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[markapplelover]

Can someone knowledgeable explain to me how America's greatest comics can be in the Public Domain but Captain Marvel is not? And can some tell me which charcters from Fawcett are in the Public Domain?

Thanks

[John C]

There aren't any laws for copyrighting a character; they're only artifacts or elements of the stories in which they appeared (ignoring trademarks, of course, and possibly design patents, in theory).  So Captain Marvel is in the public domain, provided you don't use any element of the character that originated in a copyrighted source, and the same goes for any character, Fawcett or not.

[Ed Love]

It's a tricky issue. There have been court rulings that do claim that copyright does cover a character in that it recognizes a character is made up of his stories and vice versa (try telling that to today's creators who completely retcon out of existence the original stories if they reference them at all). But, this is tricky when talking about comic book characters who appear in multiple titles over periods of years and only some of them have been renewed and the majority has not. I don't know if a case regarding derivative works based on such a situation has actually gone to court establishing a precedence one way or another. I would like to know.

What has to be recognized is that DC does have the trademarks to Captain Marvel (apart from being able to title the book that), and enough of his stories have been renewed to make it inadvisable to challenge it unless you have deep pockets. And, there is the legal precedent as well to the lawsuit against Captain Marvel. Sure, Fawcett ultimately threw in the towel, but that too might prevent anyone else but DC being able to publish new material with Captain Marvel as it has a legal precedent against him as violating the copyrights of a DC property (which might be interesting in that DC might via the same loophole have a "right" to derivative works of Fox's Wonderman though the original story is clearly public domain). Unless someone wants to challenge the rulings.

[bchat]

What has to be recognized is that DC does have the trademarks to Captain Marvel (apart from being able to title the book that),

I think you meant "DC has the Copyrights", not "Trademarks", right?.  I don't mean to nit-pick but there is a difference between the two and anyone not familiar with the two concepts could get confused by the incorrect wording.

[John C]

Marvel owns the "Captain Marvel" trademark.  DC (presumably) owns trademarks like the costume, the Billy Batson identity, Shazam, and so forth.

I should make the minor correction that Fawcett didn't QUITE "throw in the towel."  They lost.  The settlement was to avoid the endless and prohibitively expensive process of determining damages by (likely literally) comparing every Captain Marvel image to every Superman image to see where an idea was used first.  (To give an example, Captain Marvel bouncing bullets off his chest would increase the damages paid out, but Fawcett might mitigate some of that by showing Captain Marvel flying before Superman did.)

The problems with characters is that the "accepted view" of most characters comes from a copyrighted source, for the simple reason that this is the source that the companies push.  So when I say "Frankenstein," you immediately think of a castle wherein a green-tinted patchwork man is being electrified back to life.  However, that image has precious little to do with Mary Shelley's story.

If you were to write a new Frankenstein movie--because the Universal trademark (that's essentially what it is, after all) is so strong--you would need to take absolute care in avoiding even the implication that your character is at all derived from the classic movie.

The same (at least in my opinion--I do suggest checking with a lawyer for your specific case) would be true for Captain Marvel.  Ignoring the trademarks (which, again, are there to make sure that you don't imply DC's support for your project), as long as you don't derive from or imply any information found in a DC-created book or Fawcett/CBS-renewed book (add the various TV appearances, too), and it's a perfectly valid use.

While Ed is right that the courts have sometimes ruled on the concept of "character," it's usually because some jerk tried to publish an unauthorized sequel under the pretext that a "derived work" would copy the text somehow.

A good example of how this ends up working is Warner's suit against "The Greatest American Hero."  They tried to block release of the series because the "character concept" was too similar to Superman's.  They lost, and and the material talks a LOT about what makes a character unique.  The same guidelines have since been used against singing telegram companies and online video games.

[happyhuman]

Just a suggestion, but maybe it would be best to create a list that state (as far as one's knows) which characters are public domain and free to be used by anyone and which are not (or not sure) so that people who want to use a certain character can do so more easly.

Although maybe that sort of list belongs more on pdsh.wikia then here

[Yoc]

A HUGE HUGE undertaking fraught with potential mistakes/trouble HH.
We've always stressed - nobody on GAC is a copyrights lawyer.  Don't take our word as gospel on specifics.
We would not want to give the impression of being an authority by creating such a list.

If someone is seriously thinking about using a PD character please do the smart thing and hire a qualified lawyer before anything.

-Yoc

[John C]

And not only are we not lawyers, as I explained, there ain't no such thing as a "public domain character."  Stories are under copyright or in the public domain, and characters are intertwined with them.

There are Superman stories in the public domain, which means that you can use Superman as a "public domain character," as long as you don't use any material originating in a copyrighted source.

That's the reasoning you need to use, here, and it makes a "list" impossible.  You can't create your own Rocky movie, because the Rocky character comes only from copyrighted sources.  You can use Superman if you're careful.  You can use Captain Marvel with a bit less care.  You can use Sherlock Holmes even more liberally.  And you can use, say, Hercules as long as you don't use any modern interpretations.

Anybody who claims to have a list doesn't understand the law and the list, then, probably shouldn't be trusted.  You need to check the stories you're basing things on, NOT the character.

Oh--and that doesn't even begin to talk about trademarks.  Or the fact that a trademark need not be registered or explicitly used as such to be defensible in court, for that matter.

[OtherEric]

It's worth noting that it would be pretty much impossible to use any of the PD Superman material since almost all of it originated in material that IS still under copyright.  You might be able to grab some of the plots and re-work them with other characters.  (I think the major PD Superman material is the cartoons.) 

[Yoc]

The Superman depicted in the last Fleisher cartoon, Secret Agent, holy cats was he a ruthless 'hero' in that one.
Almost maniacal in fact.  It was the last of the bunch for me to see and it left me speechless at the time.

-Yoc

[John C]

I half-plan to look into this in more depth, one day, but I'd start with the radio show instead of the animated bits.  There's a lot more material there than anywhere, uncopyrighted, and originated concepts and characters like Jimmy Olsen and kryptonite.  It's important especially for its unique origin, where Krypton is opposite the sun in Earth's own orbit, and about to fall into the sun--Jor-El sends the baby to Earth, but he doesn't arrive until adulthood.

From that base, I'd then postulate that the trademark-free Superman would have any of Superman's abilities shown by an earlier character like Hugo Danner (who also provides the template for Siegel's description of Krypton), John Carter, or others.  Maybe mix in other ideas from those and similar sources to adjust the character away from what DC has since created.

Cleaned up enough (which would admittedly be a significant effort), the result should be completely devoid of any Intellectual Property that somebody has a valid claim to, and could be used safely.

[Yoc]

Sounds like a great project for some fanfic John.
With an index at the end to explain what influences were used where for the curious types like myself.

[crimsoncrusader]

I agree with Yoc, that is a great idea to use the radio show John.

[John C]

Thinking out loud:  If I were actually going to attack it, it'd probably be more as an ongoing research project in the public eye (I like the "book club" metaphor for this sort of thing), looking at a couple of chapters every so often and pulling out what relevant information is available.  Then the resulting "biography" can be released under some kind of Creative Commons-y license, so that the character is then explicitly usable by whatever actual writers actually need such a thing.

I mean, you're talking about (by my count) allmost four hundred hours of the radio drama, the seventeen theatrical shorts, six novels, one philosophy book (Nietzsche has at least a strong parallel, but given certain turns of phrase, more likely contribution), at least two short stories, and two comic strips--three, if the Superman newspaper strip copyrights are actually invalid.  And that's not to mention reviewing DC's Superman stories to ensure that, for example, super-hearing didn't appear in the comics before the radio.  So, it's not something where you hide in a basement for a week and push out the results on a webpage.

But that's good, because working in the open lets other people spot things I (or anybody else who runs such a project) might overlook.

Edit, with some minor changes above:  This assumes that other Superman-clones are insufficient, of course, as well.  In a lot of cases, where Superman would do, I'm sure Fox's Wonder Man would work just as well.  Sure, DC prevented the character from continuing, but that was when Superman was more unique.  In today's landscape littered with the likes of Majestic, Sentry, the Caped Wonder (OK, I guess that's more parody), Samaritan, Supreme, and a whole parade of others, I doubt anybody would raise an eyebrow at poor old Fred Carson.

[boox909]

Edit, with some minor changes above:  This assumes that other Superman-clones are insufficient, of course, as well.  In a lot of cases, where Superman would do, I'm sure Fox's Wonder Man would work just as well.  Sure, DC prevented the character from continuing, but that was when Superman was more unique.  In today's landscape littered with the likes of Majestic, Sentry, the Caped Wonder (OK, I guess that's more parody), Samaritan, Supreme, and a whole parade of others, I doubt anybody would raise an eyebrow at poor old Fred Carson.

Fred Carson is still slated to appear again in comics sometime next year, so I am looking forward to that.

http://wondermangraphicnovel.blogspot.com/2007/07/wonderman-coming-in-2008.html

B.

[John C]

Fred Carson is still slated to appear again in comics sometime next year, so I am looking forward to that.
http://wondermangraphicnovel.blogspot.com/2007/07/wonderman-coming-in-2008.html

Although it probably doesn't bode well that the blog went dormant after two posts, I hope someone gets around to doing the guy justice.  While I understand why DC and the courts were up in arms in terms of specific comparisons of details, when I finally got to read the story here, I was impressed how distinct Carson was from that Kent guy.

If only the Moth was so clearly defined.  Whoever decided that this was sufficiently Batman-like to go to press needed some serious help, and the complete discontinuity between stories doesn't help, either.

[Roygbiv666]

Just a suggestion, but maybe it would be best to create a list that state (as far as one's knows) which characters are public domain and free to be used by anyone and which are not (or not sure) so that people who want to use a certain character can do so more easly.

Although maybe that sort of list belongs more on pdsh.wikia then here

A general resource would be:
http://pdsh.wikia.com/wiki/FAQ#Public_Domain_Superheroes_FAQ

Again, if you really want to use some character, story, etc. check with a lawyer.

[Roygbiv666]

Fred Carson is still slated to appear again in comics sometime next year, so I am looking forward to that.
http://wondermangraphicnovel.blogspot.com/2007/07/wonderman-coming-in-2008.html

Although it probably doesn't bode well that the blog went dormant after two posts, I hope someone gets around to doing the guy justice.  While I understand why DC and the courts were up in arms in terms of specific comparisons of details, when I finally got to read the story here, I was impressed how distinct Carson was from that Kent guy.

If only the Moth was so clearly defined.  Whoever decided that this was sufficiently Batman-like to go to press needed some serious help, and the complete discontinuity between stories doesn't help, either.

Wonder Man (Fox) is an interesting one.  A nice summation of the legal case can be found here: http://www.brittonpayne.com/Marvel/SupermanWonderman.htm

Basically, DC brought action against Fox for copyright violation - Wonder Comics #1 is basically a blatant rip-off of story elements and panels from various Superman and Action Comics issues.

[John C]

I wouldn't say "is a blatant ripoff," since the story and characters are very different than anything in Superman.  It, however, does contain a large number of elements that, at the time, could only be logically derived from Superman.

If you haven't already, I recommend reading the story.  We only have a microfiche scan, but it's enough to get through the story.

My point, there, was that, while Wonder Man was a big deal seventy years ago, today, everything he "steals" has become a part of the generic superhero vocabulary.  Characters wear primary colors, vault through the air, catch projectiles, and wear their costumes under street clothes; they fight for universal justice and so forth.  So what was once a dangerous move would now be an injunction-free par for the course.

[Roygbiv666]

I wouldn't say "is a blatant ripoff," since the story and characters are very different than anything in Superman.  It, however, does contain a large number of elements that, at the time, could only be logically derived from Superman.

If you haven't already, I recommend reading the story.  We only have a microfiche scan, but it's enough to get through the story.

My point, there, was that, while Wonder Man was a big deal seventy years ago, today, everything he "steals" has become a part of the generic superhero vocabulary.  Characters wear primary colors, vault through the air, catch projectiles, and wear their costumes under street clothes; they fight for universal justice and so forth.  So what was once a dangerous move would now be an injunction-free par for the course.

I've read it and you're right, but "super heroes" had only been around for a year when he appeared, so everything is derivative of Superman. But the main thing is that Judge Hand cited specific panels and combinations of words as being infringement, not just the abstract notion of a "super hero". Erosion of the concept? Or has the concept become "stock"?

Strange nobody's really brought him back, expect that seemingly dead blog (which I think is Brad Spencer, Wonderman from Nedor/Standard/Better rather than the Fox Wonder Man).

[kquattro]

I wouldn't say "is a blatant ripoff," since the story and characters are very different than anything in Superman.  It, however, does contain a large number of elements that, at the time, could only be logically derived from Superman

It's worth remembering as well that Eisner testified that he had been directed by Fox to create a knock-off of Superman. This corroborating testimony had to strengthen DCs position and make Hand's decision easier.

--Ken Q

[John C]

I've read it and you're right, but "super heroes" had only been around for a year when he appeared, so everything is derivative of Superman. But the main thing is that Judge Hand cited specific panels and combinations of words as being infringement, not just the abstract notion of a "super hero". Erosion of the concept? Or has the concept become "stock"?

A little of both, I'd imagine.

For example, when a character had Superman's powers AND revealed his identity to the reader by opening his shirt, that was infringement.  However, when other heroes started doing it as well, it was no longer a (I hesitate to use the term casually, here) trademark of Superman, and is now employable by Superman clones because it's no longer unique to the context.

Likewise, in many circles, Superman is very much a stock character, with Marvel alone claiming at least five characters I can think of that are really, really close.  (And heck, going back to the Golden Age, it seems like half of Nedor's characters were indistinguishable from Superman.)

And yes, that's how Hand had to rule.  Copyrights are about the details, not the big picture, so it's only a comparison of details--text and pictures--that you could ever say yes or no.  If only Fred's costume had been a different color or he hadn't caught that shell in the air...well, Fox wouldn't have bought it, but if he HAD, DC might not have had a leg to stand on.

Ken also rightly brings up Eisner's testimony.  However, the court should have seen that as mostly circumstantial, since the intent behind a work doesn't really affect whether or not it's a copy.  It does, however, do a great job of coloring the interpretation.  I mean, you can't convict someone for murder, for example, if he plans it out then...goes to Six Flags instead.  (The episode is also worth pointing out as a testament to Eisner's abilities:  Even when tasked with merely copying, he came up with something that's only a hair's breadth away from having been a hit in its own right, unlike Fawcett's Master Man, say.)

That's why I recommended building a new Superman off of the differences in public domain material.  The differences add up quickly and scrub out the similarities to what's now considered generic.  And, by the way, I'm thinking more about performing the review I suggested; I have a lot of balls in the air, these days, and am on the verge of--gasp!--blogging so people can keep up to date, use things I release, and chip in wherever they feel like.  And as I think about it, this is the sort of thing that'd mellow out some of the intense programming projects I have ahead.  I'll mention it when it's running, for the interested parties.

Strange nobody's really brought him back, expect that seemingly dead blog (which I think is Brad Spencer, Wonderman from Nedor/Standard/Better rather than the Fox Wonder Man).

The book was supposed to be about the Nedor character, as far as I can tell, with the Fox character making an appearance.

It's possible that the series didn't happen because the Nedor book copyrights only have "one foot in the grave," so to speak, and many could be owned by National Amusements, Warner Brothers, or someone we've never heard of.

[Yoc]

Hi John,
Please let us know about the blog when it's running.
I've very much like to see what you come up with!

-Yoc

[John C]

Will do.  Though fair warning, of course, that it'll probably be mixed in with (or buried under) programming, cooking, education, and, y'know, whatever other geeky stuff happens to be on my mind when I write.  It may not win me millions of fans, but it should be a good excuse to vent and to have a place to point potential employers as I move into job search mode.  (Gotta love running a small automated company that doesn't need my input--when money's tight, I can wander away without bothering anybody.)

One piece I that'll be the biggest pain is checking against copyrighted sources.  Has anybody, by chance, run across a list of when Superman's powers first saw print?  I've seen lists of evey single power ever to see print.  I've seen which "Smallville" episode showcased a power.  However, I've never seen, for example, which issue first showed Superman using his X-Ray Vision.

(Not that X-Ray Vision is the specific concern, of course.  I actually have a pre-Siegel instance of the ability in a source I was already planning to use.)

As much fun as it could be to ALSO review every single early issue of Action Comics or Superman for content, that's a lot of extra noodling around.

[JonTheScanner]

What "superman" power doesn't pre-date Superman in print?
Super-strength, flying, super-speed date back to at least the Greek myths.  You say you have a pre-Superman X-ray vision.  What does that leave us?  Microscopic vision, heat (Infra-red) vision, super-ventriloquism might be original to him.  There was at least one Golden-Age story each in which he could alter his face and project visible light (as opposed to X-rays) out of his eyes.  I doubt the former is original to Superman; the latter might be.