FAQ

Public Domain Superheroes FAQ

What Is the Public Domain?[]

This is a legal issue so, can be confusing. These two articles (particularly the second) may be useful in clarifying the differences between trademark and copyright:

The standard for trademark infringement is called "confusingly similar." The standard for copyright infringement is called "substantially similar."

In regards to cartoon and/or comic book/strip characters, visual representation must also be taken into account.

To complicate matters further, some "public domain" works may actually be "orphan works".

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 they debuted in.

The Copyright laws in the United States have changed several times over the past century. The changes made in the 1960s, 1970s, and 1990s significantly extended copyright terms for the works which were still in copyright at that point.

How Do I Find Out if a Character First Published in the United States is in the Public Domain?[]

While we are not lawyers, this chart offers a decent (if abbreviated) guide to figuring out which properties have entered the public domain and which have not (yet).

Having said that, the first step to finding out if a work is in the public domain in the United States is to know when it was first published. As stated, copyright laws have changed over time so the next step is to look at the Digital Copyright Slider to know which conditions must be met for a work to be in the public domain.

If it is a matter of renewal (which applies to works published between Jan. 1, 1929- Jan. 1, 1964), check The First Copyright Renewals for Periodicals List for works that came up for renewal before 1977 and the Copyright Office Records for those renewed after. If the publication does not appear in either search, it is most likely in the public domain (however, this info is based off publicly available records and NOT legal advice).

An additional resource is :

https://archive.org/details/copyrightrecords

Which has US copyright records by year.

If the character debuted in a publication between 1964-1977, then you need to find a copy of the publication and check for a proper copyright notice. A proper copyright notice consists of a word/abbreviation/symbol designating copyright such as (copyright, cprt, or ©), the name of the copyright holder, and the year the work was published. If there is no copyright notice or the notice does not fit the correct format as cited above, then the work instantly entered the public domain upon release. An example of this would be frequent use of "International Copyright Secured," which is an incorrect notice and statement as there is no such thing as international copyright law.

Noting the location of the notice is also very important as it was required to be "either upon the title page or upon the first page of text of each separate number or under the title heading." Thus, if it were hidden in the artwork, it went against this: "The notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination." Again: if either of these were not followed, the work entered the public domain immediately.

Trademark and Questionable Status?[]

Again: the standard for trademark infringement is called "confusingly similar."

Trademarks can be troublesome, as many trademarked names are the same names as public domain characters but, per the law, the intention of a trademark 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 use the name "Thor" on the cover (or the aforementioned "Daredevil"), you are infringing on Marvel's trademark because a consumer could become confused prior to purchasing your comic, believing they are taking home a work featuring Marvel's versions.

“Questionable” characters are just that: they’re claimed by somebody, but MAYBE that claim isn’t valid. Per the laws, Fawcett's Captain Marvel IS in the public domain but, DC is huge and you are tiny. Proceed at your own risk (and see next point).

Doesn't DC Comics own all of the Charlton, Quality, and Fawcett's comic characters?[]

No. While DC comics bought all three of these companies, the majority of their comics were not renewed or had improper copyright notices. For example, Whiz Comics #2 was not renewed meaning all of the characters that first appeared in this issue are in the public domain such as Golden Arrow, Spy Smasher, Ibis the Invincible, and even Captain Marvel.

However, first thing to know is DC DOES own the rights to books where the copyrights were renewed such as Marvel Family #1, meaning DC owns the copyright to Black Adam (whose first appearance is in that issue). Second, DC also owns the rights to their versions of the Charlton, Quality, and Fawcett characters because they are derivative works. Finally, even if DC doesn't own a character, they probably own the trademark to any of the prominent character's names such as Blue Beetle, Plastic Man, etc. This doesn't mean you can't use the character, though, it just means you need to call them by a different name or only use the name in the interior pages of the book so as to avoid anyone confusing your version of the character for DC's.

What about Roger Broughton buying ACG and Charlton or Max Collins buying Johnny Dynamite from Charlton?[]

Roger Broughton was a comics publisher who, in 1986, not only purchased the rights to the remaining Charlton Comics properties not bought by DC but, also the ACG materials. However, while Brougton bought the rights to the material, the only comics from ACG he owns are the books published after 1964 since all pre-1964 books were not renewed 28 years after publication. As for Charlton, the only works he owns are any titles published after 1964 with a proper copyright notice (that weren't already bought by DC).

Max Collins, like Broughton and DC, attempted to buy intellectual property from Charlton in the 1980s. Collins bought the character Johnny Dynamite in 1987 and produced new stories featuring him in both 1994 and 2003. However, Johnny Dynamite's first appearance in Dynamite #3 (and subsequent appearances in issues #4-9, as well as Johnny Dynamite #10-12 and Foreign Intrigues #14-15) were not renewed 28 years after publication. Thus, Collins only owns the new material he has produced.

What about MLJ and Archie characters?[]

Yes, MLJ, the company that would later become Archie, did not renew many of their books including all of the ones featuring their superheroes the Shield, the Wizard, the Black Hood, and Steel Sterling. For example, Pep Comics was not renewed until issue 72 and books such as Blue Ribbon and Zip Comics were never renewed at all.

Are the T.H.U.N.D.E.R. Agents and other Tower comics characters really in the public domain?[]

Yes, Tower Comics never registered its titles with the US copyright office, nor did they include proper copyright notices. As for T.H.U.N.D.E.R. Agents, the copyright notice on the first issue was not in the proper location of the book which, as previously stated, under copyright law at the time of its publication, had to be "either upon the title page or upon the first page of text of each separate number or under the title heading." Secondly, it was hidden in the artwork, which goes against the part of the law that stipulates that the "notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination." According to US copyright law, all works published between 1923-1977 that did not comply with copyright law became public domain upon publication. So, because the first issue had an incorrect notice, the characters fell into the public domain.

However, the above only applies to the Tower Comics versions of the characters. All subsequent versions published by DC Comics, JC Comics, Deluxe Comics, etc. are NOT. Also: the T.H.U.N.D.E.R. Agents are currently trademarked by John Carbonaro's estate (Carbonaro himself died in Febuaury 25, 2009). As far as using them, see our disclaimer about disputed characters - the Carborano estate continues to assert its copyright over the Tower Comics version of T.H.U.N.D.E.R Agents so, anyone who uses them should be prepared to deal with their lawyers.

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 & Doodle! Use their images in advertising, on posters, for greeting cards, etc! 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!

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/story but, modified it somehow: it’s derivative.

Open Source Characters?[]

Some of the characters featured on the site are referred to as "open source" characters. These are more recent creations the creators have decided to allow anyone to use as they see fit. Jenny Everywhere is the first of these. While each story these characters appear in is copyrighted to its creators, the characters themselves are uncopyrightable. Normally, this is stipulated by including this paragraph:

"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."

All new open source characters must first be published here and, after being reviewed by the team of admins to determine whether it meets the standards required to be posted here, one of them will move the page.

What About Old Time Radio?[]

The majority of Old Time Radio (OTR) shows are believed to be in the public domain. However, copyright law for OTR varies from state to state. Many, many characters originated in OTR programs. However, we are going to avoid using OTR as a basis, since that falls into questionable status.

What About Orphan Works?[]

"Orphan works" are works that are/may still be protected by copyright but, which no copyright owner remains in existence or is known to exist.

Thus, any use of an orphaned work outside of what is permitted under lawful fair use is potentially a violation of copyright so: use at your own risk.

Adding an orphan work character to the wikia must first be approved in advance.

What About Characters Originally Published by Nedor/Standard/Pines?[]

Some Nedor comics were renewed by Popular Library, which was eventually bought out by Fawcett Books. When Fawcett went out of business, Popular Library was sold to Warner Bros. A number of different publishers, however, are currently/have been using these characters without any lawsuits from Warner Bros., so any action over them is (probably) unlikely. They are still, however, "use at your own risk" characters.

For a list of issues that were renewed, please see here.

What about AI Generated Characters?[]

No AI generated characters should be added to this wiki.

While it is true that a federal court ruled on August 18, 2023 that AI-generated artwork cannot be copyrighted on the grounds that copyright law only extends to human being, the focus of this wiki is to catalog public domain characters created by human authors only so please do not add any AI generated characters to this site.

What about Sound Recordings?[]

On October 11, 2018, Congress passed the Music Modernization Act which extended federal copyright protection to recordings created before 1972. Not only do the provisions of the act create new federal protection for older recordings, but they also specify clear expiration dates for this coverage.

Copyright duration for sound recordings produced with a proper copyright notice:

For recordings first published before 1923, the copyright term ended on December 31, 2021.
Recordings first published between 1923-1946 are protected for 100 years.
Recordings first published between 1947-1956 are protected for 110 years.
For all remaining recordings first made prior to February 15, 1972, protection shall end on February 15, 2067.
Recorded after February 15, 1972, 95 years from publication or 120 years from recording date, whichever is shorter.

What about Fables Series Being Released into the Public Domain?[]

Until 2023, Willingham was the sole owner of the IP rights to Fables. In September, Willingham announced that he had allowed the Fables IP to enter the public domain after growing disenchanted with DC Comics. Willingham cited his frustration with DC, stating that for years the company fought him on royalties, media rights, and various other issues. In his announcement, Willingham wrote: "If I understand the law correctly...you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it's your property". The decision does not affect any Fables works already in print, which Willingham will continue to collect royalties on.

DC denied Willingham's assertion that the franchise is public domain, stating that they continue to own the rights to the storylines, characters, and elements in the comics and that it will take all actions to protect its intellectual property rights. They released the following statement:

"The Fables comic books and graphic novels published by DC, and the storylines, characters, and elements therein, are owned by DC and protected under the copyright laws of the United States and throughout the world in accordance with applicable law and are not in the public domain," the statement reads. "DC reserves all rights and will take such action as DC deems necessary or appropriate to protect its intellectual property rights."

Fables was created by mostly using characters and stories already in the public domain so the original versions that they based on are allowed to be added to the wiki and can be found in the category Fables Characters.

Any original characters or new details added to existing characters created for the Fables series are NOT allowed to be added here at this time.

What about works of the United States government?[]

A work of the United States government is defined by the United States copyright law, as "a work prepared by an officer or employee of the United States Government as part of that person's official duties". Under section 105 of the Copyright Act of 1976, such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

This act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries.

Publication of an otherwise protected work by the U.S. government does not put that work in the public domain. For example, government publications may include works copyrighted by a contractor or grantee; copyrighted material assigned to the U.S. Government; or copyrighted information from other sources. Further, the copyright status of works by subnational governments of the United States is governed by its own set of laws.

Works by certain independent agencies, corporations and federal subsidiaries may not be considered "government works" and may, therefore, be copyrightable. For instance, material produced by the United States Postal Service are typically subject to normal copyright. Most USPS materials, artwork, and design and all postage stamps as of January 1, 1978, or after are subject to copyright laws. Works of the former United States Post Office Department are in the public domain (due to its former position as a cabinet department).

Certain works, particularly logos and emblems of government agencies, while not copyrightable, are still protected by other laws that are similar in effect to trademark laws. Such laws are intended to protect indicators of source or quality. For example, some uses of the Central Intelligence Agency logo, name, and initialism are regulated under the CIA Act of 1949 (50 U.S.C. § 403m).

Some other examples would be Smokey Bear's name and image are protected by the Smokey Bear Act of 1952 (16 U.S.C. 580 (p-2); previously also 18 U.S.C. 711) and Woodsy Owl's name, character, and mottos are protected symbols under Public Law 93-318 as property of the United States, to be managed by the secretary of Agriculture.

You can learn more about the copyright status of works by the US government here.

What about Real Life People such as Historical Figures or Celebrities?[]

While real-life historical figures are, by definition, in the public domain there are complications in using certain famous people from the modern era due to the right of publicity which can be referred to as publicity rights or even personality rights. This can effect both living and deceased individuals with some notable examples being Elvis Presley, Marilyn Monroe, Albert Einstein, Martin Luther King Jr., and more all having their likeness controlled by their estate or a corporate entity.

The right of publicity is defined as the right of all individuals to control commercial use of their names, images, likenesses, or other identifying aspects of identity. In certain contexts, the right of publicity is limited (under U.S. law) by the First Amendment. The right of publicity can be referred to as publicity rights or even personality rights. The term "right of publicity" was coined by Judge Jerome Frank in 1953.

In the United States, the right of publicity is based on state-level law, as opposed to federal, and recognition of the right can vary from state to state.

The Celebrities Rights Act was passed in California in 1985 and it extended the personality rights for a celebrity to 70 years after their death. Indiana has one of the stronger right of publicity statutes in the U.S., providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness", but also signature, photograph, gestures, distinctive appearances, and mannerisms. Notably, Oklahoma also provides 100 years of protection after death, and Tennessee's statute provides rights that do not ever expire if use is continuous.

Here are some examples of lawsuits regarding these issues:

In October 1990, actor Crispin Glover filed a lawsuit against Universal Studios for both the unauthorized use of his likeness and the use of footage of him from Back to the Future in Back to the Future Part II; his permission had not been sought for the latter and he received no payment. After a motion to dismiss was denied, the case was settled for an undisclosed amount. The Screen Actors Guild changed its rules to prohibit its members from unauthorized mimicking of other SAG members.
In September 2002, Tom Cruise and Nicole Kidman sued luxury cosmetics company Sephora for allegedly using a picture of them without permission in a brochure promoting perfumes.
In March 2003, eight members of the cast of The Sopranos alleged that electronics retailer Best Buy used their images in newspaper ads without permission.
In the July 2003 case of ETW Corp. v. Jireh Publishing ruled that a painting of the golfer Tiger Woods and others is protected by the US Constitution's First Amendment and treads neither on the golfer's trademarks nor publicity rights. Similarly in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a depiction of blues music duo the Winter brothers in a comic book as worms called the Autumn Brothers obtained First Amendment protection from publicity rights suit. In May 2005, Toney v. Oreal USA Inc. clarified the distinction between the purview of copyright versus the nature of publicity rights.
The 2006 New York County Supreme Court case Nussenzweig v. DiCorcia, after dismissing the complaint on statute of limitations grounds, held in the alternative that personality rights are limited by First Amendment rights of artistic freedom of expression. The decision was affirmed on appeal by the Appellate Division and the Court of Appeals, but those courts only addressed the statute of limitations holding, not the First Amendment holding.
In 2008, a federal judge in California ruled that Marilyn Monroe's right of publicity were not protectable in California. The court reasoned that even though Monroe died in California, she was legally domiciled in New York at the time of her death, and New York does not protect a celebrity's deceased right of publicity and that her right of publicity ended upon her death.
In the 2009 case of James "Jim" Brown v. Electronic Arts, Inc., the District Court of the Central District of California dismissed athlete Jim Brown's theory of false endorsement under the Lanham Act and determined that the First Amendment protects the unauthorized use of a trademark in an artistic work when the mark has artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found a lack of implied endorsement and held that the First Amendment protected Electronic Arts in its use of a virtual football player that resembled Mr. Brown.
In 2019, Emily Ratajkowski was sued by photographer Robert O'Neil for copyright infringement when she posted a paparazzi picture taken by O'Neil depicting Ratajkowski outside of a flower shop in Manhattan. The picture showed Ratajkowski with a bouquet of flowers covering her face, and Ratajkowski added the caption, "mood forever," when she posted the image to her Instagram story. The parties ultimately settled the copyright claim out of court, but the dispute raised right of publicity concerns given the use of Ratajkowski's portrait and picture under the New York right of publicity statute. However, courts have historically found licensing or publishing these images as non-commercial uses, complicating the right of publicity argument. Emily Ratajkowski now faces a similar copyright infringement suit for posting another photographer's paparazzi picture of her to her Instagram account.
On April 29, 2020, the NCAA Board of Governors supported proposed rules for college athletes expected to take effect in 2021. The rules would allow athletes to be paid for use of their name, image and likeness (NIL) in endorsements and appearances.

You can read more about personality rights here and the Celebrities Rights Act here.

Due to the complicated legal nature this situation, please do not add any real-life people from the 20th or 21st centuries without consulting an admin for permission.