Comics Under Copyright

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.

© 2015, David Newhoff. All rights reserved.

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  • Why don’t fans invent their own characters and write whatever story they want? Why do they need to “own” characters and stories that were born in the mind of another?

  • I would happily claim the title of “copyright maximalist”. I am 100% pro- copyright. However I’m not sure the underlying premise of this article is sound. The good Mr. Newhoff says, “had the Marvel and DC characters entered the public domain ten years ago, these TV series we have now, would not exist..”

    Are you sure this is true? Sherlock Holmes is, so far as I can tell, in the public domain (although it seems there is still the occasional lawsuit and I think the estate of Mr. Doyle will happily sell you a license if you just want to be sure to not be hassled) but there are all sorts of Holmes TV, movies and the like licensed and not. Likewise, a lot of HP Lovecraft’s work is in the public domain and he and his creations seem more popular then ever. Then there’s Dracula, and King Arthur just to name two characters used all the time in various ways. And of course there’s Shakespeare, riffs on his work in various high quality formats are everywhere.

    Now, of course, I believe copyright is good for the creation the derivative works using these characters (i.e. the modern movie “Bram Stoker’s Dracula” is and should be copyrighted). And I’m not at all saying that the Marvel characters should not currently remain under copyright. I am merely pointing out that I’m not sure we can say that, had the comic characters entered the public domain, we would not be seeing quality derivative works. And I only point this out because, as I said, I am 100% pro-copyright and I want our side’s public arguments to be as strong as possible.

    • Some of the Holmes stories are in the public domain but Sherlock Holmes is a trademark of the Doyle estate in regards to feature films and television, so even if a writer can, as of 2014, write a Holmes story, he can’t license his story for film unless the filmmakers have clearance for use of the trademark from the Doyle estate.

      As far as what’s being created out of the public domain material, without being filtered by the estate, well… maybe someone wants to read ‘Sherlock Holmes and the Mutilated Cattle’ but I feel the story’s appeal is limited.

      • I’m not sure this is true. The most recent Sherlock movie that I can find is “Mr. Holmes” starring Ian Mckellan. It was made from a derivative novel which appears to be unlicensed. The estate sued. I can’t find a resolution to the case in my 2 minutes of googling (2 minutes of googling of course makes anyone an expert nowadays). Nevertheless, the movie studio claims they made the movie under the notion that it was with a public domain character I think that alone suggests that it is incorrect that only currently copyrighted characters can result in quality adaptions.
        But even if google has failed me and the poor detective remains under copyright I still think the rest of my post stands.

    • Only some of Doyle’s stories are still under copyright, and wiriters who use the characters have to confine themselves to the material that is public domain. But that’s irrelevant to the trademark, in this case the judge will decide whether ‘Mr. Holmes’ is a violation of the Doyle estate’s ‘Sherlock Holmes’ mark.

      I can’t speak for David but I’m not arguing that a quality work can’t be made from the public domain – T.H. White’s ‘The Once and Future King’ is a great book, and Disney made a fun movie out of part of it. But there’s nothing in the public domain that is nearly as popular as Disney’s Marvel franchise, Toy Story, or Star Wars. My takeaway from David’s essay was that PD works don’t draw the same level of investment in terms of capital or fan devotion, and I think that’s evident if you think in terms of dollar amounts and fanbase,.

      • Thanks to both sf46 and Jason for your comments. I wrote a short addendum that I hope is at least somewhat helpful, though I admit this essay could probably tighter. There’s no question that PD works are used to make films and TV shows all the time, but it is the nature of comics properties and these specific shows that got me thinking about the topic. Agents of Shield is the best example of holistic control over a universe of characters — Disney property, Disney movies, Disney TV network — and the show itself tees off the last Avengers feature, uses the same actor in the lead role, and even has a couple of scenes with Samuel Jackson as Nick Fury. The other shows don’t, at this point, hook into other properties like feature films in this way, but something like Gotham could plant the seeds for an interesting Batman reboot given the unique backstory they’re writing for young Bruce. My larger point boils down to what I said about the audience really only having bandwidth, patience, interest in probably one narrative at a time for these works, so control over the universes isn’t necessarily a bad thing. I don’t think about what small, independent producers might do with these universes if they were in the PD, but rather what these same, large players might do if they could compete with one another across the properties. So, I suppose that’s an argument for keeping the DC and Marvel universes intact regardless of who owns them.

        Holmes is mostly in the public domain but for a handful of stories, and Jason is right about the trademark on the name. Interestingly, in another relatively recent post, I referred to the excellent BBC Holmes series to make a point that nearly contradicts part of this post and makes your point, sf46. I argued that the investment in this series is so substantial that licensing is not a barrier, but I also implied that the shows are so good that they become naturally prohibitive to any producer making another Holmes series at this time. This market-based prohibition on competing, simultaneous works would suggest that whether source material is under copyright or in the public domain doesn’t matter so much as whoever produces the best derivative work at any given time. Perhaps there is something to this, though I would argue comics are different because of all the interrelated story possibilities or utter chaos that can be created from these universes of well-known characters.

        One way or another, I tend to think it is false to assume that characters whose histories are part of our collective consciousness will live their best lives, if you will, in the public domain. Deviate too far from certain elements, and some author’s “Holmes” is no longer Holmes, at which point the author might as well name his character something else and avoid any conflict. Part of the purpose of the IP, of course, is to keep authors from marketing under a name like Sherlock Holmes when what they’ve created might have nothing at all to do with Sherlock Holmes. Hence, the trademark makes sense and benefits the public in the same way trademarks benefit the public when buying other products. Let’s face it, a lot of the complaints about IP on these characters do come from individuals or business opportunists who want to hawk their wares using famous names, etc. because it’s easier to market that way.

      • Thanks, Mr. Newhoff. Point taken regarding the Marvel and DC character “universes”. It appears I have engaged in the common internet mistake of sticking one’s nose where it doesn’t belong. Although I semi-avidly read the funnybooks themselves I have never been able to get into the superhero genre in other formats. According to Wikipedia “The Dark Night” is considered one of the best movies of the 2000’s. I literally had to turn it off because I found it so uninteresting (and believe me, I can usually sit through even major-league crap!). I am therefore completely ignorant of the comic characters TV and Film universes so I applied your post to characters and situations that you didn’t intend.
        As an aside I mentioned HP Lovecraft in my original post. His mythos were sort of a proto-open source enterprise both because of the still unsettled copyright and trademark laws during his life and also because of his own encouragement of other to use and expand upon his ideas. In any case I have seen it touted as a model for a minimal copyright world. At the same time it is an article of faith among many Lovecraft fans that August Derleth and other later writers really loused up the whole mythos by completely misunderstanding and misapplying Lovecraft’s original ideas. Going to your point that sometimes an overarching guiding creative hand might not be such a bad idea.

      • No, thank you for the conversation. And your nose absolutely belongs. Essays like this one are offered as food for thought. And I have never been a major comics fan myself. My comments are meant to be taken in context, agnostic with regard to narratives or how much I do or don’t care about these characters personally. I try to judge things like this as good or poor quality “for what they are,” and not compare them to works I likely care about more deeply.

        While I’m certainly familiar with Lovecraft, I’m no expert in his body of work, so thanks for that note. It’s an interesting detail.

      • It’s interesting, i think RE Howard’s Cthulhu stories in particular were particularly wretched, he really coudln’t do the ‘cascade of abstractions’ thing, whereas IMO HP had the opposite problem. But I think people have done some interesting things with older characters, the book you mention looks good and it’s by a good writer. Neil Gaiman write a story that combined Holmes and Cthulhu, and succeeded in channelling Doyle prefectly, I thought.

      • Jason–
        “Only some of Doyle’s stories are still under copyright, and wiriters who use the characters have to confine themselves to the material that is public domain. But that’s irrelevant to the trademark, in this case the judge will decide whether ‘Mr. Holmes’ is a violation of the Doyle estate’s ‘Sherlock Holmes’ mark.”

        No, it’s very relevant. The leading cases here are Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), and Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111 (1938).

        Trademarks are only protectable to the extent that they indicate that all goods bearing the mark originate from a common source: LEVI’S brand blue jeans all originate from Levi Strauss & Co.; ELEVATOR brand vertical conveyance devices on the other hand can originate from any of a number of different manufacturers, such as Otis, Hitachi, ThyssenKrupp, and many others. This means that LEVI’S is a protectable trademark, but ELEVATOR is not, and indeed probably all elevator manufacturers use the word ‘elevator’ to describe their products. (n.b. that ELEVATOR used to be a trademark, but the public treated it as a generic term for all such devices, and therefore it became one and the trademark was lost)

        Titles of works and names/appearances of characters commonly suffer from being unable to function as trademarks because they commonly do not serve as source identifiers; instead they merely identify the work and the character without any association in the minds of the public as to a common origin for the goods in question. It’s not an insurmountable problem, but it is a significant one.

        So for example, the MARIO character might be viable as a trademark for Nintendo. But when Universal sued Nintendo claiming that the Donkey Kong video game infringed on Universal’s rights in the original printed King Kong story (from which the well-known 1930’s film was adapted), Universal lost. It turned out that first, the story was in the public domain, and second, there was no protectable KING KONG mark for many reasons, including that it did not indicate that all KING KONG marked goods shared a common origin. As there had been a number of different, unrelated parties using the King Kong character and name, Universal’s alleged mark couldn’t be distinguished from the others; one giant, skycraper-climbing gorilla isn’t really that distinct from another in the minds of the gorilla-marked goods consuming public.

        This doesn’t mean that a character whose originating works are in the copyright public domain is also in the trademark public domain. The PETER PAN mark has been used for peanut butter since 1928 (apparently without permission from any relevant copyright holders, too). The mark is functional because while anyone can create new movies that use the Peter Pan character and story, and can use that mark in the title, doing so doesn’t confuse anyone about the origins of a particular brand of peanut butter.

        This rule basically was established in Kellogg; there, once the patents applying to shredded wheat cereal, which had been sold under the mark SHREDDED WHEAT, expired, anyone was free to make the exact same cereal. And since the mark merely described the cereal, and not cereal from a particular source, while the mark might have been protectable when the patents were in force so that there was only one source, when the inventions entered the public domain, they dragged the trademark along with them.

        The same reasoning applies for the interaction between copyright (and the copyright public domain) and trademarks. Copyrights are the superior right, and trademarks cannot be used as a substitute for copyrights. This is the rule from Dastar, in which Fox tried to prevent the republishing of public domain films under a trademark argument. The Court ruled 8-0 that once a work entered the public domain, trademarks could not be used to prevent this.

        So what’s going to happen to a SHERLOCK HOLMES mark? If it gets as far as a court issuing a ruling, it will be that the SHERLOCK HOLMES mark is not protectable. Anyone can (and these days everyone does) make new works featuring the Sherlock Holmes character. Anyone can call that character by his name. This means that the public cannot possibly believe that works featuring the character originate only from a particular source. And even though a handful of the Holmes stories are still copyrighted, these cannot either 1) be used to prevent the use of the public domain Holmes materials (as was decided recently), or 2) be used to shore up a SHERLOCK HOLMES mark unless it can be proven that the public that enjoys such works is aware of the difference between works that use only public domain or new Holmes materials from those that also use the rump of the copyrighted original Holmes materials, and can distinguish between them in the marketplace, and actually does so.

        The Doyle estate got greedy and has been losing routinely now that they’ve finally become less expensive to fight than to pay off. But then, that’s the expression, isn’t it? Pigs get fat, but hogs get slaughtered.

        I’d almost congratulate you for reaching a new low were it not for your ridiculous posts earlier in the year against free speech in general. I hope that you’re just trolling for some reason, and that you don’t actually believe the crap you’ve been writing. If that’s all, it’s merely disappointing that you feel some need to resort to this. I hope that’s the case because the alternative — that you actually believe these things — is too sad to contemplate.

      • So, you don’t like the posts then? Fair enough. But making a claim that I’ve ever written against free speech is absurd.

      • I think it’s nice that you have an opinion about how the case will be decided. How nice for you. You may be right, but it mught help you to examine some other cases that have come up regarding characters from public domain works.

        It’s not so much that the Doyle estate is greedy, I have no idea, but I do think they were late as coimpared to the Burroughs estate with it’s trademarks, Howard’s Conan, etc.,

      • Jason–

        Neither of the two notable Frederick Warne cases (PETER RABBIT etc.) support the other side of the argument here. In fact the one before the TTAB said of the illustrations that were sought as a mark: “[I]t is clearly a descriptive illustration serving to depict in visual form the figure about whom the book’s “Tale” is told. … It is difficult to perceive a purchaser who would be likely to make the necessary distinction between those illustrations found between the covers of the book as being the creative work of Miss Potter and that appearing ont he cover as a mark of identification of the publisher. In our opinion, the obvious impression would be that one and all are the author’s creation and that all appear as aids to an understanding of the text. It is [the] applicant’s burden to prove that the public has come to view the illustration not as a visual description … but as a trademark.”

        Now, Frederick Warne has PETER RABBIT trademarks for a number of things, such as cookies, and there’s no problem there. They’re certainly not the only holders of PETER RABBIT trademarks, though, and they’d find it hard to defend an alleged mark with regard to creative books that directly or even closely copied the public domain books.

        In Fleischer Studios, the 9th Circuit’s second opinion endorsed the Universal holding that fractured, unrelated use of a mark destroys its protection as a mark, though the evidentiary record in Fleischer didn’t indicate whether or not there was such use.

        And then the district court, on remand, revived the aesthetic functionality analysis that the 9th Circuit had been avoiding, and determined that even assuming that the BETTY BOOP character trademarks were valid (skipping whether or not there was fractured use), the use of those marks for artistic purposes wasn’t a trademark use to begin with. That is, in a creative context, the use of the character doesn’t indicate source, and use of the character’s name merely identifies the character and also doesn’t indicate source. The district court found that trademark fair use also would allow the free use of the character, assuming that there even were trademarks.

        Really, cases that present this exact issue are pretty rare due to a couple of reasons, and it’s rarer still that they don’t just settle because the parties don’t want to litigate to a final judgment, whether because they don’t like their odds, or they don’t like the bill, or both. For example, you mentioned the Edgar Rice Burroughs estate, and I recall that they were suing a company that was making unauthorized comics based on the Barsoom stories that are in the public domain; but they settled and now the company is authorized, which doesn’t establish that they needed to be.

        So if you’ve got a good case you had been wanting me to look at, would you mind giving me a cite?


        Off the top of my head:

        Hint: you said yes.

        Of course, the standard M.O. of those who oppose free speech is to pretend that what they want to stop isn’t speech or isn’t ‘worthy’ speech or is otherwise an acceptable exception to the rule. It’s usually easy to tell who they are because they only support free speech that they like, or at least don’t find disagreeable. Actual defenders of free speech — the ones with principles — have to defend stuff that they personally hate, or even find harmful to society, because to limit free speech would be far more harmful than the speech itself.

      • Anonymous, there is arguably a difference between protecting offensive speech on principle–which I have repeatedly said I do–and criminal activity that is not protected speech. Drawing these contours has at many times challenged this country; and sometimes, we have failed to uphold the principle of speech. But the Internet challenges us to draw those contours anew. Today, every form of harm that can be conducted via cyberspace cannot universally be deemed protected speech simply because it is transmitted via a communications medium. To argue otherwise is not principled in the least. It’s more typically an argument borne of cowardice, laziness, or greed. Though I certainly enjoy being lectured on the courage required to protect free speech by people who hide their identities. It’s one of my favorite digital-age hypocrisies.

        I’m guessing though that you would defend the use of social media by ISIS as free speech. Perhaps I’m wrong about that, but certainly there are those who do feel this way, which demonstrates to me how distorted this particularly sacred–and at times hard-won–right has become in the digital age. At the point at which one defends the free speech rights of those who would eradicate the right of free speech itself, one needs to reconsider the absolutism of standing on principle. In a less dramatic way, it is unbalanced to defend the free speech rights of an individual who might use these media to infringe the speech rights of another individual (as can occur with something like revenge porn) through intimidation, shaming, etc.

        Meanwhile, if you’re really concerned about speech itself being preserved, don’t. The artists and thinkers who sign their names to their work have got it covered.

      • The mark the Doyle estate is concerned with is for film.

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