FAQ

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, particularly the second, 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.

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).

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, but for our purposes the changes made in the early 60’s pretty much spelled the end of Public Domain comics after that. Very little printed in 1963 or after is going to enter the Public Domain in our probable lifetimes.

Q : How Do I Find Out a Character 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, 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.

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 : 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 and 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."