Public Domain Superheroes FAQ
What Is the Public Domain?
This is a legal issue so, can be confusing. These two articles (particularly the second) may be useful in clarifying the differences between trademark and copyright:
- Legalities 31: Creating brand images for your client — who owns what rights?
- Legalities # 29: Infringing Cartoon Characters
The standard for trademark infringement is called "confusingly similar." The standard for copyright infringement is called "substantially similar."
In regards to cartoon and/or comic book/strip characters, visual representation must also be taken into account.
To complicate matters further, some "public domain" works may actually be "orphan works".
- Welcome to the Public Domain
- Superheroes: An Overview of Protecting Characters Under the Law a Copyright Law – Final Paper by Eric Green.
- Copyrights of Golden-Age Comics an essay by a Golden Age affectionado formerly known as Cash Gorman.
- THE PROTECTION OF FICTIONAL CHARACTERS by IVAN HOFFMAN, B.A., J.D.
The Public Domain consists of works and ideas that nobody may claim as their own. The Bible can’t be copyrighted and the wheel cannot be patented. Improvements and variations CAN be protected; Firestone and Michelin are trademarked versions of the wheel and (as a hypothetical example) a Bible with the name "Jesus" printed in red or having maps of the Holy Land added can be copyrighted. In terms of print media, the public domain consists of works that existed before copyright laws (Don Quixote or the Illiad), those that are too old to be protected any more (Frankenstein and Dracula), and those whose copyrights have run out and weren’t renewed (like most of the comic book characters here). Finally, real-life historical figures are, by definition, in the public domain.
Why Are These Characters in the Public Domain?
In the early days of comics, publishing companies came and went with great frequency. Most of the defunct companies never bothered to renew their copyrights. Many were bought out by other companies that also failed to do so. For instance, DC bought out Quality, but evidently made the same mistake as many other companies: confusing the actual possession of the original property with legal ownership of the characters and stories they debuted in.
The Copyright laws in the United States have changed several times over the past century. The changes made in the 1960s, 1970s, and 1990s significantly extended copyright terms for the works which were still in copyright at that point.
How Do I Find Out if a Character First Published in the United States is in the Public Domain?
While we are not lawyers, this chart offers a decent (if abbreviated) guide to figuring out which properties have entered the public domain and which have not (yet).
Having said that, the first step to finding out if a work is in the public domain in the United States is to know when it was first published. As stated, copyright laws have changed over time so the next step is to look at the Digital Copyright Slider to know which conditions must be met for a work to be in the public domain.
If it is a matter of renewal (which applies to works published between Jan. 1, 1923- Jan. 1, 1964), check The First Copyright Renewals for Periodicals List for works that came up for renewal before 1977 and the Copyright Office Records for those renewed after. If the publication does not appear in either search, it is most likely in the public domain (however, this info is based off publicly available records and NOT legal advice).
If the character debuted in a publication between 1964-1977, then you need to find a copy of the publication and check for a proper copyright notice. A proper copyright notice consists of a word/abbreviation/symbol designating copyright such as (copyright, cprt, or ©), the name of the copyright holder, and the year the work was published. If there is no copyright notice or the notice does not fit the correct format as cited above, then the work instantly entered the public domain upon release. An example of this would be frequent use of "International Copyright Secured," which is an incorrect notice and statement as there is no such thing as international copyright law.
Noting the location of the notice is also very important as it was required to be "either upon the title page or upon the first page of text of each separate number or under the title heading." Thus, if it were hidden in the artwork, it went against this: "The notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination." Again: if either of these were not followed, the work entered the public domain immediately.
Trademark and Questionable Status?
Again: the standard for trademark infringement is called "confusingly similar."
Trademarks can be troublesome, as many trademarked names are the same names as public domain characters but, per the law, the intention of a trademark is to protect the consumer from fraud. Hence, if you’re going to print collections of the original Lev Gleason Daredevil, make VERY SURE that NO ONE could POSSIBLY confuse it with the trademarked Marvel character! Anyone can make a comic book about the Norse God Thor but, if you use the name "Thor" on the cover (or the aforementioned "Daredevil"), you are infringing on Marvel's trademark because a consumer could become confused prior to purchasing your comic, believing they are taking home a work featuring Marvel's versions.
“Questionable” characters are just that: they’re claimed by somebody, but MAYBE that claim isn’t valid. Per the laws, Fawcett's Captain Marvel IS in the public domain but, DC is huge and you are tiny. Proceed at your own risk (and see next point).
Doesn't DC Comics own all of the Charlton, Quality, and Fawcett's comic characters?
No. While DC comics bought all three of these companies, the majority of their comics were not renewed or had improper copyright notices. For example, Whiz Comics #2 was not renewed meaning all of the characters who first appeared in this issue are in the public domain such as Golden Arrow, Spy Smasher, Ibis the Invincible, and even Captain Marvel.
However, first thing to know is DC DOES own the rights to books where the copyrights were renewed such as Marvel Family #1, meaning DC owns the copyright to Black Adam (whose first appearance is in that issue). Second, DC also owns the rights to their versions of the Charlton, Quality, and Fawcett characters because they are derivative works. Finally, even if DC doesn't own a character, they probably own the trademark to any of the prominent character's names such as Blue Beetle, Plastic Man, etc. This doesn't mean you can't use the character, though, it just means you need to call them by a different name or only use the name in the interior pages of the book so as to avoid anyone confusing your version of the character for DC's.
What about Roger Broughton buying ACG and Charlton or Max Collins buying Johnny Dynamite from Charlton?
Roger Broughton was a comics publisher who, in 1986, not only purchased the rights to the remaining Charlton Comics properties not bought by DC but, also the ACG materials. However, while Brougton bought the rights to the material, the only comics from ACG he owns are the books published after 1964 since all pre-1964 books were not renewed 28 years after publication. As for Charlton, the only works he owns are any titles published after 1964 with a proper copyright notice (that weren't already bought by DC).
Max Collins, like Broughton and DC, attempted to buy intellectual property from Charlton in the 1980s. Collins bought the character Johnny Dynamite in 1987 and produced new stories featuring him in both 1994 and 2003. However, Johnny Dynamite's first appearance in Dynamite #3 (and subsequent appearances in issues #4-9, as well as Johnny Dynamite #10-12 and Foreign Intrigues #14-15) were not renewed 28 years after publication. Thus, Collins only owns the new material he has produced.
What about MLJ and Archie characters?
Yes, MLJ, the company that would later become Archie, did not renew many of their books including all of the ones featuring their superheroes the Shield, the Wizard, the Black Hood, and Steel Sterling. For example, Pep Comics was not renewed until issue 72 and books such as Blue Ribbon and Zip Comics were never renewed at all.
Are the T.H.U.N.D.E.R. Agents and other Tower comics characters really in the public domain?
Yes, Tower Comics never registered its titles with the US copyright office, nor did they include proper copyright notices. As for T.H.U.N.D.E.R. Agents, the copyright notice on the first issue was not in the proper location of the book which, as previously stated, under copyright law at the time of its publication, had to be "either upon the title page or upon the first page of text of each separate number or under the title heading." Secondly, it was hidden in the artwork, which goes against the part of the law that stipulates that the "notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination." According to US copyright law, all works published between 1923-1977 that did not comply with copyright law became public domain upon publication. So, because the first issue had an incorrect notice, the characters fell into the public domain.
However, the above only applies to the Tower Comics versions of the characters. All subsequent versions published by DC Comics, JC Comics, Deluxe Comics, etc. are NOT. Also: the T.H.U.N.D.E.R. Agents are currently trademarked by John Carbonaro's estate (Carbonaro himself died in Febuaury 25, 2009). As far as using them, see our disclaimer about disputed characters - the Carborano estate continues to assert its copyright over the Tower Comics version of T.H.U.N.D.E.R Agents so, anyone who uses them should be prepared to deal with their lawyers.
How Do I Use These Characters?
Any way you want! Download copies of their adventures and print them for sale! Write and draw new adventures for the Green Lama, make a movie about the Blue Beetle, write a novel starring Yank & Doodle! Use their images in advertising, on posters, for greeting cards, etc! Make balloons in their image or start a line of action figures that no child will recognize! Your NEW product is YOURS and no one can use it without your permission. Just make sure you DON’T copy someone else that’s using the same character, because THEIR new product is THEIRS!
In the United States, the Copyright Act defines "derivative work" in 17 U.S.C. § 101:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
If you collect all the adventures of Cowboy Sahib and edit them into one large hardback, you are now the proud owner of a derivative work. Image’s Next Issue Project, where they pick up the story of a character from the last issue published, is a prime example. Download the adventures of Golden Lad and change the word balloons for comic or political effect, and you have a derivative work. Basically, if you didn’t invent the character or story, it’s derivative.
Open Source Characters?
Some of the characters featured on the site are referred to as "open source" characters. These are more recent creations the creators have decided to allow anyone to use as they see fit. Jenny Everywhere is the first of these. While each story these characters appear in is copyrighted to its creators, the characters themselves are uncopyrightable. Normally, this is stipulated by including this paragraph:
"The character of (Character Name) is available for use by anyone, with only one condition. This paragraph must be included in any publication involving (Character Name), in order that others may use this property as they wish. All rights reversed."
All new open source characters must first be published here and, after being reviewed by the team of admins to determine whether it meets the standards required to be posted here, an admin will move the page.
What About Old Time Radio?
The majority of Old Time Radio (OTR) shows are believed to be in the public domain. However, copyright law for OTR varies from state to state. Many, many characters originated in OTR programs. However, we are going to avoid using OTR as a basis, since that falls into questionable status.
What About Orphan Works?
Thus, any use of an orphaned work outside of what is permitted under lawful fair use is potentially a violation of copyright so: use at your own risk.