To Enter the Public Domain!
Hey friends!
I touched on this last week with public domain day (the first of the year) and obviously I've talked at length about copyright here in the past, but I wanted to expand on things a bit in light of a recent conversation on Bluesky.
Kara Huset, a super talented artist you might recognize from her original work or from a couple of Godzilla gigs, mentioned something about the original Blue Beetles and Captain Marvel being public domain. Which if I was a fact rating website, I'd call "kind of true." So, today, we're going to talk about why it's kind of true, why certain things are definitively in the public domain and some are way less clear, why Superman entering the PD in a decade is both exciting and daunting, and why sometimes the PD isn't as exciting as it could be.
So, Are Those Guys Public Domain?
For the sake of all arguments... no. Not really. There's a slightly more complicated answer, particularly for the original Blue Beetle, but the simple and short one is, no.
Let's very briefly talk about public domain in light of copyright law in the US. There are 3 major years/events to focus on for modern copyright law. First, the Copyright Act of 1976 was the first big change to modern copyright. This was a major codification and extension of US copyright law. It covered everything from new technology like television and comics (both of which were new relative to the last major update) to defining fair use to extending the terms of copyright to adding termination rights for work that's licensed after a certain period of time. It's extensive and still the backbone of how we understand copyright now, especially in terms of defining work for hire and rights held by corporate entities as opposed to those held by individual authors.
But one really key thing here is it removed one of the big old hurdles of U.S. copyright, initial registration and renewals. As has been said before, if you want to make sure you're really protected, you should still register your copyrights so there's a clearer track record if you ever have to go to court. One of the benefits is it gives a very clear date of when something was published in a copyrightable fashion and can be referred back to easily, which matters when we are talking about rights going public and other possible expirations. But as part of that, many works were also caught in an interesting place.
All works prior to 1977 that were published in the US without a copyright notice entered the public domain. Keep that in mind because it's the crux of the coming argument.
The law was updated in 1998 with the Copyright Term Extension Act which, like the name says, lengthened the terms of copyright in the US. And, for 20 years, pretty much killed the public domain! Literally, it just extended copyright 20 more years, so stuff that was supposed to go public 20 years earlier suddenly couldn't anymore. We were actually supposed to get Steamboat Willie in 2004! This also added another complication to copyright terms. As of 1998, to my understanding, what's in the PD today is everything prior to 1929 (meaning, stuff from 1928 and earlier, but not including 1929), anything from 1929-1977 that was published without notice or was only published with initial notice and not renewed after 28 years, and anything from 1978-1989 that was published without notice or registration within the first 5 years from publication. Which is both a lot and not all that much at all, especially when you consider that in another world where things weren't delayed 20 years, we'd be up to everything prior to 1949 now.
The last important year, of course, is 2019 which was the first year after the 1998 extension in which things started to be public domain again. That's less important to this specific thing, but I wanted to call it out.
Okay, with that all in mind, let's circle back to the "works prior to 1977 published without notice" thing. Many older comics, particularly from the smaller publishers, were published without copyright notice because that wasn't codified the same prior to 1976 and--equally importantly--a lot of those smaller publishers were already gone by 1976. For some of those books, even if could've filed and protected things, those companies had folded and were gone and there was no one to make sure things were properly protected. And the argument contends that this includes some of the old Fawcett and Charlton comics stuff. So, if Captain Marvel Adventures was published from 1941-1953 and wasn't properly filed, fair game (fair use), right?
Let's break this into these specific characters, because this is what makes it so complicated.
Captain Marvel in Brief(s)
Captain Marvel AKA Shazam was a Fawcett Comics creation. Again, assuming that you've got the proper archival material of the old comics to prove that they're public domain on the basis of a lack of notice that can be cross referenced with a lack of notice at the copyright office, sure, theoretically public domain!
EXCEPT, unfortunately for the Big Red Cheese, he's already been the subject of so much trademark and copyright dispute! The very short version of the story is: after Superman debuted, there were a crop of rip-off comics. DC sued one of these rip-offs (Fox's Wonderman, all one word)... and won. The character was in violation of copyright! Bolstered by this win, they did it again, to another Superman copycat... Captain Marvel! Both the Wonderman and appeal of the Captain Marvel cases fell into careful Hands... cousins Judge Augustus Noble Hand and (the even better named and more quoted) Judge Learned Hand. And both cases, at one point, found that the rip-off was indeed, legally, that. But Fawcett had an extra trick up their sleeve--they argued that Superman had been abandoned and was basically public domain anyway because, you guessed it, there was a problem with Superman newspaper strips having been published without copyright notice.
The case was argued into 1951 with various findings of "yeah, Captain Marvel is a rip-off" and "No, of course Superman's copyright hadn't been abandoned" and "yeah, we'll settle out of court because uhh... it's the early 1950s and superheroes are on the outs." Part of the settlement is Fawcett still owns Captain Marvel, but they can't publish the comics anymore which, again, they're kinda fine with because they thought the superhero bubble had burst. Like 20 years later, DC takes a wild left turn and licenses Captain Marvel from Fawcett, so they're publishing the CM comics (and in the 1990s, they outright buy CM and all related characters because at this point, DC's been publishing him longer than Fawcett ever did). But between those two points, Marvel Comics starts publishing their own Captain Marvel book and Captain Marvel character(s) and trademarks the name, Captain Marvel. Which is why DC's Captain Marvel no longer uses that name (though he did for a long time, even if his series did not).
But the long and short of it is, if any of that stuff's public domain, it comes from somewhere in that would-be notice/renewal cycle, something not getting filed properly. I don't have direct evidence that that's the case, but assuming it is correct, you'd likely have to face DC's lawyers to try to reprint any of it and knowing how these things go, they'd likely argue something to the effect of "we own these stories because we acquired them in our purchase of Captain Marvel/Shazam and related characters and the names and looks and whatever other elements of the Fawcett comics that we maintain are covered by our copyright and trademarks of these characters/stories/logos/etc" and "if we don't own these stories, in all prior instances, they've been found to be in violation of our copyright on Superman, so we'll sue ya with that existing standing."
There's no winning with that.
My Favorite Guy and Also Alan Moore
If you didn't know, the second Blue Beetle, Ted Kord, is my favorite superhero. There are other heroes I love a whole lot--G'nort, the entire cast of the David/Nauck run of Young Justice, Spider-Man, etc--but Ted's my #1 guy. I also fully don't think he's in the public domain. So, same argument as earlier, if any of his stories are, that's a result of a lack of filing or misfiling or whatever, right? It also, kinda, has to do with Charlton Comics, where he's from.
So, in the 1960s, some guy named Steve Ditko is doing a lot of work at Charlton and he and a few other creators have got this group of action heroes that you might've heard of. Most of them are just regular folks with talents and brains and brawn and then one real superpowered freak. The likes of Blue Beetle, Captain Atom, the Question, Nightshade, Peacemaker, Peter Cannon... Thunderbolt, Judomaster, etc. As time marches on and, once again, comics are dying and the industry has burst and nobody likes superheroes anymore (haha, it happens so very much) and in 1983, as a gift for former Charlton editor Dick Giordano, Paul Levitz has DC buy the Action Heroes characters for $5K a pop.
This is the first argument for why Blue Beetle isn't public domain--the assumption of that sale is that these characters have applicable copyright that can have the ownership transferred. The second relies on another famous work of DC's that's at the center of copyright disputes, Watchmen! For as much as all of these characters have changed over the years, if there was any question at the time as to the legal status of the Charlton characters and the specifics of their copyrightable story details and trademarkable looks and titles and stuff, there wouldn't have been a reason not to let them just be the stars of Watchmen. If there was any indication they were or could be public domain anyway, why not let 'em? But they weren't and aren't (even if the technical letter of the law might disagree) and so to keep those characters true to themselves and to allow Moore and Gibbons to tell their story, they just made a bunch of knock-off Charlton characters that could no longer be sued over because DC had bought those rights.
The reason I think there's a lot of confusion over this is that there are a lot of Charlton characters that did end up in a weird limbo. Basically, as much as possible, when Charlton saw the writing on the wall, they tried to sell things off. Some, like the Action Heros, went to competitors. A lot went back to original creators when possible. But some things just didn't sell for one reason or another and if they were created within those weird public domain windows, are public domain. But a lot of the big guys and big stories are not that, or even if they may technically be, folks have decided not to risk the potential of a suit over.
"Big Blue"
The first Blue Beetle actually has been featured as a public domain character!!! Kinda!!! Sorta!! Ehnnn!
Okay, so a few years back, Dynamite and Alex Ross did this big thing called Project Superpowers that was a team-up book of all the superheroes that had accidentally fallen in the public domain over the laws we've already talked about. There are a ton of them! Black Terror! The original Daredevil (renamed there to the Death Defying 'Devil)! Miss Masque (renamed Masquerade)! Etc. And one of those heroes is Big Blue, AKA the original Blue Beetle!
Now, his story's a bit more of a mess. He passed through a number of hands: Created at Fox, published at Holyoke for part of the original run, sold to Charlton (but there's debate on if a sale actually happened or if Charlton just kinda... took him), ultimately landing at DC kind of more-or-less as a related character to his own derivative character, Ted Kord Blue Beetle, who had definitely been sold to DC. But the general understanding is that this Blue Beetle, Dan Garret (1 T, that's hugely important, Dan Garrett is distinctly the DC version), is in the public domain. That's why he shows up in Project Superpowers. But, because DC's got their claim pretty solid with the other Blue Beetles, for trademark purposes, you can't just call him that if there's any way he could be confused for the DC version.
I've never read Project Superpowers. I actually don't know how involved he is as a character. But if you want to use him, he's probably the most viable of the three, just as long as you're doing your diligence not to impede on anything that is strictly DC's.
Why Superman Entering the Public Domain Matters More, Maybe
Superman's one of the next big public domain milestones. Debuting in 1938, we're still 10 years out from him (which, as we've learned, means if there hadn't been the '98 extension, we'd already be well familiar with PD Superman). There are plenty of notable works entering inbetween then and now: The Shadow's early stories; Flash Gordon's early strips; The Phantom's early strips; the first Disney feature, Snow White and the Seven Dwarves, the early Popeye-era of Thimble Theatre, the Nancy-years of Fritzi Ritz, etc, but for comics in particular, Superman towers over them all.
The reason Superman looms so large over comics should be obvious, he's Superman! He's universally recognized and liked in a way that few comics characters are. It's cool that we're living in a world where there have been multiple theatrical Shazam films and a Blue Beetle movie, but public consciousness of these characters is still far narrower than it is for Superman. In so many people's minds, Superman is The Superhero and everyone else in some ways stands as derivative of him. It's exciting having this major icon getting close to the public domain window for what you can do with the idea of the character generally, for the reprinting of those old stories, and for the act of him going PD as a signifier that the floodgates are about to open.
Within 5 years of Superman entering the PD (so 15 years from now), we'll also have Batman and Robin, Wonder Woman, the original Flash, the original Green Lantern, Jimmy Olsen, Lex Luthor, The Joker, The Cat, the original Justice Society, Captain America, The Sub-Mariner, the original Human Torch, Bucky, Red Skull, and a ton of other folks and early stories (including, definitively, the early Captain Marvels and Dan Garret Blue Beetles). That's a pretty major chunk of comics pop culture all dropping in quick succession.
Simultaneously...we've got a decade to sort of see how things shake out with the entrance of still active licenses into the public domain. Part of what's so complicated about the works of the public domain is that the case has been successfully made that works enter on the basis of their publication, not as a collective. It's why though Winnie-the-Pooh went PD last year, Tigger only joined this year and people've been really stressing that it's only 3 Mickey shorts that're PD this year. For the most part, the companies and individuals that control these properties nowadays have not been terribly friendly towards their works entering the public domain. If you look at, say, Sherlock Holmes (a character that's benefitted from being treated as public domain well before he actually was because it got people to read the old Doyle stories), you'll see a legacy of fighting for control of every last piece of Holmes media--like the short lived suit against Netflix for Enola Holmes featuring a "warmer, caring" Sherlock.
In my big copyright explainer from last year, I talked a bit about the differences between copyright and trademark. As a very quick refresher, copyright applies as proof of ownership of specific works of art as published--Action Comics #1's story and art is copyrighted. All Superman stories are copyrighted. And the characters within are copyrighted. Eventually, the copyright will expire (95 years in corporate ownership). Trademark applies to the distinctions and recognizability of brands. When Superman's copyright expires, he'll enter the public domain. However, the Superman logo, the S Shield, and other visual elements of what Superman is will still be under trademark because trademark doesn't expire after a set period, trademark expires after a period of disuse and non-registration.
Basically, it isn't super clear at this exact moment what all will actually be usable when these things enter the PD. What should be happening is that it should be really good for archival work. Anyone should be able to copy the original work and--transformation and modification aside--have the ability to share, reproduce, and distribute it, basically making it far more available and hopefully adding to the everlasting preservation of the work. You also should be able to transform, modify, and do all the other things to the work, including creating new derivative works, but that's where the treasure trove of material still under copyright and trademark might make things difficult.
By the same token, there's a lot of stuff that you can already do under fair use and I think it's worth it to ask to what extent is what you want to do not already covered? If you have ideas for earnest stories that'd compete with DC, yeah, you're not going to have a lot of leeway until we've got a clearer idea of what the landscape looks like. But if you want to do something to stick it to the man--Superman erotic material or over-the-top drugs and ultraviolence or recreating and recontextualizing Superman material in a new way as political art--you're probably fine already. Heck, if you just give the earnest stories a new name and look, DC doesn't really sue people over infringement on Superman's character anymore (plus, as I've mentioned before, comics has long had some additional flexibility for fan art).
In the meantime, if you're feeling interested and want to dig into it, there are tons of comics that have far more clearly fallen into the public domain already that you could mine for revival characters or, like some folks do, cool archival projects reprinting old comics for new audiences.
Next week, I think I'll be able to talk about my new job!
What I enjoyed this week:
Nancy (Comic), Yu-Gi-Oh: Duel Links (Video Game), Baldur's Gate III (Video Game), Blank Check (Podcast), How to Read Nancy (Book), Ted Lasso (TV show), Blade Runner (Movie), The Rehersal (TV show), the pilot of The Sopranos (TV show), my new big Taschen Ads of the 80s book, actually having some fun in my last week of not working, talking to a friend about putting together some original projects soon, prepping for Becca's next show. What I didn't enjoy this week was my phone dying! That's been real fun.
New Releases this week (1/10/2024):
None
New Releases next week (1/17/2024):
Sonic the Hedgehog: Fang the Hunter #1 (Editor)
Announcements:
Becca's first show of the year is today, 1/13, at Alesmith! It's a mini-con with BizBaz! They've got lots of cool deals and new stuff for the new year, including a new version of our Anti AI zine, so come out and see them if you're anywhere near San Diego today! If you can't make it, you can always find their webshop and portfolio here!
The Cartoonist Cooperative is still doing E-Sim cards for Gaza. You can donate a digital sim card so that residents can get access to the internet and have more functional phones and, in exchange, get some comics or a drawing or whatever else is available from the many participating artists. It's a nice little thing for you if you want it, but ultimately, man, giving an E-Sim could literally save a life.
You can also give more directly with your money or your time. You can call or fax or email or show up at the offices (or yell at the White House of) of your representatives to demand a ceasefire or to protest their inaction so far or to throw eggs at the president for participating in and encouraging a genocide. You should keep aware of actions, demonstrations, protests, movements, and celebrations in your community too. Given the nature of the things, they often come together fairly quickly, so do exercise your due diligence. Also, of course, being informed and just giving your time to Palestinian journalists and writers is incredibly valuable. I don't tend to be a big TikTok fan, but it has proven to be one of the most reliable resources for firsthand accounts of what's happening on the ground from folks who can get access to E-Sims.
Finally, check out my Patreon where you can access this blog as well as a ton of cool other stuff and this year, it'll be one of the first places you can see some of my new comics work, as well as my webstore (final stock on basically everything there except Jimmy Squarefoot), my Kofi (I'll get the updated Anti-AI Zine up there soon), and my eBay account as I am between paychecks for a while and those are other ways you can support me!
Pic of the Week:
My phone died and in it's last days, I did try to reset it with a factory reset. Prior to that, I thought all my data had properly synced, but apparently my photos didn't, so I lost a ton of them--anything I didn't have uploaded elsewhere already, and I haven't been taking new pictures. So, uhh... here's the front of our holiday card from last year. It's Garfield!
