This note is prompted by an earlier thread on this message board regarding the "ownership" of scans of old comic books -- and a few broader thoughts on the subject of comic book scans and copyright. Because there is talk of deleting old forum threads, I thought it best to start a new one. This is a topic that I think ought to be of interest to all who are engaged in the scanning of old comics.
In the earlier thread, a comic-book scanner who had marketed his own "Comics on CD-ROM" was protesting that several of his watermarked scans had turned up on this site, and he was demanding their removal. Several posters pointed to an article on Wikipedia that cited a 2001 case involving Corel software that tended to indicate that scans of public domain work could not be copyrighted. The scanner raised questions about that legal ruling, and argued that it was unclear whether that had anything to do with this case. The Wikipedia article itself was a little confusing, because it discussed a U.S. case and then tried to assess its implications for U.K. law, which is a little silly.
I stumbled across this forum this evening and immediately was interested in the discussion. There is quite a bit more to the story, and I thought I should clarify a few points. I realize that this is a U.K. site, but it also strikes me that most of the confusion surrounds U.S. copyright law, since that is the law that governs the copyrights of the vast majority of golden age comic books.
The scanner is making a serious error, at least as far as U.S. law is concerned. The principle under discussion is actually well established here in the States. The Corel decision was based on earlier decisions, and the underlying cases firmly establish that the scanner has no right to control the scans he made.
I became interested in this issue years ago, because of an interest in a parallel field. At one time I was a collector of old-time radio programs (though my interest has waned considerably). These recorded materials are very similar to comic books, in that the vast majority were either never properly copyrighted or they were allowed to lapse into the public domain when a renewal was required under U.S. copyright law.
There was a flurry of excitement around the copyright issue in the late nineties, when a seller of old-time radio recordings maintained that he had negotiated agreements with surviving copyright holders of some of these shows, and that he had exclusive rights to distribute them. I became curious enough about the issue that I wrote a freelance piece about it for the L.A. Times in 2001.
There are a few differences between that field and this -- until the seventies, sound recordings could not be copyrighted but other elements could be, such as music and scripts. And the gist of the legal issue in that case was this -- if copyrights remained in force, and the distributor had struck agreements with legitimate owners of the copyrights, he indeed had the right to demand exclusivity. Not that he could practically do anything to stop the flood-tide of MP3s -- I understand his company is in financial trouble today. But that's not really the issue we're discussing here. In researching the legal principles involved, in conducting numerous interviews with legal scholars and reading case law myself, I learned a good deal about the issues swirling about the American concept of the public domain. I can tell you that anyone who thinks he "owns" a scan that he has made of an old comic book is sadly mistaken. (While I can't tell you the legal citations off the top of my head, I am sure they would turn up in the footnotes to the Corel case.)
The basic idea is this: You can't claim a copyright in something that is in the public domain, unless you significantly alter it and thus create a new work.
This applies to copies made in a new storage medium -- for instance, a tape-recording made from an original acetate disk. The same principle applies to an unaltered electronic scan of a public domain publication. This is a critical point that all comic-book scanners ought to be aware of. You can't make a scan of a comic book, let somebody else have a copy, and then declare that you ought to control the way in which that scan should be used.
The reason is that these copies are purely derivative works. The scanner does not significantly alter the underlying material. Because the scanner does not add anything new, the scanner cannot be considered a "creator," and thus he cannot claim an ownership right in the copy he made.
There is an interesting exception to this rule that no doubt is of more interest to those who restore old movies and old sound recordings. If you take a public domain work and put a significant amount of work into "restoring" it, you can claim a copyright on the restored product. But the underlying work remains in the public domain. A similar principle applies to "sampling" in musical works -- if the work being sampled is in the public domain, the underlying work remains in the public domain, but the new work can be copyrighted.
I daresay that the work done by comic-book scanners does not approach the threshhold of significance that would allow a copyright to be claimed. At most, a comic-book scanner might "touch up" his scans to eliminate visible grain in the newsprint. He might lighten the background to make the background "pure white," and he might set the black portions of the image to appear as "pure black." He might adjust color levels (as allowed in Adobe Photoshop) to present a fuller color range and offset the effect of fading. But this sort of work, in my own personal opinion, cannot be counted as a significant alteration -- the idea is simply to ensure that the copy appears properly on a computer screen. This is merely my personal opinion, mind you. This has never been tested in any court, nor do I think it ever will be. I doubt that we will ever see a court case in which somebody claims that he owns the rights to a scan of, say, Crime Does Not Pay No. 76, or some other public domain title. If somebody wanted to get really sticky about such things and went to court claiming that he was injured when somebody else posted his scan on the Web without permission, I suspect the judges would laugh him out of the room. Even if they did not the scanner would still have to prove damages if he expected to get any money out of it -- and I would think there would be no real monetary loss involved.
A "significant" alteration that would give a scanner a right to object would be more along the lines of removing the color from an old comic book, and then adding new color to it, or putting new dialogue in the balloons -- which no ordinary comic-book scanner would likely do. On the other hand, let's suppose an artist decided to take a panel from a public-domain comic book, repaint it and change the dialogue slightly -- as many artists did during the "pop art" boom of the sixties. That could be considered a new work, and the creator would own the rights.
This is a topic that has caused me to chuckle a number of times as I have perused scans of, say, old postcards on eBay. Some sellers have added the line, "Scan copyrighted by..." Sorry, they don't have that right.
At any rate, I have to say that the proprietors of this site probably did the right thing in removing the scanner's watermarked scans, not because they had any legal responsibility to do so, but because the guy was doing so much moaning and hollering about it. It sounds to me as though scans with visible watermarks aren't the sort of things that comic-book file collectors want anyway. It also strikes me that the more recent scans -- those made in the last few years -- are significantly better, generally speaking, than the ones made in the early years of home computers. The scanning equipment available to us since the year 2000 is much improved, and scanners have become more skilled in the art of scanning.
Before I sign off here, I probably ought to address a few other tangental copyright issues -- most importantly, another assertion that the scanner made in his postings, because this affects many of the materials that are posted on this site. He contends that Captain Marvel, the Marvel Family, Blackhawk and Plastic Man are owned by DC, and therefore the forties-vintage comic books are not in the public domain. Here, too, I think we see a basic misunderstanding of copyright law.
While I have not researched the copyright status of these forties comic-book titles, this is not a reasonable assumption. DC certainly owns the rights to the characters -- it obtained the rights to the Marvel Family and other Fawcett superhero characters when it settled its copyright infringement case in the early fifties. It also purchased the rights to the Quality superheroes when that company folded in 1956 -- it continued the Blackhawk title until 1967, and it revived Plastic Man several times. But ownership of the characters does not mean that DC owns the copyrights to the earlier publications. It all comes down to these questions -- were the publications properly copyrighted in the first place, did DC properly obtain the copyrights to the earlier publications, and did it bother to renew those copyrights as they came up for renewal under the pre-1976 U.S. copyright law?
Until the 1976 law took effect (in 1977), U.S. copyright law was pretty clear-cut. Copyrights lasted 27 years, and they could be renewed for another 27 years, but after that, copyrights expired, period, end of story. The 1976 law extended the copyright period for earlier works that remained under copyright -- in other words, copyrights were continued for everything that hadn't already lapsed into the public domain. Since then there have been several revisions to the law that have pushed the expiration dates so far out into the future that we will probably all be dead before new material enters the public domain. As the law stands today, everything published before 1923 is public domain, and copyrighted materials published before 1950 are public domain if the copyrights were not renewed. If copyrights weren't properly obtained in the first place, material entered the public domain immediately upon publication. As for unpublished material by creators who died before 1976 -- manuscripts and such things -- a deadline passed a few years ago for copyright registration, and if no action was taken that material also is in the public domain.
There was a court case a few years ago that sought to invalidate the delaying tactics employed in the 1976 law and those passed thereafter -- the argument was that the Founding Fathers intended that copyrights would expire after a reasonable time, and that a healthy public domain served a worthy social purpose, allowing the works of the past to inspire and invigorate the present. The leading opponents were the Disney company and the heirs of George Gershwin, the composer. Gershwin and Disney won: The Supreme Court ruled that Congress had a perfect right to extend copyrights as long as it wished.
If Disney had lost the case, it still would have owned the rights to Mickey Mouse. But the early cartoons -- the ones from the late twenties and the early thirties -- would have lapsed into the public domain. New animators might have been able to produce Mickey Mouse cartoons, without Disney's approval, as long as they were based on the Mickey Mouse character of the twenties and the thirties, which would have been out of copyright, and not on the Mickey Mouse character of the fifties, which still would have been under copyright. No wonder Disney fought so vigorously!
This is the point that is of relevance to the world of comic-book scanning. DC might have obtained the rights to the Fawcett characters, but if DC failed to obtain the copyrights to the Fawcett comic books published prior to 1950, or if it did obtain them and it failed to renew the copyrights properly when they came up for renewal, then the copyrights to the comic books of the 1940s are in the public domain. The same holds true of the Quality titles of the 1940s.
I gather that the proprietors of this website have researched the copyright status of the various comic books that are made available for download here, and I salute them for that. This is really the only way to be sure that anything published between 1923 and 1950 is in the "safe zone." But it is wrong for anyone to assert that simply because DC obtained the rights to the characters, that it also owns the copyrights to the publications prior to 1950.
As for materials published between 1950 and 1955, which appears to be the cutoff date for this site, I suppose the situation is a little murkier. But you have to realize that most comic-book publishers went bust in the mid-1950s, and for anyone to claim a copyright, they would have show that they properly obtained the copyrights from the original owners. In most cases, the copyrights probably became the property of a bankruptcy trustee, and unless the copyrights were sold during the bankruptcy proceeding, the ownership right remained with the court when the bankruptcy was discharged. I'm not sure if the court could claim ownership of the copyright -- this is a question for a lawyer. But practically speaking, nobody cares. So I think the assumption made by the proprietors of this site is correct -- if the company went out of business years ago, the copyrights probably aren't going to be claimed by anyone. Should the assumption be incorrect, and someone emerges claiming that he owns the rights to a comic book published between 1950 and 1955, well, he'd still have to prove damages in order to collect any money -- and proving damages would be a practical impossibility.
Anyway, most of this worry and fret over copyright issues is a matter of fuss and nonsense. The copyright laws haven't caught up with the realities of today, when movies and television programs that are clearly under copyright can be downloaded at a keystroke. Heck, I can even download comic books about which there is no question about the legality of the copyright. My guess is that there will be some major battles fought over this issue in the near future, but they will all be focused on propeties that have some current monetary value. It's a shame that we have to worry at all about such things -- it's my opinion that Congress was wrong, and the Supreme Court missed a chance to make things right -- but what the heck. Comic-book scanning is really something that flies under the radar, and frankly, it's something noble. By making it possible for us to scan and redistribute those crumbling comics, the Internet revolution has assured that the art form will survive.
Erik Smith
Spokane, Wash.
Author
Topic: Comic book scans and copyrights (Read 14375 times)
