The Public Domain

Before I start this post I want to make it perfectly clear that I am not a lawyer, and I am certainly not a Copyright Lawyer. So now that we have that out of the way let’s get started.

As a writer, and again I use that term loosely, this is something that I have looked into, but until I get majorly famous, I doubt I will have to worry about. When an artist, writer, musician, what have you creates something, whether it be a characters, or a beat of music the creator owns that item, unless stated otherwise, or unless created as a under a contract or work for hire. There are various ways to copyright your creations. The most full proof is to file something with the government in which case they will give you a certificate that it is protected from other people using your creation without your permission. Another way is to take your creation seal it in an envelope and send it to yourself. Once you get it in the mail do not open it, if anything ever comes up you will have a the letter showing when it was mailed and that you are the rightful owner. This is known as a poor man’s copyright. Another thing to do is have a trusted public notary date any document that would show you have ownership of the property in dispute. I do not know the legality of doing this, however I think this would hold up in court as long as the dates and what not could be shown as genuine. Still getting an official copyright I don’t think is expensive. I found that it cost $35 to get something copyrighted. How can something so cheap and that seems straight forward cause so much trouble?

iron-man-1049412_960_720There have been many famous cases over the years of copyright infringement. I am sure all comic fans remember Jack Kirby vs Marvel, there was also one with DC and the creators of Superman. Both of which are interesting because of the success of their creations. Kirby is credited with creating many of the characters in the Marvel universe. The dispute came from the fact that he created these characters while he was under contract with Marvel, which means that anything he created technically belonged to Marvel. Now in the normal everyday world that would be fine for the most part, the problem is that he created some of the most famous superheroes out there who have gone on to make billions for Marvel. But because Kirby was under contract he did not get any royalties for creating them. I am not sure what he got paid, but it was certainly a pittance to the revenue the characters have made. However, I am sure that he got paid whatever was in his work for hire contract, which, legally, is what he should have been paid.

Now whether you think this is right or wrong is a whole other issue and the reason for all the debate. What irks me is that some people think that Marvel should just give Kirby’s estate some enormous sum of money because of what he helped create. While that would certainly be nice and would certainly make Marvel look better in the public opinion, they are under no legal obligation to do so. I hate to say this but I think Kirby should have negotiated a better contract for himself or had some special clauses where he get a percentage of the royalties of the characters he creates. Basically he should have made preparations to increase his gains should one of these characters become ultra-famous, but that is just my opinion. Regardless this is a touchy subject and I do not think there is a perfect solution. I also would say that I doubt his estate would want them back if they were characters no one ever heard of, i.e. not making millions of dollars. I do not think Marvel did anything wrong, but regardless they settled out of court so I would assume Kirby’s estate got a nice settlement. See everyone is happy now.

superman-1043679_960_720The Superman situation was a bit more sticky, mainly because the character is quite a bit older than any Marvel character. He will be 78 this year, I think he has aged quite well if you ask me. The Sub Mariner and the original Human Torch both Marvel characters, made their debuts around this time. However, neither has reached the popularity of the Man of Steel, which I assume is why the creators estates is not making a fuss about their copyrights.

The Superman Warner Brothers mess is one that I don’t even know where to start, or quite frankly understand. It is very similar to Kirby and Marvel as Joe Schuster and Jerry Siegel are the two that created Superman, however they did so under contract working for Action Comics, which is where Superman made his first appearance. After many failed attempts to find a publisher or someone who would give them stable work while still working with the character, in 1938 Siegel and Shuster sold all rights to the character for $130 (the equivalent of $2,200 when adjusted for inflation. (Wikipedia) So not knowing the character would be famous they sold ownership to someone else, and were paid for it. Again to me this is an open and shut case. But when Superman blew up to world famous status, suddenly they felt like they had been wronged and felt they deserved a piece of the pie. I know I am in the minority here, but I don’t agree that they do, or in my opinion are owed anything. They should not have sold their interest in the character. The article above outlines the legal battle that has ensued and the outcome. Basically they sold the character, wanted it back, DC kept extending the copyright (which I am not sure how that works), and eventually settling with both Siegel and Schuster’s estates a few years ago out of court. So again everyone is happy.

Here is what I found about the expiration of Copyright Law according to Wikipedia – Copyright protection generally lasts for 70 years after the death of the author. If the work was a “work for hire“, then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works created before 1923 have made their way into the public domain.

So based on that I would think that Superman would be, or should be in the public domain around the year 2033, 95 years after its publication because that is the shorter of the two. I assume the same will go for many of the Marvel characters. That is what the law says. Well what if a company had the power and money to change the law? That is exactly what Disney has done with the famous Mickey Mouse. The famous rodent was created in 1928 so based on the above law Mickey Mouse should be coming into the public domain in the year 2036, which is 70 years after Walt Disney’s death in 1966. However, because of the power and lobbying Disney has been able to do they have actually been successful at changing the Copyright laws a few times through the years. This law is super complicated because it has been changed so many times. The article states that Mickey’s copyright is going to be up in 2023.

At the end of the day who cares about this, right? Well I know Disney is a massive billion dollar company recognized worldwide. However, they still make a ton of money off that silly mouse. In my opinion I do not think this character will really matter that much to the average person. There is a very small demographic that likes Mickey, mainly young children. They will not care one way or the other who owns the rights to him. Disney will, because they will lose revenue, but in the grand scheme of things they now own Marvel and can easily make up that revenue by other means. In particular like raising the price to their theme parks, or charging more for the comics Marvel creates.

hulk-861754__180On the other side of this debate are the superheroes (did you know that both Marvel and DC have copyrighted that term, superheroes, how the hell does that happen?). My question is what is going to happen when these characters like Superman, Bat-Man, and The Fantastic Four enter the public domain? I would argue that it may not be a good thing as then any writer or artist could create a story or comic with these characters and sell them. With Mickey kids don’t care about his back story and all that noise, they just want to be entertained for a few hours. With Iron Man, Wolverine, and Bat-Man they have very specific stories and fans have followed them from basically the beginning. So what happens when anyone can write a story using the character. It could be  good thing, or it could end up with something like Star Wars, where there are a plethora of book and comics and other material out there that the average fan does not know where the story line is. This eventually caused much confusion about what is really going on in the universe, and having Star Wars officials having to make a ruling on what is official an what is not in the Star Wars canon. This seems rather silly to me, but everyone wants to make money, and once you put those famous two words on something it is going to make money regardless if it is good or not. Star Wars was not in the public domain, but there is just so much other material out there, all in the sense of making money, that it really dilutes the characters and the original story. Perhaps I am too nostalgic in wanting to protect the original story, and that the companies that own the characters know what is best for them and what problems they will tackle next.

The problem is that the characters are so popular. Look at Dracula, Robin Hood, and Frankenstein, both are in the public domain, and popular, but not to the extent of any Marvel of DC character. So them being in the public domain is a nonfactor, in my opinion. Never has this happened before, or at least I cannot think of a set of characters that are immensely popular to enter the public domain, at least not like this. In some sense I think my own views are slightly communistic, those with the power should keep it, but I just cannot see the benefit of these popular, legendary characters being in the public domain. I will say that we could get some very cool and different stories out there, but I think there would eventually just be so much crap that it could very well destroy the legacy of many if not all of these characters. Part of the lure is that there is only one publisher, and generally one story line to follow with these characters. Basically, constricting the supply creates more demand. On the reverse if there is unlimited supply, the market is flooded and the demand will be much less even if these characters are immensely popular. Do you think Star Wars: The Force Awakens would have had the record breaking sales it did if it was the second or third Star Wars film released this year, I highly doubt it.

So what do you do then? As a lawmaker I don’t think you can just keep renewing these characters forever, but I also think that there should possibly be some sort of exception needs to be made. Something along the lines of regardless of a characters age or copyright that if it still generates $X,XXX,XXX amount of sales a year then the copyright can be extended. I know that may seem wrong, but I do not think that these characters should really be in the public domain. Copyrights were originally created to protect artist work, but I am sure that no one imagined the money making power of some of the characters that are out there now.

I guess my point of all this is that I am not sure that these characters should be allowed to enter the public domain. I am not sure it would be good for the corporations that own them or the public to be able to use them in any way they want. The good think is that none of this will happen for a good long while, if ever. Still though something to think about.

Would you want to see your favorite childhood characters and superheroes enter the public domain?


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