Monday, January 16, 2017

Cisco Kid is PD: But What About Pancho?

Dear Rich: O Henry published a short story in his Western series in 1907 called "The Caballeros Way" The main character was an outlaw called the Cisco Kid. Since 1914, many movies and a TV series about the Cisco Kid were produced. I would like to write a script, completely original, with the Cisco Kid as a character. Can I legally use the name, Cisco Kid, as a character in my script? Is his name and character in the public domain since the story was published in 1907?
You can definitely use the Cisco Kid in your work. O Henry's story (in which Cisco first appeared as a ruthless American outlaw), was published in the U.S. prior to 1923 placing it within the public domain. There are also no character trademark registrations for the Cisco Kid, though the name has been the subject of registrations for candy, fishing lures, and tequila. If you plan to include the Kid's sidekick, Pancho, in your script, beware that his copyright status is not as clear. Pancho did not appear in the O Henry story and was reportedly inspired by Don Quixote's sidekick, Pancho Sanza. His first appearance was in the 1945 film, The Cisco Kid Returns (not to be confused with the 1939 film, Return of the Cisco Kid) and assuming that film was timely renewed, the assignees of Monogram Pictures (Allied Artists International) may own copyright on that character. We say "may" because a number of Monogram films from 1936 to 1946 fell into the public domain. (In other words further copyright research is required.) Our analysis of Pancho is based on the case involving Sherlock Holmes in which it was determined that Sherlock was in the public domain but that the assignees of Arthur Conan Doyle's estate could claim copyright on the characters (for example, Watson's second wife) in stories published after 1922.
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