Monday, September 20, 2010

Can Public Domain Comics Be Stopped by Cease And Desist Orders?

Today's post is going to be a short one as I'm going to Microsoft tomorrow, and I need to finish some mockups.

The one thing I do want to bring to everyone's attention is this article over at wherein Rich Johnston wonders if the Digital Comics Museum will be targeted for a cease and desist order like htmlComics was.

I don't normally mention Digital Comic Museum here because I don't know much about it. It is apparently some sort of offshoot or splinter group of users from my favorite site The Golden Age of Comics - but that's all I really know. In many ways the sites look like exact duplicates of each. Feel free to explain the differences and origins in a email or comment.

I find the article amusing as Rich says this in regards to public domain comics...
Okay, I think their public domainness is questionable, especially considering some use current existing trademarks such as Ghost Rider and Daredevil, but by sticking to the past, they may just get away with it and provide a valuable resource to the comics community.

I think we can all agree that the comics in question are in public domain, so I believe the issue Rich is really trying to raise is whether or not Marvel (or DC) might try to use trademark infringement to have comics featuring their characters taken down. Legally, I don't think Marvel or DC would have a leg to stand on. One, because the Lev Gleason Daredevil doesn't look anything like the Marvel Daredevil and two, I don't think most lawyers have a clue how Public Domain law works, so they shy away from it.

I say this because at last count, I have seen at least 5 different media companies selling the old Fleischer Superman which are in Public Domain. Why hasn't Time Warner stopped these from being sold?

I also wonder how much weight could be made for the arguement that public domain comics infringe on current Trademarks. Examine the DVD cover I pulled from Amazon. Where is Time Warner or DC notated anywhere on the cover? I'll grant you that the word Superman is trademarked, but I don't recall ever seeing it notated as trademarked on the cover of any of the Fleischer collections I've seen.

So bottom line - I don't think that either Golden Age Comics or Digital Comics Museum have much to worry about. Yeah, they *might* get a cease and desist letter, but anybody can send such a letter. Backing it up in court and convincing a judge is a different matter.

And with that, I present today's two Free Comics - two issues of a comic I've never featured on Flashback Universe before, but in light of today's topic, it seems appropriate: Fawcett's Marvel Family Comics.

[ Marvel Family 50 ]

[ Marvel Family 61 ]
- Jim


Trey said...

I actually would disagree that we can be certain those comics are in the public domain.

The only works we can be certain about are those published before 1922--and none of those fit the bill.

For works first published in the U.S. after that date and before 1964, copyright had to be renewed--and sometimes more than once. Now, its quite likely most of those works didn't get renewed at the appropriate times, but its an open question unless you've done a search of copyright records.

Jim Shelley said...

Good point Trey - Cash Gorman (and others at the Golden Age Comics site) have spent about 15 years doing that very research:

Britt Reid said...

"...copyright had to be renewed--and sometimes more than once..."

Pre-1976, copyright could only be renewed once for a total of 56 years.
After that, it was PD. Period.

The key to these claims is that the claimant has to show proof both of copyright renewal and of transfer of ownership from the previous owner (if the claimant isn't the original owner).

Trademarks are a different matter.
That's why Dynamite is using "Death-Defying 'Devil" and Image is using Dynamic DareDevil" for their versions of the Golden Age character.

The obvious example here is "Captain Marvel"
Although DC's (Fawcett's) came first, the trademark lapsed after they stopped publishing in 1953-54, and other publishers tried the name with different characters.
The MF Comics android who yelled "Split" lasted only a year, then, as soon as that trademark lapsed, Marvel introed Kree starfleet Captain Mar-Vell, and has maintained the trademark since with several characters.
That's why DC's version is called SHAZAM! in licensing, and his books have SHAZAM! in the title, but not his name, yet he's called "Captain Marvel" within the stories!

Trey said...

He's done some good work. Reviewing the claims of what he says are the limits of his work might be instructive, then.

Trey said...

@Britt - Wrong--or rather right if the law hadn't changed twice since. Your forgetting that the law changed. For works that the 56 years would have expired before January 1, 1978 an extension was given to 67 years total by canges in the law. However, for works copyrighted prior to January 1, 1964, the copyright still must have been renewed in the 28th calendar year to receive the 67-year period of added protection.

A work first published in 1925 and renewed in 1953 will expire on December 31, 2020.

Most of these comics are before those dates.

cash_gorman said...

And since I did that page, research at one of the sources indicate that the pre-Archie comics of MLJ were not renewed meaning that most of the MLJ heroes and stories are public domain (so DC could have done their own take on the Hangman and Inferno with little problem as Archie hasn't done anything with them to keep the majority of the trademarks alive).

It does show that that the writer of the original article hasn't done a minimum of research though. The only thing that could bring the two sites down is if someone shows up with a legitimate copyright claim to the majority of the books which at this point would almost have to be DC proving that they do own the copyrights to many of the Nedor and Fawcett books whose copyrights have gone through some rather byzantine company splits and sell-offs and have not stepped up to defend bigger publishers such as Dynamite, Adventure House and now Moonstone from making use of their properties for profit.

Unlike the other site, both of these do stay away from those known not to be public domain such as Street & Smith, the licensed titles by Dell, Green Hornet by Holyoke in addition to the obvious National, Leading, and Timely.

Britt Reid said...

"...both of these do stay away from those known not to be public domain such as Street & Smith, the licensed titles by Dell, Green Hornet by Holyoke in addition to the obvious National, Leading, and Timely."

Any "licensed" Golden Age titles still had to have their copyrights renewed at the 28-year point, otherwise the same law that caused the licensed Paramount/Fleisher/Famous Superman cartoons to become PD would happen.
That's assuming they were copyrighted in the first place!
(Quite a few comics were never even copyrighted.)

Street and Smith (and later, Conde Nast) seem to have done their homework.

Frank Temerson's Holyoke went out of business by the late 1940s, and by the time the Harvey Green Hornet titles came up for renewal (1968 through 1975) the Green Hornet property was all but dormant, except for a few record albums, and Harvey Comics itself was doing only kiddie titles, and wasn't concerned with their 1940s material (original or licensed).

The Copyright Act of 1976 (and later acts) only applys to unexpired copyrights as of the date of the passage of the Acts.

cash_gorman said...

Research seems to bear out that you only had to register if you applied for renewing or pursued a lawsuit for damages. Otherwise, you could just follow the proper copyright notations on the book and be afforded some protection during the initial term.

True about the licensed comics, they still had to follow the renewal laws as the others. Some did such as the Burroughs estate with some of the strips reprinted by Dell. Others didn't. Of course many of those early licensed characters were actual newspaper strip reprints so you'd actually have two sets of copyrights to worry about, the original strips and the reprint. Especially if you are planning on any derivative work featuring the likes of Don Winslow, Miss Fury, Wash Tubbs, etc.

Britt Reid said...

"...Research seems to bear out that you only had to register if you applied for renewing or pursued a lawsuit for damages. Otherwise, you could just follow the proper copyright notations on the book and be afforded some protection during the initial term."

Pre-1976, you had to send two copies of the book/periodical/film along with the paperwork to the Library of Congress.
Otherwise, you couldn't renew at the 28 year point becuase you weren't actually "registered".


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