Recently, I’ve spent time on Netflix catching up on nearly all the TV series based on various Marvel and DC Comics properties. By and large, in their own context, these shows are very good; and in some regards, they’re exceptional. Certainly, the overall quality of these programs is consistent with the general renaissance of the small screen that has taken place over the last decade or so, but I was paying attention to these derivative comic-book series in particular because the characters that belong to Marvel and DC are often cited as the type of intellectual property that should have long since devolved to the public domain. The feeling among some of those who advance this view is that these classic characters and story elements are so ingrained in our cultural consciousness that they have attained a status akin to oral tradition or mythology and, as such, now belong to the commons.
In part, I suspect this sense of collective ownership is inherent to being an ardent fan of anything that has attained institutional status. Much like the armchair quarterback “knows best” which play to call on Monday night, the serious comics fan can feel rather personal about narrative choices made with “his” characters. This is interesting in itself because it’s a sentiment that doesn’t really seek collective, or public, ownership so much as it implies an individual, I know better relationship to the works. And these strongly held feelings may serve to aggravate the complaint that, most especially, corporate conglomerates should not be the owners of these properties. Interestingly enough, though, while anyone may quarrel with a narrative choice made by any author(s), the overall craftsmanship of the TV series in question may not exist absent major media corporation ownership of these comic-book properties.
Watching several of these shows all at once inspires a variation on a thematic question I’ve asked many times about the idealism of the public domain, which is this: These properties should be in the public domain so that “the public” may do what with them? If ten years ago, Hulk, Captain America, Batman, Flash, et al had entered the public domain, what would the public get, either culturally or economically out of the transaction? Because one thing it would not get are high-production-value TV shows like Gotham or Agents of Shield. These programs are simply too expensive to be produced by any entity other than a fairly large organization that would never invest absent the underlying intellectual property rights. And as I’ve pointed out in this post, even if one hates these shows, the larger economic benefits of major TV productions should not be dismissed.
Certainly, if Marvel and DC properties were in the public domain, then individual authors or comics artists could publish their own variations, and indie filmmakers could perhaps make works on a scale much smaller than even a single episode of a show like Gotham. But it seems to me we could also dilute both the commercial and cultural value of these properties rather quickly. While these characters have been “rebooted” many times, I believe that part of what makes the reboot work (i.e. the ability to recycle characters without depleting their value) is centralized creative control over the universe of interrelated characters and plot lines for a period of time.
In this regard, fans of the Avengers films can follow the exploits of the Agents of Shield, which is set in a period shortly after the events depicted in the last Avengers feature film The Age of Ultron. Presumably, if any of the main characters from Agents appear in the next Avengers film, the stories will align, and this is only possible with centralized control over the Marvel universe. Plus, it seems to me that this is entirely consistent with the tradition of comics, whereby the fan can follow a variety of intersecting stories for a period time to some conclusion, leaving the stage bare for the next reboot.
One can argue that this doesn’t matter, that it would be better to have dozens of authors “free” to digitally publish a wider range of narratives derived from these properties, but I believe that’s a very hard case to make based on market realities and the way we relate (or not) to these types of characters and stories. For instance, how many consumers of the Marvel films and TV shows are serious “fans” rather than semi-ambivalent viewers like me? I’ll go to these movies or watch these shows and enjoy them for what they are, but I’m not so devoted to, say, the Hulk that I’m going to seek out every variation on this character that I can find. And even among such enthusiasts, I doubt many would actually want 20 different storylines running concurrently—that it is more likely these Hulk fans would be drawn to one or two of their favorite derivative works in this regard. After all, having multiple, simultaneous storylines sort of betrays the serial nature that drew readers to comics in the first place. Conversely, I do recognize that much of the criticism regarding corporate ownership of these comics properties comes from fan fiction writers and supporters of fan fiction; and this market is not to be dismissed, but neither should it be presumed to replace or supersede the mechanisms that produce highly marketable, job-supporting enterprises like TV shows. Meanwhile, I will not be surprised if many conflicts viewed by fanfic creators can be resolved in creative ways that balance all interests.
So, in such a free-for-all market, either Hulk fans diffuse and head off in various directions, which interestingly enough, can betray the original argument that the character is part of a “common modern mythology,” or Hulk fans coalesce around a new derivative they like best, thus giving that derivative work a singular market value. At this point, the creators of said derivative start talking about movies and TV shows and other ways to commercialize this derivative, which brings us right back to the need for intellectual property as the foundation for these substantial investments.
As I’ve said, had the Marvel and DC characters entered the public domain ten years ago, these TV series we have now, would not exist; and this has both economic and cultural implications. The show Gotham, created by Bruno Heller, tells a narrative of the city beginning in the immediate aftermath of the murder of Bruce Wayne’s parents. Hence, the show mines imaginative possibilities that are ideally suited to the tradition of the “spin-off” by asking the question, What happens during all those years while Bruce Wayne is still a kid? While it’s true that, if Batman were in the public domain or copyright didn’t protect derivative works, many writers out there, including potentially very talented ones, may ask the same question and write their own versions. But why is this culturally or economically desirable?
As a consumer, I have time in my life for, at most, one show like Gotham at a time—one version of The Penguin’s backstory, one version of what 12-year-old Bruce Wayne is up to, one version of Jim Gordon’s crusade to clean up his city. And I suspect the majority of consumers feel about the same and have no more time than I to indulge in more than the version of the moment. Of course, if Gotham were not engaging on several levels, then I would have time for zero shows exploring these narratives; and in this regard, the production design of this show alone represents the kind of work that can only begin with a foundation of serious investment in the underlying property.
Unlike shows like The Flash or Arrow, which are set in fictitious but contemporary cities, production design for Gotham poses a whole set of challenges regarding time and place that I think have been very smartly addressed by designer Doug Kraner and director Danny Cannon. The premise of the show is of course a prequel, exploring a narrative before the history we already know; but what this particular past looks and feels like is conveyed through a variety of carefully chosen and maintained design, prop, and textural details. The City of Gotham is meant to evoke New York but not be New York. Hence, the overall look is achieved with a cross-section of non-concurrent, American design and prop elements. We see interiors and furnishings from 1930s to contemporary; vehicles from the late 1970s to early 80s; VCRs and tube televisions from the mid 1980s; and cellphones from the pre smartphone era that are definitely not contemporaries of the vehicles. These choices help to set the City of Gotham in a past that is somewhat familiar but also distinct from any particular past as we know it. As Kraner explains in this article for The Guardian, time as conveyed through design becomes a strong narrative element throughout the series. He describes the police station Bullpen as “…a dark, chaotic, corrupt old world that is very hard for him [Jim Gordon] to fight. It’s established. It’s been there forever. How is this one man going to change it all?”
New York City exteriors are carefully composed and digitally altered to sublimate one of the most recognizable places in the world into a city that isn’t quite recognizable, even to many New Yorkers. Initially designing and then maintaining this illusion of the City of Gotham, making the city itself a character, is just one component of this show that represents more work than anyone would ever fund absent the rights to the underlying material. All in, Gotham is a damn good show that fulfills both the creative and economic rationales for retaining derivative works rights in copyright. And given the demand that today’s small-screen production values must be on par with feature films, the investment in this particular program is made that much more likely by Warner Brothers’ stewardship the DC Comics universe.
ADDENDUM: Thanks to comments from a regular reader, it seems I should clarify that I do not mean to suggest that great works are not made from sources in the public domain. Clearly, this is not the case. It is the nature of comics characters in particular that inspired this essay. As stated in a couple of places, it seems there is an advantage to having one narrative at a time as exemplified in a spin-off work like Agents of Shield, which fills in gaps between one feature film and another. These rationales certainly do not apply to all works.
