Thursday, November 7, 2013

Wants to Quote Tolstoy in Comedy

Tolstoy: Two Russians walk into a bar
Dear Rich: I am a playwright. I've written a comedic play in which characters quote Leo Tolstoy from War and Peace and Anna Karenina. Two characters are quoting Tolstoy to prove who knows more about Tolstoy. They also cite (for comedic purposes) the edition from which the quote came. Both of these Tolstoy books were written prior to 1923, but a number of translations were written after 1923. I'm confused if my use of Tolstoy under fair use law applies. At the Nolo website, it says "parody" is usually deemed as fair use, although my script doesn't actually "parody" Tolstoy. We think your use of Tolstoy quotes for comedy purposes is unlikely to run into problems. The Russian versions of Tolstoy's works are in the public domain throughout the world. (Tolstoy has been dead over 100 years, longer than any international copyright terms.).
However ...  Translations of public domain works are entitled to separate copyright protection. But it's a copyright with limits because the translator can never claim rights to Tolstoy's language or it's "meaning." Because the translation copyright is often fairly "thin," publishers of translations are generally concerned about preventing wholesale copying of the books, not the use of short phrases from War and Peace or Anna Karenina in a play. If you are still concerned, consider using Google Translate (and bypass the existing translations) - {:].
As for parody and fair use ... You might have misunderstood the information at the Nolo site (Here are summaries of some parody cases.) For a parody to qualify as fair use, it should be transformative. We don't think you'll be engaged in a fair use argument with a translator, but if you are, your use of the material for a purpose other than Tolstoy intended -- like you are doing -- is often considered transformative.
BTW Dept. ... Tolstoy's eventual distaste for his own literary success led him to dedicate works written after 1880 to the public domain.