Who owns the rights to Tales from the Crypt?

After many years of legal back and forth there has been an update to the rights of the Tales From The Crypt Show and the Crypt Keeper character. Long story short is that they were held by Joel Silver's production company but have been given to the William Gaines (founder of EC Comics) estate. What they plan to do with it is unclear. I just released a discussion about this news on my podcast and am going to record a discussion with a few copyrights lawyers next week. What would you like to see be done with the Tales From The Crypt property?

Edit: I am loving all the answers. What I am seeing is people are talking about releasing or reviving the shows. Also, consider the other avenues. Right now there is zero Crypt Keeper merchandise. Imagine a Neca figure? Or the Crypt Keeper character popping up on Shudder for ads or other spots.

If you were born in the ‘70s, chances are you are familiar with the HBO series Tales from the Crypt and the Cryptkeeper, who rose from his coffin before each episode, cackling, and then setting the scene with ghoulish puns. Despite the success of the show in the ‘90s, those episodes have never made it to any streaming service (other than pirated on YouTube) and efforts to reboot the franchise have failed. Most notably, a reboot planned by M. Night Shyamalan and TNT announced in 2016 was dragged back into the grave and never saw the light of day. You might wonder what could dash the hopes and expectations of the shows loyal “boils and ghouls.” It turns out none other than the horror of intellectual property rights!

The History

 The Tales from the Crypt show was based on a comic book series from the 1950s of the same name, created by Bill Gaines. The primary host of those comic book stories was a character called The Crypt-Keeper, a sinister looking hermit with long white hair. The television show that aired in the early ‘90s drew many of its story lines from the comic books. It’s host, though a corpse, rather than a hermit, was also based on the character from the comic books. The television show was produced by a company formed by the show’s creators, called Tales from the Crypt Holdings.

When TNT abandoned its reboot in 2017, the president of the network, Kevin Reilly, said that they did so because, “That one got really caught up in a complete legal mess unfortunately with a very complicated underlying rights structure.”[1] It’s hard to know exactly what those rights issues might have been. TNT had reportedly not planned to have The Cryptkeeper as a host, so it had to be more than just rights in that character. There was a recent development that seemed like it could be significant for fans hoping to see a reboot. In November of 2021, the company holding Gaines’ rights resolved a 7-year long trademark dispute with Tales from the Crypt Holdings over the rights to the Cryptkeeper trademark, with the holding company abandoning its registration. While that seems like a major development, it’s not clear if it has any impact at all on a possible reboot and helps illustrate how complicated intellectual property rights can be, especially with older properties.

 This Tales from the Crypt property clearly started with Gaines and his comic books. Before there was ever a television show, there were comic books, there was a Crypt-Keeper character, and there was some content there. In the '80s, some or all of that content was licensed out to a group of people who formed Tales from the Crypt Holdings, and they made the television shows. Though we know Gaines held the rights in the original comic books, we don’t know what rights were licensed to the holding company and what rights they might have retained in any future exploitation of the shows or the franchise as a whole. Both trademark rights and copyrights are involved.

Trademarks

The dispute resolved in November related only to the trademark rights in the Crypt-Keeper brand. A trademark is a word, name, or symbol that identifies the source of a product or service. Most commonly that is something like the Apple logo on a computer or the Nike name on a shoe box. In this case, it is the use of the Crypt-Keeper name on books and entertainment. The holding company’s decision to abandon its registration essentially means that the rights to use the Crypt-Keeper name on books at least (and maybe entertainment) rests solely with the Gaines estate’s company.

First Use Wins Over Registration

 There are two important concepts to understand with respect to trademarks. The first is that rights arise from use, not registration. It doesn't matter who has the registration, so much as who used it in commerce, which means who sold books, who put on television shows, things like that. By publishing a series of comics using the name Tales from the Crypt, Gaines had trademark rights in that name. Registration is a formal process for recording those rights with the Trademark Office. If you don't have a registration, your rights are what we call common law rights. That's that little ™ symbol you see next to things. And that means you have rights in the places where you've used it. If you have only sold books in California and Nevada, your common law trademark rights only exist in those two states. Registration makes those rights nationwide and makes it easier to protect them. Registration is very valuable, but it doesn’t decide who owns the trademark. Ownership is based on first use.

 Lexis vs Lexus

 The second important concept to understand is that trademark rights are by category. Just because you have a registration for use of a brand on one thing, doesn't mean you own that brand for use on anything. For example, Lexis, the database company, sued Lexus, the car company, for infringement. The database company came first, they had a registration and when Lexus, the car company came out, the database company sued. The court decided that even though the marks are similar, databases and cars are not, and nobody is going to confuse them. For that reason, the mark was not infringing.

When the Gaines company applied to register the Crypt-Keeper trademark for books and comics, they were denied by the Trademark Office because there was an existing registration for the mark Cryptkeeper for entertainment held by the holding company. The Trademark Office concluded that the two trademarks were confusingly similar because oftentimes books are adapted into television shows. The Gaines company petitioned the Trademark Office to cancel the existing registration held by the holding company for filmed entertainment. After 7 years of fighting, the holding company gave up.

That seems momentous, right? The holding company gave up, they’re out. But it may not be quite as momentous as it seems, because all it means is the holding company is no longer using the Cryptkeeper trademark in commerce for filmed entertainment. If the trademark was the only issue here, that might clear the way for new content. But that’s only one small piece of the puzzle. It does not consider the other major IP here, which is copyrights.

Who Owns the Copyright?

 Copyright protects original works of authorship fixed in a tangible form. Written comic books, scripts, and filmed television shows are all protected by copyright. Copyrights are owned by the original author or by the company they work for. If someone uses or copies your original work without your permission, they are infringing your copyright. That also means that they can’t make derivative works based on your original work without your permission. Derivative works are things based on the original work, like a television show based on a comic book or a sequel to a movie.

Critically, in this instance, we don’t know what deals were worked out when the original television show was made. We don’t know what rights Gaines’ company granted to the holding company or whether any third parties may have rights claims. It also may depend somewhat on what elements of the original works any reboot would want to use. If they merely want to use the name and none of the characters or story elements from the original comic books, it is possible that the holding company’s abandonment of their trademark registration clears the path. But it is entirely possible that the holding company still controls rights in the storylines of the television episodes, the music and artwork used in those episodes, and in its depiction of the Cryptkeeper using the well-known corpse puppet. It is also possible that third parties may own rights to storylines, music, or artwork featured in those television episodes.

It is similarly difficult to determine who would have rights to re-distribute the original television episodes. The holding company might hold rights, since they created the works and registered copyrights in them. HBO distributed the television shows, so it’s possible they could own some interest. The Gaines company licensed the rights to the holding company to make the shows and we don’t know if they retained any rights to the content.

It might be possible to answer all these questions by looking back at deal documents. But this is a 30-year-old property. Those deals were made at a time when some lawyers were still using typewriters. Even if they were electronic, it’s not like there were cloud storage systems available. The signed agreements may well be buried in ancient file boxes, if they are even still accessible at all. That means it may not be possible to piece together who owns what rights, leaving open the question of who, if anyone, can authorize new content.

Back From the Dead?

 The ultimate question for fans who want to see this franchise revived is whether there is anyone willing to put up enough money to get to the bottom of these rights issues and resolve any claims. I do think that's possible, but obviously, it's not a simple affair, because if it was, it already would've happened. Rebooting Tales From the Crypt would require producers with a passion and a vision, producers willing to pay to resolve the rights issues as well as to produce the content, and a distributor willing to take a risk that there is enough of a fan base out there to justify giving it a shot. Even then, there’s no guaranty that they can get to the bottom of the rights quagmire that stopped TNT back in 2017. With enough money, situations like this can usually be worked out. If every conceivable rights claimant gets paid, then most of them don’t care who really owns rights. But, as popular as it was, it’s not clear that it’s worth taking a risk spending that much money to reboot this franchise, knowing that it could very well fail to meet fan expectations and be a flop. It may be that this property is destined to remain in the vault and the Cryptkeepers cackle will live on only in our memories – and a few pirated YouTube videos.

[1] https://gizmodo.com/tnt-has-killed-the-tales-from-the-crypt-reboot-1795741141

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