ensure that it is not streamed into “life plus 70“countries? Hard to say at this juncture, but I’m sure we’ll find out. EON has not hesitated to use the legal system to protect their brand, most recently against Universal Studios. ²³

Is there potentially any relief available in the arena of trademark law? This method was discussed in a previous blog post about Mickey Mouse and the public domain. ²⁴ According to the U.S. Patent and Trademark Office, the name “James Bond” is not currently subject of a trademark registration, but “James Bond 007” is. This is not a plain text mark, but stylized mark featuring the familiar “007” gun barrel design. While the registration includes “Entertainment Services by Means of Motion Pictures” it seems that they have limited themselves to use of the mark as drawn. Here is a screen shot of the James Bond registration:

As discussed in the Mickey Mouse blog post, EON faces several hurdles on a trademark theory. First, unlike Mickey, he does not have a stylized appearance, having been portrayed (officially) by six different actors. Next, Bond’s “creator” or “source” is Ian Fleming, not EON. Also, in order to be protected as a character, Bond needs to have achieved secondary meaning. As noted above, certain traits of Bond’s character are indeed the property of EON, but many were created by Ian Fleming, and the Bond films have been made by three separate film studios, United Artists, MGM and now Sony/Columbia.

Anyone who undertakes to make new Bond works, especially audio-visual works, will need to have a great deal of nerve, the willingness to engage in a long and intense fight and deep pockets to stave off the inevitable litigation.

Hmmm. Sounds like SPECTRE to me.