Art is the closest thing we have to immortality. And when an artwork enters the public domain, it becomes—fortunately—undead: liberated from the mortal constrictions of copyright, now free to haunt new viewers and readers. Horror fans have the public domain to thank for successes like Dawn of the Dead (1978, dir. George A. Romero) and Nosferatu (2024, dir. Robert Eggers).

Put another way, it is only thanks to the failures of copyright law that vampires and zombies are now free to haunt the creations of any artist. Because of a small mistake in film editing, Night of the Living Dead (1968, dir. George A. Romero) was never copyrighted. Remarkably, this mistake didn’t just end up making the creators more money, it also meant that that film created how we understand zombies today: everything from The Walking Dead (2010–22) to 28 Days Later (2002, dir. Danny Boyle). Similarly, today’s Nosferatu is only the latest in a string of movies and shows based on Bram Stoker’s novel, each of which reinforces the others and drives revenue and creativity to new works of art.

The intertwined success of both Dracula and Nosferatu shows how the horror genre builds off of itself, and, moreover, can easily accommodate multiple versions of similar stories to find large audiences. Horror media has long built off of similar themes and characters. Humans are scared of the dark, sharp teeth, blood, death, and corruption. Put these fears together and you get the vampire. But of course, aspects of the vampire genre that are now ubiquitous, like an older vampire’s obsession with a young mortal, started as unique plot points of a copyrightable story. This narrative goes back at least to 1872 (although the vampire’s age is never explicitly stated in Carmilla), and is repeated in Dracula, Nosferatu, Interview with the Vampire, and even Twilight (2008, dir. Catherine Hardwicke). These once protectable elements erode over time until they become unprotectable scènes à faire, or common tropes of the genre. But building off of these earlier plots is how horror monsters develop and grow.

Basing new creations, even derivative stories like Nosferatu, on older stories is how the horror genre builds its mythology. For example, in Dracula, the sun weakens the titular vampire, but it does not kill him. Nosferatu made a big change to this piece of vampire lore, making the sun’s rays fatal to the vampire. This novel element took hold in vampire stories ever since and is now a trope even casual fans of vampire stories know. The fatality of the sun is no longer something unique to Nosferatu, but a common trope within nearly all vampire stories ever since (with one notable, sparkly exception). Allowing re-creation of known stories by new authors gives these monsters an afterlife of their own, leaving lasting impacts on the genre for decades, or even centuries to come.

The public domain has reanimated and revamped the horror genre time and time again. In a genre that is rife for retellings and new perspectives, it makes sense that these creatures of the past continue to scare us in new ways today. Some things that scare us never change, but the ways in which they scare us can provide new insight into the present day. Both Nosferatu and Night of the Living Dead provide key examples of how vital the public domain is for horror and can provide insights to rework copyright law to revitalize the genre.

Reanimated

Few monsters have hunted the public consciousness for as long as zombies. Archaeologists excavating ancient Greek tombs have uncovered skeletons pinned down by rocks and other heavy objects, perhaps in fear of that body coming back to life. And as far back as the 17th century, Haiti has had its own zombie folklore that mirrored the inhumanity faced by enslaved people: as the undead continued to be enslaved by whoever reanimated their corpse. But for the modern understanding of the undead, no type of zombie has had quite an impact as those featured in 1968’s Night of the Living Dead.

Most horror movies begin with a fatal mistake; so too does the story of how Night of the Living Dead was reanimated within the public domain. At the time, copyright law required certain formalities. Copyright protection was not granted to just any original work made tangible by an author. That protection required a certain sigil—a copyright notice—be placed within the film itself. At the last minute, the film’s name was changed from Night of the Flesh Eaters to Night of the Living Dead, meaning that the title card also had to be changed. In the rush to change this card, the copyright notice was left on the cutting room floor, and a horde of zombies was thus released into the public domain.

This film introduced a new type of zombie into the public consciousness, one that was not beholden to something else. Before Night of the Living Dead, most pop-culture zombies matched those from Haitian folklore: These zombies could be destroyed by killing whoever was controlling them and did not create more zombies through their bites. Such monsters reflected the horrifying realities experienced by enslaved Haitian at the time; and, analogously, Night of the Living Dead fleshed out its own monsters by reflecting the fears of its own era. In this 1968 version, the zombies are created by radiation, and they work individually to kill any living human they come across. They can reproduce by biting humans, allowing zombies to hide among groups and attack from within. While within the film itself these creatures are called “ghouls,” this portrayal caught on with audiences and has inspired the modern conception of zombies as individual hunters rather than a controlled hive mind.

In conversation with the Haitian origins of its monsters, Night of the Living Dead offers a comment on racialized fear of “the other.” At the end of the film, Ben, one of the main characters and a Black man, is killed by an armed posse that mistake him for the ghouls they are hunting. Despite surviving the literal monsters of the film, Ben is killed by humans who fail to recognize his shared humanity.

This portrayal opened up not only how zombies could be portrayed but also held a mirror up to a society that had only recently outlawed segregation and held deeply entrenched racist norms. The ghouls themselves and their creation through supposed radiation reflected Cold War fears of apocalyptic destruction. Night of the Living Dead updated the zombie narrative to reflect relevant fears and societal struggles, something zombie movies have been copying ever since. The zombies in the sequel, Dawn of the Dead, represent capitalistic consumerism, with the movie taking place in a shopping mall. Films like 28 Days Later present updated fears about global contagion, with zombies being created by a virus causing societal collapse. This reflects fears surrounding Ebola, HIV/AIDS, and the avian flu in the ’80s and beyond. In the wake of the COVID-19 pandemic, it’s no shock that we are getting a sequel in 28 Years Later, set to release in June 2025.

The proliferation of Night of the Living Dead’s portrayal of zombies is closely tied to its accidental release into the public domain. The film could be viewed by a much wider audience, was more widely available, and has remained publicly available over 50 years after its original release. The film received hundreds of home video releases, with more than 200 versions released on tape alone. The lack of copyright on the film meant that distributers could release it without paying for distribution rights, making it a low-burden film to distribute. Versions have been distributed on Betamax, VHS, DVD, Blu-ray, and LaserDisc, allowing for new viewers to watch the film in updated formats for decades after its initial release. The invention of the internet made the film even easier to access, with the full movie available on Internet Archive. In fact, Night of the Living Dead is Internet Archive’s third most-viewed film, with 3.5 million views as of January 2025.

The countless versions of Night of the Living Dead have kept the movie alive, scaring new generations of audiences with every fresh release. The film has become so important to film and horror history that restoration projects were taken by the Museum of Modern Art and the Film Foundation in 2015, then released on Blu-ray by the Criterion Collection in 2018.

Perhaps most interestingly, Night of the Living Dead’s presence in the public domain has given it an afterlife in later films. Since anyone can use the film, Night of the Living Dead often appears on the tv and movie screens of characters within other horror stories. Pay close attention to Halloween II (1981, dir. Rick Rosenthal), Scary Stories to Tell in the Dark (2019, dir. André Øvredal), and even Buffy the Vampire Slayer (1997–2003) and you can see scenes from Night of the Living Dead playing for the characters. The infamous ghouls have become icons of the horror genre, due in large part to their accessibility as part of the public domain.

Allowing re-creation of known stories by new authors gives these monsters an afterlife of their own, leaving lasting impacts on the genre for decades, or even centuries to come.

All this free distribution might make you feel bad for the creators, seemingly cheated out of these licensing fees. However, Night of the Living Dead became one of the most profitable horror films produced outside a major studio, grossing over $12 million at the US box office in the decades after its release. The film did similarly well in Europe, becoming its top grossing film in 1968. George Romero, the director of Night of the Living Dead, also went on to create a total of six movies based on similar premises. Most famously, Dawn of the Dead went on to make $55 million at the box office, with a budget between $640,000 and $1.5 million.

Ultimately, Night of the Living Dead’s accidental release into the public domain seems to have only successfully skyrocketed the film into a classic of the horror genre. And this, in turn, allowed the director to make several successful sequels, while transforming the popular understanding of zombies for decades to come. It may be true that Night of the Living Dead would have been a classic regardless of its copyright status. But it is certainly true that this movie has withstood the test of time, at least in part, because it is within the public domain. It’s reanimation into new formats as technology advances has allowed new audiences to find this film, inspired new generations of filmmakers, and has left an indelible mark on horror history and zombie movies for a long time to come.

Revamped

The new Nosferatu is the perfect example of Oscar-nominated horror that would not exist without the public domain. A century ago, the 1922 film Nosferatu: A Symphony of Horror (dir. F. W. Murnau) was meant as a retelling of the Bram Stoker’s Dracula. Although the names, several plot points, characters, and locations were changed, still, the general plotline of Nosferatu matched that of Dracula very closely. Both stories involve a vampire who lives in a scary castle, a young man sent to that castle to do business with the vampire, and a focus on the vampire’s obsession with that young man’s love interest. The original Nosferatu film even acknowledged Dracula as the source material.

Bringing the 1897 classic novel into a new age may have been exciting to audiences. But it certainly did not please Bram Stoker’s widow, Florence Stoker. She supported herself on royalties from Dracula, and understandably did not want her ability to sell those rights threatened. Hearing of Nosferatu and its similarities to her late-husband’s work, Stoker sued the production company behind the film’s creation. She won her case in a German court, which ruled that all copies of Nosferatu be destroyed. At the time, it looked like the only way to kill a vampire was through the courts.

Every horror fan knows that the monster is never truly dead the first time you think you’ve killed it. Florence Stoker should have heeded this advice.

Different sources offer different versions of how exactly Nosferatu’s Count Orlock came back to life. In all versions, some copies of the 1922 film survived the court-ordered destruction, having made their way beyond German jurisdiction. Bootleg copies and small screenings began showing up in other countries, spreading the plague of copyright infringement faster than Count Orlock’s rats. The Library of Congress tells a story of an even closer call, where the vampire only barely escaped a second destruction. Stoker was a British citizen, so under the Chace Act, his work was eligible for copyright protection in the US. However, to get this protection, Dracula needed to have two copies deposited with the Copyright Office. Yet because the Stoker estate failed to deposit these copies, Dracula slipped into the US public domain. This meant that the courts could not reach Nosferatu in the US, and Nosferatu was, thus, free to tighten its shadowy grip around theatergoers for generations to come.

There are, of course, definitive similarities between Dracula and Nosferatu. But what is most interesting is what was changed between the novel and the film, and again in subsequent adaptations. While Count Dracula is talkative, classy, and able to pass himself off as mostly human, Count Orlock is horrifying from the beginning. The 1922 film fashions him after a rat, with all the sickly and dangerous connotations that come with that. This is emphasized in Werner Herzog’s 1979 remake, and again in Robert Egger’s 2024 adaptation: Count Orlock loudly wheezes, an audible manifestation of disease and plague.

The narratives also diverge on how they treat the main female character, Mina/Ellen. In Dracula, Mina is mostly a victim of the vampire. Dracula drinks her blood, and she is doomed to become a vampire unless Dracula is killed. Mina’s psychic connection to the Count helps lead the band of hunters to him, but it is the male protagonists who kill the monster. In Nosferatu, it is Ellen who realizes that she has the power to kill the Count. And it is she that invites the vampire to feed on her, and, by thus distracting him until the sun rises, kills him.

These are hardly minor changes. Dracula and Nosferatu tell completely different stories, despite hitting the same beats. The success of both of them, and their multiple adaptations since, show that there is room for similar stories and that the dangers of derivative works like Nosferatu are overblown. Fans of vampire stories might have a favorite version of the story, but they are likely to go see (or read) both. The only thing better for horror fans than one excellent vampire story are two excellent vampire stories.

Dracula’s residence in the public domain has expanded access to this classic as technology has improved, allowing new generations to familiarize themselves with the source material for free. Dracula Daily, a Substack that brings readers the text of Dracula for free to their inboxes, is only possible because the text is in the public domain. Dracula is an epistolatory novel, told through journal entries, letters, and newspaper articles. Dracula Daily sends readers an email with the chunk of Dracula that takes place on the date the email is sent. Readers get to experience the novel in real time, as it would have taken place. This creates a new experience for readers of the of the 125+-year-old novel.

Working with previous stories also encourages creativity within storytelling. The changes made to Nosferatu that make it distinct from Dracula create a story that is more reflective of the time and location of its creation and result in a film that has inspired new generations of filmmakers. If Dracula had not been in the public domain in the US in 1922, we likely would not have the 2024 Nosferatu remake. But we might also not have any of Robert Eggers’s other movies. In interviews, Eggers has stated that it was seeing the original Nosferatu and being inspired to adapt it for the stage at his high school that inspired him to become a director in the first place. Horror fans therefore have the public domain to thank for movies like The Witch and The Lighthouse. Ultimately, Dracula’s lack of copyright protection has led to a proliferation and revamping of the vampire genre, giving audiences new perspectives on known stories and creating new iconic heroes and monsters.

Reworked

So if the public domain does so much good for horror, how can copyright law be reworked to allow for this creativity, while still protecting authors? This balance is a tough one to strike, but there are personal and national steps that can be taken to get closer to perfecting this balance.

On a personal level, authors can choose either Creative Commons licensing, or just putting their works into the public domain automatically. Creative Commons licensing allows for the author to limit the permitted uses of the work, while still allowing for greater access to the work. Different licenses allow for different uses. For example, Creative Commons BY licensing allows new creators to distribute, remix, adapt, and build on the material as long as credit is given to the original creator. Had this licensing scheme existed at the time, Nosferatu easily could have fit under this license, as it credited Dracula as the source material.

The CC0 license also allows for works to go directly into the public domain, much like Night of the Living Dead did. This might be risky for authors since there is no requirement for creator credit. Still, such a license could allow an author to get widespread distribution of a work that might otherwise never gain traction.

On a national level, shorter copyright terms and the reintroduction of formalities would allow for works to enter the public domain sooner. For works created after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years. Most works just are not making money 70 years after the death of the author. Shorter copyright terms, even with an option to reinstate another term if the work is still profitable, would allow lesser-known works to reenter the public consciousness through the public domain. It also was mistakes in copyright formalities that allowed for both Nosferatu and Night of the Living Dead to be so prolific. Reintroducing these formalities provides an opportunity for these “happy accidents.”

Copyright is meant to encourage artists to create by guaranteeing protections for their creations. However, these case studies show that sometimes when it comes to copyright protections, less is more. Artists who want to make a lasting impact, encourage wide distribution, and allow others to build off their work, might be better off Creative Commons licensing their work or with a reworked copyright law landscape. For some, the scariest thing about horror movies is what is on the screen. However, the actual scariest thing about so many of our favorite horror films is how close they came to being killed, like Noseferatu himself, by the harsh rays of copyright law.