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 between trademark and copyright, particularly the second article, 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.
- Public Domain: What Is It and Who Lives There
- Superheroes: An Overview of Protecting Characters Under the Law a Copyright Law – Final Paper by Eric Green.
- Copyrights of Golden-Age Comics an essay by a Golden Age affectionado formerly known as Cash Gorman.
- THE PROTECTION OF FICTIONAL CHARACTERS by IVAN HOFFMAN, B.A., J.D.
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). Finally, real-life historical figures are, by definition, in public domain.
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. The changes made in 1960s, 1970s and 1990s significantly extended copyright terms for the works which were still in copyright at that point. While they will probably lapse into public domain in some point, it won't happen for quite a while. For our purposes, much of what was created in the 60s and beyond will be unusable for quite some time.
This chart offers a decent (if abbreviated) guide to figuring out which properties are in public domain and which are not.
Q: How Do I Find Out if a Character First Published in the United States 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 which applies to works published between Jan. 1, 1923- Jan. 1, 1964, 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.
If the character appeared 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 in which the work was completed. If there is no copyright notice or the notice does not fit the correct format as cited above then the work became public domain for non-compliance with the formalities of the law. 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.
Some formalities that must be complied with are the proper location in the book which under copyright law from 1923-1977 was it must be "either upon the title page or upon the first page of text of each separate number or under the title heading." Secondly, if it was hidden in the artwork it goes 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." If either of these are not followed then the work would be in the public domain even if every thing else about the notice is filled out correctly.
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: What about Quality Comics characters?
While DC bought Quality Comics, it failed to renew copyrights on most of the material published before 1950s. If the character first appeared in a public domain comic, than the character is in public domain as well. DC does own aspects of the characters that appeared in Golden Age comics they did renew. They also own the rights to their own versions of the characters created from Silver Age onward, since those are considered derivative works. They also own trademarks to the characters (see above). Contrary to what is often assumed, you don't need to change the character's name so long as it doesn't appear in the title or in any advertising.
Q: What About Fawcett Comics characters?
Similar to above. By the time DC Comics acquired Fawcett Comics assets from Ballantine Books, many comics lapsed. CBS, which owned those assets before Ballantine, did renew virtually all comics published after 1948, but it was very sporadic when it came to earlier renewals. This can make the character usage complicated, since you would have to check each title to see if any issues are copyrighted and carefully make sure you don't use anything from the copyrighted issues. In some titles, you are free and clear, but others are not nearly as clear-cut.
Add characters with caution.
Q: What About Charlton Comics characters?
The company has been in business since the late 40s. Most of the titles published between 1948 and 1964 are in public domain because they were either never renewed or never registered in the first place. A few titles published after 1964 fell into public domain because they lack proper copyright notice (see above).
Q: What about Roger Broughton buying ACG and Charlton? Doesn't he own the rights to Herbie and the other ACG Characters?
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, making those books public domain. As for Charlton, the only books he would own would be any titles published after 1964 with a proper copyright notice and were not already purchased by DC Comics.
Q: What about Archie Comics characters
For a while, it was assumed that Archie Comics renewed all of the titles it published as both MLJ Comics and Archie Comics. But closer research revealed that the company failed to renew most of the titles it published during 1940s and a few published during the 50s. A few cases are borderline - the early appearances of Katy keen, for example, are in public domain, while the later appearances are under copyright.
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 & 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."
Q: 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 actually 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.