[Roygbiv666]

I think this is the relevent section on first appearance:

In summary, under the 1909 Act, fictional characters are copyrightable if they are
original components of larger copyrighted works with sufficiently delineated
traits and characteristics. This is true so long as the larger work is covered
under a valid copyright. Silverman v. CBS, Inc., 870 F.2d 40, 50 (1988). But what
happens when that is no longer the case? Federal copyright protection extends to a
fictional character only so long as the preexisting work containing the
character's origin is in fact copyrighted.(14) When a work containing the original
appearance of a character enters the public domain, that character is inextricably
pulled along. Silverman v. CBS, Inc., at 50. So while new copyrightable works
including the character are still being created, the character in those works is
no longer protected by a copyright once the original work enters the public
domain. Id. at 50.

Did not know that ...

But, just because a work is public domain, does not mean that anyone can use any character portrayed in the work. The 1940's Superman animated show is a great example of this; though Warner Brothers cannot deny that the cartoons are public domain, they've been able to successfully claim that they own the Superman character (though after Man of Steel, maybe that's not such a good thing). Now I am not a lawyer, but from my understanding, a character is considered public domain only if their first appearance (in legal terms, the "Source Work") is public domain. since DC has consistently maintained their copyright on Action Comics #1 (or whatever book Superman first appeared in), Superman is not public domain. I get my information from this: http://www.public.asu.edu/~dkarjala/publicdomain/Vanpelt-s99.html . Since all of the Charlton characters I am interested in first showed up in public domain material, I should be able to use them, free and clear.

[festerb4]

That quote with the reference to the Silverman v CBS case is interesting. Can you let us know what book it is from? And does it affect the trademark in the character or in the name of the character?

[narfstar]

The waters are muddy to me on trademark vs copyright of characters. The Charlton characters should all be pd. However does DC own the trademarked appearance and name of the character. Also trademark is no longer in affect after 10 years of disuse. So are characters not used by Marvel or Dc for over ten years now trademark free. The stories they contain may still be copyright but the characters available?

[guyserman82]

That quote with the reference to the Silverman v CBS case is interesting. Can you let us know what book it is from? And does it affect the trademark in the character or in the name of the character?

I got that from a law student's paper posted on the internet, which is what I linked to. I thought it was a very interesting read, and helped inform me on copyright law. If you want to read something relating to the court case itself, here's a good summary: http://www.leagle.com/decision/1989910870F2d40_2905 .

The waters are muddy to me on trademark vs copyright of characters. The Charlton characters should all be pd. However does DC own the trademarked appearance and name of the character. Also trademark is no longer in affect after 10 years of disuse. So are characters not used by Marvel or Dc for over ten years now trademark free. The stories they contain may still be copyright but the characters available?

I think we need only look at Marvel's Captain Marvel trademark to either help clear up matters or muddy the waters further. Don't know the story? Here's a good source: http://www.youtube.com/watch?v=LROCPznHLTM
Now, when Marvel started publishing Captain Marvel books, it's my understanding that no Captain Marvel material was public domain yet. Therefore, while the name was open to be trademarked again, they needed to come up with a new character to use the name. So, should you like the name of a DC/Marvel character whose trademark is free again, you'd have to come up with a whole new character to use the name.
Though, it could be that I am wrong in this assumption, and Marvel just wanted to create a character they had clear control over. In which case, I don't know.

[narfstar]

Captain Marvel is its own unique case. DC had the character while Marvel had the name.

[festerb4]

Leslie Klinger is suing the Arthur Conan Doyle estate in the U.S. over whether or not Sherlock Holmes is in the public domain. They want royalty payments on an anthology of new Sherlock Holmes stories he is editing, saying that because the last handful of stories are still under copyright, the character is not in the public domain; he argues that all the essential characteristics of Holmes were established in the early stories that are copyright-free. If it goes to trial, it might help settle the issue.

To answer a different letter, at the time Marvel created their version of Captain Marvel, in 1968, DC did not have the rights to the character, and Fawcett would still have had the copyright to all the old stories. The early DC stories in the 70s were produced under license, And DC only bought the character outright later on.

[Roygbiv666]

I think this was resolved:

http://www.npr.org/2014/01/07/260471980/sherlocks-expiring-copyright-its-public-domain-dear-watson

Leslie Klinger is suing the Arthur Conan Doyle estate in the U.S. over whether or not Sherlock Holmes is in the public domain. They want royalty payments on an anthology of new Sherlock Holmes stories he is editing, saying that because the last handful of stories are still under copyright, the character is not in the public domain; he argues that all the essential characteristics of Holmes were established in the early stories that are copyright-free. If it goes to trial, it might help settle the issue.

To answer a different letter, at the time Marvel created their version of Captain Marvel, in 1968, DC did not have the rights to the character, and Fawcett would still have had the copyright to all the old stories. The early DC stories in the 70s were produced under license, And DC only bought the character outright later on.

[festerb4]

Does anyone know if the Doyle estate followed through on their intention to appeal?

[Ed Love]

To explain what I wrote earlier, if Charleton never owned the character in the first place and the trademark was always owned by Morisi, Charleton's actions in publishing without a copyright notice would not put the character necessarily in public domain. It is similar to a pirate publishing the work without a proper copyright notice; in both cases the person omitting the copyright does not own the character.

The first several Tarzan books are public domain; the character is not.

Unless Morisi registered the copyright at the LoC himself (and there should also be a notice of a temporary transferral to Charlton for use, but not necessary from what I've seen but I did see one from Busy Arnold to Columbia Pictures for the Blackhawk serial), it is still Charlton's responsibility to afix proper copyright notice or register it themselves and THEN the contract between Morisi and Charlton would go into effect. What you have here is that NEITHER party took steps to properly secure the copyright in the first place, thus making it public domain. This is also true for the Spirit. The contract between Eisner and Arnold doesn't really matter as NEITHER party renewed the copyrights.

The first several Tarzan books are public domain due to the time period (and the ERB Estate were a bit spotty in renewing copyrights to boot). The character is public domain in limited degrees. Dynamite is not paying for their use of the ERB characters and as such are careful as to how they title their books to not infringe on the active trademarks.

[josemas]

Does anyone know if the Doyle estate followed through on their intention to appeal?

This is the latest news I have heard about it.

http://free-sherlock.com/

[bchat]

Copyrights and Trademarks are two separate things, even though in comics they usually apply to one character.  Owning a copyright to a story has no affect on the status of a trademark, just like owning a registered trademark for a character/name does impact the copyright of a story.

Marvel has copyrights for Spider-Man's stories, keeping the character from becoming public domain.  Marvel also has to separately file for Trademarks on the name, logo and select images (used for merchandising) to keep anyone else from creating a comic, movie or coffee mug using the name "Spider-Man".  Trademarks, unlike copyrights, have to be constantly used.  Last time I checked, Marvel (for example) has to file paperwork practically every five years to let everyone know that they are still actively using "Spider-Man" as a registered trademark (and pay a fee every ten years).  Otherwise, the name is considered abandoned and anyone else can swoop in and take the name.  It's this very reason why Marvel keeps producing books entitled "Captain Marvel", "Ghost Rider", "Doctor Strange" and many others every few years.

Sometimes, creators strike deals with publishers to produce a comic/story while the creator retains "ownership" of a character.  George Brenner's "The Clock" is an early example of this, as wherever he went, The Clock followed.  For lack of a better term, think of these cases as "licensing deals".  Even though the stories published may be copyrighted by companies like Quality or Charlton, the creator still owns the character, and when he ends his association with one company, he effectively ends the deal and can take the character with him to another.  The mistake that Morisi, Brenner and Eisner made was that the copyrights to those stories were not filed under their name but by the publisher, with the result being that the stories entered the public domain once the copyrights expired (which was immediately upon publication in the case of many of Charlton's books).

Again, the status of the copyrights have no affect on any trademarks, so Morisi's estate can own the trademark on "Peter Cannon: Thunderbolt", DC can own the name "Blue Beetle", Marvel can have "Captain Marvel", while Eisner's family can own the trademark for "The Spirit".  The names are off-limits for things like a comic book title even if the original stories/character designs are, in reality, public domain.

[guyserman82]

Yes, trademark and copyright are two different things. Perhaps the Morisi estate does hold a trademark for Peter Cannon Thunderbolt, and any such derivative. I thought that it was DC originally, but that's just my lack of knowledge about the publishing side of comic book history.

However, I think it's important to recognize just how much leeway trademark law gives, which is why I posted the video about the two Captain Marvels. DC is allowed to call their Captain Marvel "Captain Marvel" inside their books, though they must call their books SHAZAM! to avoid a trademark dispute (and yes, I know they are now calling Captain Marvel "Shazam"; not only is that a stupid name that completely denies the character's history, "Shazam" is the absolute worst interpretation of the character, bar none).

So, as side from my rant, what can we glean from this? So long as the characters are distinguishable, and the titles of the books dissimilar, characters are free from trademark disputes.

Also, not to beat a dead horse, Dracula has been used by dozens (if not hundreds) of creators. There are many movie adaptions of the book, most of them having something related to Dracula in the title. The character also maintains a fairly consistent visual style in all of his appearances, with slight variations. Therefore, I assume that if a character has an image that is in the public domain, creators can copy this image without fear of reprisal. Though, with comic book characters that have some books in the public domain, and some that are not, it'll probably have to be hashed out and defined just what a trademark for that character actually means.

[narfstar]

 From my reading of the trademark law any character that has not been used in ten years would be trademark free. This is why obscure characters seem to pop up at odd times. It would also ;eave all the original Dell, not GK, characters trademark free even though the stories are technically copyright. No one seems to claim those copyrights.

[guyserman82]

From my reading of the trademark law any character that has not been used in ten years would be trademark free. This is why obscure characters seem to pop up at odd times. It would also ;eave all the original Dell, not GK, characters trademark free even though the stories are technically copyright. No one seems to claim those copyrights.

I wouldn't trust that to hold up in court, though. Remember that Silverstone v CBS case summary I posted? When I posted that, I hadn't read it thoroughly, but I was reading it today and here's what I found. The case was related to a property called Amos 'n' Andy (if you remember/know what that is, congratulations I guess?). It was a radio show in the 30s and 40s that spun-off into a TV show in the 50s and 60s. It was determined that pre-1948 radio scripts were in the public domain, though post-1948 scripts and the TV show were still under CBS copyright. It seems that even though CBS hadn't used the Amos 'n' Andy characters in over 20 years (and given the change in the social climate, probably would never use them again), the judge said that their trademark was still valid. Now, I'm not sure that what I found was complete. But still, it should give creators pause when trying to use a property, even if the trademark should have expired by the time you use it.

[revry]

From my understanding, and I do not have the the actual wording, the proper notice must be at the beginning of the book fc, ifc or first page and have copyright date and to whom. First issue of of Thunderbolt simply says International Copyright secured, which is what many Charltons say. Issue 59 says International Copyright secured 1967 but it does not say to whom. I would like to see Charlton indicia run past a copyright lawyer to assure correct interpretation. I do not know why we do not have issues of Thunderbolt onsite.

Yeah, this is an old topic, but I have been doing research at the Library of Congress for a friend who wrote a wonderful series of war books for Charlton. One thing I noticed, while looking at the books, was that for many years, Charlton would print a huge number of comic book inside covers with advertisements that were meant to go in ALL their books, and the useless, non-specified "International Copyright Secured" line. Then they would print the front covers and staple them to the appropriate books. Those titles are absolutely public domain, because they never had proper notice, and they were notorious for not registering anything (go search in the pre-1977 card catalogs at the LOC for any Charlton title and see what I mean.

[Chimalpahin]

Okay so this is an old thread but I was reminded of this quagmire when I saw Dynamite Comics had relaunched Peter Cannon again, another Watchmen response. Morisi is no longer credited as the creator like he was before, the first Dynamite publication makes the case that we've heard of him making a special deal yet I don't see any estate information on the book unless he sold what he claims he has to Dynamite.

Then I saw this. So apparently someone is selling a big collection of reprints, cheap online scans a la Project Gutenberg copy & paste jobs. So someone must think they're fine with just selling reprints. No mention of Dynamite or the Morisi Estate

https://www.amazon.com/Peter-Cannon-Thunderbolt-Complete-Peacemaker/dp/1532722656

[The Australian Panther]

If nothing else, this implies that AMAZON doesn't make much effort to check whether what they advertise for sale holds a legal copyright in the first place. Likely, they make that the sellers responsibility. There is more than one person or persons out there who thing that repackaging PD material ( particularly comic books) is a good way to make money. Some do a professional job of it (like Craig Yoe) many don't. This individual didn't do much checking about copyright. Problem is,. if you own a copyright, its up to you to find the money and the expertise to fight for your rights. Nobody is going to help you. An Aside. Interesting to see two movies coming out within a few weeks of each other with links to the name CAPTAIN MARVEL. DC seem to have resigned themselves to calling their character SHAZAM. (Should he have to explain his name every time he introduces himself?) The SHAZAM movie I'll probably go to see. Marvel's Captain Marvel I will give a miss. It will come up on TV anyway, sooner rather than later.             

[Chimalpahin]

Yeah that's probably true, Gwandaland also sells public domain comics, including Peter Cannon but even they've rescinded certain editions due to individual issues being suspect. Well I guess they'll keep selling them until whoever owns or thinks they own Peter Cannon finds out.

Yeah I think the Shazam rebrand was done in 2011 or so. He was still being called Captain Marvel in the first two seasons of Young Justice.

[positronic1]

Yeah I think the Shazam rebrand was done in 2011 or so. He was still being called Captain Marvel in the first two seasons of Young Justice.

True. The re-naming of Captain Marvel as "Shazam" took place in a series of backup stories written by Geoff Johns that ran in early issues of the rebooted New 52 Justice League title. The logical question to ask would be "How can he be called Shazam if there's already a character named Shazam (the old wizard) in the story?" That's where they used the rebooted DC universe to change the backstory of the old wizard and the Rock of Eternity so that there's no "shade" of the old wizard hanging around to give Billy advice. There's just the magic word Shazam, which is also the name of Billy's alter ego now (so he's got the same issues with saying his own name as Captain Marvel Junior used to have). And he's complete with a whole Shazam family of foster kids (including Mary and Freddy) who share the same magic word and power. Apart from those similarities it has pretty little to do with the original concept.

[paw broon]

I just occurred to me reading this section that I'm in an issue of P.C. Thunderbolt, the DC version.  I think Mike Collins pencilled a van in the streets of Glasgow with the name, "Monty's" on the side. He also had my business partner at the time, the late Pete Root, featured in a panel. I could waste a lot of time trying to find the issue.  It's somewhere, just don't have a scooby exactly where.

[John Kerry]

I looked up Freddy Freeman on Wikipedia recently as there is a Freddie Freeman who plays baseball for the Atlanta Braves. The character Shazam is actually Captain Marvel, Jr. who has replaced Billy Batson as Billy has replaced the wizard.The reason for the name change is that Captain Marvel is the magic word that transforms Freddy into his superhero self and back again. So he couldn't refer to himself without effecting the change.