Superman, Batman & Wonder Woman All Enter Public Domain Very Soon


A writer at IGN discussed what it’ll mean when classic creations like Superman, Batman and Wonder Woman enter public domain status in the coming decade:


With several of DC’s major copyrights set to lift in the ‘30s (Superman and Lois Lane in 2034, Batman in 2035, the Joker in 2036, and Wonder Woman in 2037), the Variety item imagines a future flooded with unauthorized comic books featuring these household names. A quoted comics expert predicts that “100 of them” will be “ready to go” as soon as the law allows, and the article carries that logic over to the silver screen, suggesting that studios may be eager to mint their own versions of characters as they’ve previously done for public domain characters like Robin Hood or Dracula. The mind pictures a dystopian marquee advertising a given weekend’s offerings as a choice between Warner’s Superman Rising, Universal’s Tale of the Superman, and Disney’s Superman and Friends.

The likelier outcome, as some legal scholars are countering, won’t be so dire for DC nor so flattening for the multiplex. The law will leave a handful of important guardrails in place to prevent a market clogged with indistinguishable duplicates of the same icons, the intended function being specifically to avoid consumer confusion among identical rip-offs. In the best-case scenario, in fact, these developments could usher in an era of legally mandated creative refreshment.

“That Superman is entering public domain doesn’t mean you can go and write your own Superman comic,” says Brian Frye, a professor at University of Kentucky’s Rosenberg College of Law. (He’s also the producer of the documentary Our Nixon, which flexed quite a few fair-use muscles in sampling footage of Tricky Dick.) “It means that you might be able to use the Superman character in your own story without infringing on anything that belongs to DC.”


Well I’m sure this whole affair obviously isn’t without legal difficulties, but if they’re saying competition is bad, were a whole shipload of different Superman stories to be published by authors under public domain, that’s absurd, and doesn’t bring story merit into consideration. There’s only so many corporate-owned creations that were ruined even before the turn of the century, and that’s not concerning?


In theory, copyright law serves a just and useful purpose, ensuring that the labor of artists can’t be sold by some other entity as their own. For the duration of the author’s life and then another 70 years (or, for corporate works, 95 years after publication), they own the rights to their work; to cite perhaps the most well-known example, this is why DC can’t get in the Spider-Man business. A significant difference separates Amazing Fantasy #15 itself from the character of Spidey as he’s known and loved, however.


Considering DC’s editorial and writing staff are as bad as Marvel’s now, and possibly worse, it wouldn’t be good news if they got into the Spidey-writing business at all. For all we know, they’d likely even subject Mary Jane Watson to as horrific a storyline as Jean Loring and Sue Dibny went through in Identity Crisis two decades ago. So what’s their point? Unless DC and Marvel as comic publishers are both sold off to a better owner, there’s no use sampling anything new they turn out.


Because this is a cumulative process that happens over time, these copyrights expire piecemeal. Superman as a concept becomes available long before his weakness to kryptonite or ability to fly, Wonder Woman will be fair game one year prior to her Lasso of Truth, etc. So with each intellectual property dealt with on a case-by-case basis and strewn with grey areas, the question becomes, rather, what is allowed? And in terms of studio protocol, what’s likely to actually happen?

Any answer hinges in large part on the difference between a copyright (which protects a creative work) and a trademark (which protects phrases or iconography that makes up a business’ brand). A trademark has no expiration date, in essence meant to preclude companies from passing off their products as another’s. “It’s one thing to use a character in a copyrighted way, for example, Mickey Mouse or Superman or Wonder Woman in another story,” says Frye. “It’s another thing entirely to use these characters in a way that communicates something to consumers about the source of what’s being produced. The closer you get to making consumers think that the source of whatever you’re producing is Disney or DC, the more likely it is you’re moving into trademark rather than copyright territory.”

For a studio hoping to make the next big blockbuster, this poses an obstacle: Anyone attempting to capitalize on the familiarity of Superman would have to sand off a lot of what makes him familiar. The law encourages use of an idea’s broadest contours, its general outline more than the particulars contained within. This can start to create wiggle room for characters identified less by their biography than their image. Dracula, for one, is understood as a vampire of exceptional power; everything beyond that is up to filmmakers, who have translated the character across genressettings, and even racial lines.


Ah, and here’s where they make this quite superficial, all without serious questions as to whether merit is the name of the game, and without clearly noting this is what brought down DC/Marvel since the mid-2000s, because they too went miles out of their way to “translate” a number of their superheroes into different races and according to LGBT ideology, all for the sake of “diversity-pandering”, and an audience that wasn’t there, and they acted like nobody cares about merit. In the past, that’s a big problem that ultimately brought down minor superhero creations, because DC/Marvel wouldn’t sell them on merit, only on image recognition. In addition, there’s the problem of selling almost everything as an ongoing series almost instantly out of the gate, without any kind of test run with a miniseries. I’m sure the Big Two know that’s not a winning formula, but due to their left-wing politics, it makes no difference.


By the end of this century, though, pretty much everything created in the 20th century will be public domain, and for all we know, even trademarks on DC/Marvel products will no longer be in use. And who knows, maybe even well before the 22nd century comes about, the copyrights will have expired. So then, the question is whether there’ll come a future generation that’ll do for classic creations what this century’s writers, artists and editors have disappointed on. Let’s hope somebody with common sense will be around then to put all these aforementioned characters to better use.


Originally published here.

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Avi Green

Avi Green was born in Pennsylvania in 1974, and moved to Israel in 1983. He enjoyed reading comics when he was young, the first being Fantastic Four. He maintains a strong belief in the public's right to knowledge and accuracy of facts. He considers himself a conservative-style version of Clark Kent. Follow him on his blog at Four Color Media Monitor or on Twitter at @avigreen1