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Public Domain Superheroes FAQ
This is a legal issue, so by its very nature, it can be confusing. These two articles may be be useful in clarifying the differences between trademark and copyright, particularly the second article, which deals with cartoon characters.
- 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."
Cartoon characters can be protected under both copyright and trademark law. Copyright of literary characters was originally based on the written works, but cartoon characters, and by extension, comic book characters have a visual representation.
To complicate matters further, some "public domain" works may actually be "orphan works". "Orphan works" as the term is understood in the trade means works that may still be protected by copyright, but which have been abandoned by their copyright owners, or for which no copyright owner remains in existence.
- 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.
Q: What Is the Public Domain ?
The Public Domain consists of works and ideas that nobody may claim as their own. The wheel can’t be Trademarked, the King James Bible can’t be Copyrighted, and the Waterbed cannot be patented. Improvements and variations CAN be protected; Firestone and Michelin are Trademarked wheels, Bibles with the words of Jesus printed in red or having maps of the Holy Land added can be Copyrighted, and a specific design of Waterbed can be patented. In terms of print media, the Public Domain consists of works that existed before Copyright law (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 the characters here). Finally, real-life historical figures are, by definition, in public domain.
Q: 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 depicted therein. Hence, while they owned all the remaining prints and plates of hundreds of comics, they failed to renew the Copyright on most of the original printed material.
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. While they will probably lapse into public domain in some point, it won't happen for quite a while. For our purposes, much of what was created in the 1960s and beyond will be unusable for quite some time.
This chart offers a decent (if abbreviated) guide to figuring out which properties are in public domain and which are not.
Q: How Do I Find Out If a Character First Published in the United States is in the Public Domain ?
While we are not lawyers, the first step to find out if a character is in the public domain in the United States is to know when it was published and in what publication. Copyright laws have change over time so the next step is to look at the Digital Copyright Slider to know which conditions that must be met for the character 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 would come up for renewal before 1977 and the Copyright Office Records for those renewed after 1978. If the publication does not appear in either search it is mostly likely in the public domain, but this info is based off publicly available records and is not legal advice.
If the character appeared 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 in which the work was completed. If there is no copyright notice or the notice does not fit the correct format as cited above then the work became public domain for in-compliance with the formalities of the law. 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.
Some formalities that must be complied with are the proper location in the book which under copyright law from 1923-1977 was it must be "either upon the title page or upon the first page of text of each separate number or under the title heading." Secondly, if it was hidden in the artwork it goes 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." If either of these are not followed then the work would be in the public domain even if every thing else about the notice is filled out correctly.
Q: Trademark and Questionable Status ?
The standard for trademark infringement is called "confusingly similar."
Trademarks can be troublesome, as many Trademarked characters bear the same names as Public Domain characters, but the intention of Trademarks under the law 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 give him a winged helmet and blue tights with a red cape, that’s asking for a Trademark infringement lawsuit.
“Questionable” characters are just that: they’re claimed by somebody, but MAYBE that claim isn’t valid. An argument CAN be made that Fawcett's Marvel Family and Quality's Blackhawk ARE Public Domain, but DC is huge and you are tiny. Proceed at your own risk.
Q: 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 these three companies comics were not renewed or had improper copyright notices making them public domain. 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 whose copyright were renewed such as Marvel Family #1, meaning DC owns the copyright to Black Adam who makes his first appearance in that issue. Second, DC also owns the rights to their versions of the Charlton, Quality, and Fawcett's comic 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, and the Blackhawk. 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 character for DC's.
Q: 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, making those books public domain. As for Charlton the only books he would own would be any titles published after 1964 with a proper copyright notice and were not already purchased by DC Comics.
Max Collins like Broughton and DC Comics attempted to buy intellectual property from Charlton Comics in the 1980s. Collins bought the character Johnny Dynamite in 1987 and produced new stories featuring the character in 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 no renewed 28 years after publication, making those books public domain. So Collins only owns any new material he has produced not the original books published by Charlton and Comics Media.
Q: 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 such as Shield, Wizard, 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 not renewed at all. Most books did not get renewed until the company changed its name and its focus to Archie.
However ANY silver age appearances made by the Archie heroes ARE copyrighted and the company holds trademarks to the names of their characters which are currently appearing in the series of New Crusaders owned by Archie. Be sure to read about how to deal with trademarks in this FAQ.
Q: Are the T.H.U.N.D.E.R. Agents and other Tower comics characters really public domain ?
Yes, Tower Comics never registered its titles with the US copyright office, nor did it include a correct copyright notice on their books. The copyright notice on the first issue was not in the proper location of the book which 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 version of the T.H.U.N.D.E.R. Agents. 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.
Q: 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. 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!
Q: Derivative Works ?
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.
Q: Open Source Characters?
Some of the characters featured on the site are referred to as "open source" characters. These are more recent creations that the creators have decided to allow anyone to use as they see fit. Jenny Everywhere is the first of these type of characters. While each story these characters appear in is copyrighted to its creators, the characters themselves are free to use. Normally it is stipulated that this is specified by including this writing:
"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."
Q: Creative Commons Characters?
Creative Commons Characters are characters created specifically for, or later made available for, use by anyone provided they follow one or more restrictions, as guided by the various Creative Commons Licenses (which can vary from character to character).
There are various different licences under Creative Commons however, only two are allowed here. They are:
- Attribution (CC BY): Licensees may copy, distribute, display and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these.
- Share-alike (CC BY-SA): Licensees may distribute derivative works only under a license identical to the license that governs the original work.
Some of the characters in the Open Source Characters category have one or both of these licenses. As for what character falls under which license, please see that characters "Notes" section.
Also, please do not post which Creative Commons License a character falls under by name or link to the public deed.
Q: 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 actually 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.
Q: What about Orphan Works?
Orphan Works as defined by Wikipedia are:
"An orphan work is a copyrighted work for which the copyright owner cannot be determined, or when determined, contacted. In some cases, only the name of its creator or copyright owner is known, and no other information can be established. A work can become an orphan because the copyright owner is unaware of their ownership, or the copyright owner has died, or the copyright owner is a company that has gone out of business, and it is not possible to establish to whom ownership of the copyright has passed. In other cases, the author and origin of a work simply cannot be determined, even after great diligence has been conducted."
Thus, any use of the orphaned work outside of what is permitted under lawful fair use is potentially a violation of copyright so use at your own risk.
Adding an Orphan Work Character to the wikia must first be approved in advance.