The Whole Hullabaloo Over Trademarks and the Public Domain Copyright. We last reported to you on the subject in out several months research that the whole argument over Public Domain is not about the Copyright, at least not from the publishers view point. We discovered the fact most publishers back in the early days of comics were more concerned with maintaining the Trademarks than the Copyright. The reasoning behind that is that Copyright is for a limited amount of time, whereas a Trademark can perpetuate as long as the owner of said Trademark continues to use it. He who controls the Trademark controls the product more so than he who controls the Copyright. Trademark doesn’t protect original expression like Copyright does. The Trademark’s sole purpose is to identify and distinguish a product or service in the marketplace.

Back in the day, Copyright laws were different requiring far more paper work, renewals, filing fees and the like. That by itself is responsible for most of the properties which are in the Public Domain today. Public Domain works are free to use, make copies of, give away, sell or market anyway we like and know we are NOT guilty of Copyright infringement. BUT we might have a Trademark infringement problem with that work, IF it contains a companies Trademarks.

Let’s use our best known example of this: Marvel owns the Trademark name for Captain Marvel due to Fawcett Publications allowing the Trademark to expire back in the ’50’s. Marvel created their own original character and named him Captain Marvel. Even though DC Comics now claims those original Golden Age Captain Marvel characters as their own Trademarks, it is against the law for DC to use the name Captain Marvel since that is Marvel Comics Trademark. There is a fair use policy with Trademarks which should allow a Golden Age character to be named his original name in the context of the story for informational purposes. DC has done this in there Shazam titles and occasionally DC has even used the Captain Marvel name on a book’s cover in a smaller size than the book’s title. Both companies have been known to go after other companies using a name similar to anything they use for their characters. Marvel has taken others to task more than once over using the letter “X” for any part of a characters name. DC has done the same with the word “Super” and a host of other words and names. According to more than one source, DC once threatened to sue AC Comics for referring to the Golden Age version of Phantom Lady, which is in the Public Domain, by her rightful name in the story context even though DC had been doing the exact same thing with the Golden Age Captain Marvel for years. AC had to change the characters name to Nightveil because they could not afford to defend themselves in court. Every book Marvel prints carries in it a line of text which reads something like the following: “Copyright © 2010 Marvel Characters, Inc. All rights reserved. All characters featured in this issue, the distinctive likenesses thereof and related elements are trademarks of Marvel Characters, Inc.” Yet it doesn’t appear Marvel is enforcing their trademark rights over DC Comics as strictly as they do with others. They have seemed to ignore the Fair Use Doctrine with everyone except themselves. Why is that?

In recent years, it has come to light most copyrights on the stories with the Golden Age Captain Marvel characters are in the Public Domain. Anyone with the means to, can print copies of those Public Domain Captain Marvel stories and distribute them however they will as far as copyright is concerned. In order to do just that, DC registered the magic word Billy Batson uses to transform into Captain Marvel, “Shazam!”, as the Trademark to market anything related to the original Golden Age Captain Marvel. Now, anyone else could do the same thing with those Public Domain stories as well, right? According to Trademark Law, we could not. Not only does DC have a registered Trademark for “Shazam!”, they have a Common Law Trademark for Billy Batson, by the legal statement in their publications: “All characters featured in this issue, the distinctive likenesses thereof and related elements are trademarks of DC Comics, Inc.” In other words, the very images of each character in any panel in the magazine is a trademark according to modern legal standards. Most publishers since the ’90’s, have used the same line. Courts give more protection for registered trademarks as is with registered copyrights, but Common Law Trademarks are valid.

Many characters in the Public Domain have been used by different publishers. For years AC Comics were one of the most common to dip in to the Public Domain well. In more recent years, Eclipse, Image, Moonstone and the new Dynamite Entertainment have made use of some of the same characters. In 1992 AC featured a revived Golden Age Daredevil calling him Red Devil. Dynamite followed more recently in 2008 with the Death Defying ‘Devil. In 2009 Image Comics guest starred the Golden Age Daredevil in the Savage Dragon series. Regardless of what name he is given the costume remains the same. Now, if we are to take seriously the statement: “All characters featured in this issue, the distinctive likenesses thereof and related elements are trademarks of (Whoever) Publishing, Inc.” which can be found in all these publishers books as well, then, who owns the image trademark for the Golden Age Daredevil character? All of them? None of them? Has the Trademark become so diluted that it is in the Public Domain as well? The later does happen when a Trademark becomes so widely used.

More and more publishers seem to be using Public Domain characters. It could be we are headed for a showdown in the courts to straighten all this out. Back in 2003 the U.S. Supreme Court heard a case involving the Public Domain. Twentieth Century Fox produced a World War II video series in the late ’40’s which they had failed to renew the copyright on when it came up in the ’70’s. When public interest was growing concerning the 50th Anniversary of World War II, a competitor made use of the Public Domain films and when they found out, Fox sued. They could not sue for Copyright Infringement since they had allowed the Copyright to fall into Public Domain but they did try to sue for Trademark Infringement. They lost. The court’s opinion was once a work’s Copyright enters the Public Domain, Trademark Law doesn’t prevent others from using it without credit and royalties to the original author. This was a pivotal ruling where Copyright and Trademark are concerned. It is very close to what we see happening in the comic book field where some larger companies try to enforce rights over Public Domain properties as they see fit, without regard to the Fair Use Doctrine. Someone will most likely draw the line and challenge them in court. Then maybe little publishers, like AC Comics, will have the same privileges a larger company like DC, has without fear of being sued. Or else the larger will have to live with the same rules they mandate to the smaller.

Get it straight from a Trademark Lawyer! Find out much more plus download the pdf file of the above mentioned landmark U.S. Supreme Court Ruling. Public Domain Sherpa: What does a trademark have to do with the public domain?