Why everyone’s afraid to write about Zorro

Back in the hazy days of my youth, two TV shows dominated my afterschool viewing. And both starred that wily fox of old California, Zorro.

Disney’s late 1950s “Zorro” and The Family Channel’s reboot, “The New Zorro,” were in constant rotation on basic cable channels back in the 1990s, and I watched the hell out of them. Both had swashbuckling, Shakespeare-worthy swordplay, a thick veneer of social justice, and insanely catchy theme songs.

I also watched the Zorro movies. I might or might not have owned a Zorro hat. I figured I was an unshakable Zorro fan. Then I read the book that started it all, The Curse of Capistrano.

The 1919 novel by Johnston McCulley is a collection of serial stories about the American Robin Hood archetype originally published in the pulp magazine All-Story Weekly. It’s the wellspring of all things Zorro.

The Curse of Capistrano is … not good.

Just look at McCulley’s ham-fisted introduction of Zorro, who just sorta casually strolls into a tavern on a rainy night to confront a villainous soldier and forgoes fencing to engage in a long-winded exchange of threats that runs into the next chapter.

“‘I am the friend of the oppressed, señor, and have come to punish you.”

‘Come to-to punish me, fool? You punish me? I shall die of laughter before I can run you through! You are as good as dead, Señor Zorro! His excellency has offered a pretty price for your carcass! If you are a religious man, say your prayers! I would not have it said that I slew a man without giving him time to repent his crimes. I give you the space of a hundred heartbeats.’

‘You are generous, señor, but there is no need for me to say my prayers.’

‘Then I must do my duty.’”

It just goes on like this: rambling, halfhearted verbal intimidation in lieu of action.

The rest of the book is no better. The characters are two-dimensional, the swashbuckling is confusing at best, and Zorro has a terrible habit of dramatically escaping a conflict, only to waltz back into the scene a couple pages later like nothing happened. The text is littered with exclamation marks! And McCulley’s favorite dialogue marker is “howled.”

It was enough to make a Zorro fan say, “I can do better.”

Recently, in the depths of one of my periodic “Is fan fiction a force for good or evil?” ponderings, I got the idea that I should write my own Zorro novel. I would fix the flaws in McCulley’s amateurish tale and create a new story that would show Zorro as I had seen him growing up. It would be something in the vein of revisionist literature like Wide Sargasso Sea, not the obscene thievery of Fifty Shades of Gray and the like.

The Curse of Capistrano had to be in the public domain by now, I figured. It just turned 100 years old, after all. And back in 2005, Isabel Allende took a shot at what I was hoping to create with her novel,

Over at Nova Southeastern University, Stephen Carlisle nicely summarized the current copyright status of The Curse of Capistrano and McCulley’s follow-up, The Further Adventures of Zorro:

“The character of Zorro first appeared in the serialized story “The Curse of Capistrano” by Johnston McCulley in 1919. A movie adaptation “The Mark of Zorro” starring Douglas Fairbanks followed in 1920, and a second serialized story by McCulley, “The Further Adventures of Zorro,” was published in 1922. Since all were published in the United States prior to 1923, all are in the public domain.”

In addition to dozens of Zorro stories published by authors other than McCulley and the TV shows, there’ve been 38 Zorro movies, from parodies to straight-up action films, with the most recent coming out the same year as Allende’s novel.

I was in the clear. I was ready to go!

But then, paranoia set in and I did some extra digging. It turns out, Zorro’s copyright status is a mess.

Though the original Zorro stories, The Curse of Capistrano and The Further Adventures of Zorro (which established the characters, setting, and theme of the Zorro universe) are in the public domain, along the Douglass Fairbanks movie The Mark of Zorro (which established the iconic look of Zorro with his black half-mask, wide-brimmed hat and sweeping cape, as well as the comic-adventure tone of the story), “Zorro” as a creative product is somehow still under copyright.

The Hollywood Reporter has a detailed break-down of the issue, but the tl;dr is somewhat akin to what happened with the song “ Happy Birthday.”

In 1949, McCulley assigned the rights to Zorro to a literary agent named Mitchell Gertz. Gertz set up a company to manage the rights and called it Zorro Productions, Inc. The company is still around, now run by Mitchell Gertz’s son, John Gertz. Allende had to go through Zorro Productions, Inc. in order to write about Zorro, as did Sony Pictures for its 2005 film The Legend of Zorro. Zorro Productions, Inc. is known to be diligent in pursuing trademark and copyright violators. It even went after the candy company Mars, Incorporated in 2010 over an M&M cartoon character dressed to look like Zorro in a commercial.

But recent developments in an extended case involving a musical about Zorro have started to turn the tide against Zorro Productions, Inc. In 1996, a playwright named Robert Cabell wrote Z — The Musical of Zorro based on The Curse of Capistrano. He initially turned to Zorro Productions, Inc. for approval of his use of the Zorro property. However, the following year, Cabell realized that The Curse of Capistrano was in the public domain and withdrew his request.

“According to Cabell, Gertz interfered with various productions of his musical around the world including an early 2000s Broadway production that never materialized due to threats,” writes Eriq Gardner in The Hollywood Reporter. “Besides copyrights, Gertz also used trademarks to assert authority. That led Cabell to petition for cancellation of registered trademarks.”

In 2015, the European Union declared the Zorro trademark invalid.

And in 2018, Zorro Productions, Inc. found itself facing a countercharge of copyright infringement. Back in the 1990s, Cabell had provided the company with a copy of Z — The Musical of Zorro. In 2005, the company authorized the production of another Zorro musical in London. Cabell alleged that this constituted an infringement on his own copyrighted material.

“Eventually, this would lead to a lawsuit from Cabell challenging ZPI’s authority over Zorro. Cabell not only looked for a declaration that his own musical didn’t infringe any copyrights and that ZPI’s trademarks were registered fraudulently, he contended that ZPI used material from his script in both Allende’s book and the follow-up musical,” explains Gardner.

But even in the face of these challenges, Zorro Productions, Inc. remains litigious, stating on its website that in spite of the recent rulings, “The unauthorized, unlicensed use of the name, character and/or likeness of ‘Zorro’ is an infringement and a violation of state and federal laws. ZPI, at all times, reserves its rights to take any and all legal action necessary to protect its trademarks and copyrights against infringement.”

So, that’s why there will be no Zorro novel from me until the legal issues are untangled.

This is why I avoid fan fiction and just write my own damned stories.

Originally published at http://the-delve.com on June 29, 2019.

Novelist, journalist, coffee addictist. Books at amazon.com/author/katherineluck