And Bart, absolutely the “chill factor” is a very serious extension beyond the limits imposed by the law. As I say, the Canadian Intellectual Property Office makes it clear that in Canada plot & character are fair game, YET who’s to say Ionesco’s estate (or for someone else, Disney Corp. or whoever) won’t drum up an excuse to launch a suit in spite of this, which poor little individual creators have no resources to defend against.

I suppose the only compensating thought I can have is: what brilliant publicity would it be for ZOMBOCEROS (as I’d really like to call it if I had the courage to risk the suit) to generate a lawsuit against me. And really, what’s the financial risk? A Cease and Desist Order? Pay the value of the rights had I obtained them? (I’m reminded of Craig Walker’s decision to ignore a Stratford Festival lawyer’s letter threatening a suit if Theatre Kingston proceeded to use an image of Shakespeare owned by the Festival to publicize a Shakespearean production, on the basis that the attention gained would be much better for the company & production than any financial compensation they might be forced to pay.) But the fear of it being much more than that—hell, the fear that I’d actually have to resort to hiring lawyers alone, or that I’d have to pay Ionesco’s estate’s legal fees—quickly dismisses that fanciful thought.

And Bart, absolutely the “chill factor” is a very serious extension beyond the limits imposed by the law. As I say, the Canadian Intellectual Property Office makes it clear that in Canada plot & character are fair game, YET who’s to say Ionesco’s estate (or for someone else, Disney Corp. or whoever) won’t drum up an excuse to launch a suit in spite of this, which poor little individual creators have no resources to defend against.

I suppose the only compensating thought I can have is: what brilliant publicity would it be for ZOMBOCEROS (as I’d really like to call it if I had the courage to risk the suit) to generate a lawsuit against me. And really, what’s the financial risk? A Cease and Desist Order? Pay the value of the rights had I obtained them? (I’m reminded of Craig Walker’s decision to ignore a Stratford Festival lawyer’s letter threatening a suit if Theatre Kingston proceeded to use an image of Shakespeare owned by the Festival to publicize a Shakespearean production, on the basis that the attention gained would be much better for the company & production than any financial compensation they might be forced to pay.) But the fear of it being much more than that—hell, the fear that I’d actually have to resort to hiring lawyers alone, or that I’d have to pay Ionesco’s estate’s legal fees—quickly dismisses that fanciful thought.

As a copyright lawyer myself, I would argue that Shakespeare is likely in the clear for all of his plays because, while the ideas, basic plots and facts may have been borrowed, the actual text of the plays themselves is original. It’s the expression of the ideas that is protected, not the ideas themselves.

That being said, if DanishCorp, Inc., the Elizabethan multinational corporation (makers of fine products such as Hamlet™ brand grave digging services and the ever-popular Ophelia™ brand swimsuit) had decided to take a run at poor Will with a massive lawsuit alleging defamation, copyright infringement and/or trademark infringement and demanding an injunction against the play, huge amounts of damages and all of his profits, who could blame him for knuckling under? You may win in the end, but who wants to pay the legal bills in the meantime?

As you say, the problem now is what sort of chilling effect is this uncertainty having on artists and writers? What works aren’t being created or published because the author is afraid of getting sued?

As a copyright lawyer myself, I would argue that Shakespeare is likely in the clear for all of his plays because, while the ideas, basic plots and facts may have been borrowed, the actual text of the plays themselves is original. It’s the expression of the ideas that is protected, not the ideas themselves.

That being said, if DanishCorp, Inc., the Elizabethan multinational corporation (makers of fine products such as Hamlet™ brand grave digging services and the ever-popular Ophelia™ brand swimsuit) had decided to take a run at poor Will with a massive lawsuit alleging defamation, copyright infringement and/or trademark infringement and demanding an injunction against the play, huge amounts of damages and all of his profits, who could blame him for knuckling under? You may win in the end, but who wants to pay the legal bills in the meantime?

As you say, the problem now is what sort of chilling effect is this uncertainty having on artists and writers? What works aren’t being created or published because the author is afraid of getting sued?

At the bottom line, what I find fascinating about your dilemma is that the very nature of it suppresses your expression. You’re caught up in questions of what is or is not allowed — questions which you and I cannot even answer — and those questions are now in the way of you going ahead and improving upon Ionesco with zombies. Who wins?