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 domain materials in new ways (i.e., to make derivative works by adding to and recombining elements of the public domain materials). “[W]here a work has gone into the public domain, it does in fact follow that any individual is entitled to develop this work in new ways.” Pannonia Farms, Inc. v. USA Cable, 2004 WL 1276842, at *9 & n.20 (S.D.N.Y. June 8, 2004) (rejecting the theory that the plaintiff’s copyrights in nine original Sherlock Holmes stories gave the plaintiff the exclusive right to make derivative works featuring the Holmes and Dr. Watson characters because fifty-plus earlier stories already had reached the public domain). Nevertheless, this freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright.

For example, in Silverman v. CBS Inc., 870 F.2d 40 (2d Cir. 1989), a number of pre-1948 Amos ‘n’ Andy radio scripts had entered the public domain. However, CBS held valid copyrights in a number of post-1948 radio scripts and, arguably, in a later television series. In 1981, Silverman began developing a Broadway musical version of Amos ‘n’ Andy, and CBS alleged that his script infringed its copyrights. Like AVELA here, Silverman argued that because the pre-1948 Amos ‘n’ Andy scripts were in the public domain, he was free to make any derivative work he wished featuring the Amos ‘n’ Andy characters. The court disagreed, holding that derivative works based on the public domain scripts still would infringe to the extent they used “any further delineation of the characters contained in the post-1948 radio scripts and the television scripts and programs, if it is ultimately determined that these last items remain protected by valid copyrights.” Id. at 50; see also Pannonia Farms, 2004 WL 1276842, at *9 (noting that although the characters of Sherlock Holmes and Dr. Watson were in the public domain based on fifty-plus public domain original stories, a new work that incorporated “character traits newly introduced” by the nine later original stories still under copyright would infringe those copyrights).

In other words, if material related to certain characters is in the public domain, but later works covered by copyright add new aspects to those characters, a work  -14-