I’m sad I missed it when it first went up, but did just run across Kurt Busiek’s thoughts on Superman and public domain. Namely, that he should be:
And keep in mind: when I say Superman should be in the public domain by now, I mean Batman, Captain America, Wonder Woman, Namor, the Shadow, Mandrake and others, too. All these characters should be as available to everyone as Dracula, Hercules, D’Artagnan and Dorothy Gale.
I’ve had a great time writing Superman and other DC characters, but there should come a point that Superman, like Sherlock Holmes or Tom Sawyer, can be used by anyone. And that time should have come years ago.
Let’s be clear, Busiek’s not advocating for some kind dissolution of intellectual property rights and copyright law, and neither am I. I’m a writer. I believe that writers–that artists of all stripes–should be able to make a good living off their creations. That they shouldn’t have to worry about theft of the thing by which they make that living.
I have to say, though, it’s pretty awesome to see someone who’s made good money on corporate-owned characters admit that, you know, those characters have been around long enough that it’s time to officially admit they’re part of the culture now. It’s kind of silly that lovely things like JL8 have to rely on the parody clause of fair use to exist.
Mind you, even if Superman and the other heroes finally start to trickle out for public use, the folks who want to make use of them may not have as clear a road as all that, if Busiek’s follow-up post is any indication. Here, he’s discussing Fawcett’s Captain Marvel (Shazam), and the claim that around 30+ of the original run of stories have fallen into the public domain:
If that’s true, then people would be free to use the material and concepts in those 38 issues, but not stuff from (or possibly unique to) the other 112. And of course, they wouldn’t be able to use the trademarks currently owned by DC, which is a different arena. So they couldn’t use the term SHAZAM in a title (and couldn’t use CAPTAIN MARVEL in a title because Marvel holds a trademark on that), and so on.
That anyone using public domain bits would have to navigate around bits that aren’t public domain is certainly a bit of a mess. Captain Marvel, specifically, gets even more messy when you consider that he wound up under the DC umbrella in part due to a copyright lawsuit claiming he infringed on Superman. Even without that, one imagines that if clearer IP like Superman would release on a year by year rolling basis, it could prove a sticky wicket, indeed. Negotiating one’s way into only using those concepts which were free and clear, when you’ve got the DC/Warner juggernaut policing one set of iconic characters and the Disney/Marvel giant policing the other, won’t be easy.
When Warner and Disney are both willing to fight over who gets Oz, which has been largely public domain for a while now, when a good half of Disney’s most famous IP is derived from public domain materials in the first place which they nonetheless police furiously, it’s obvious that getting elements into the public domain would only be a small first step.
The path from there clearly wouldn’t be a smooth one, as corporations would no doubt turn all their clout, both fiscal and legal, toward pushing the boundaries of what’s still “theirs,” and only those savvy or ballsy enough would be likely to enter into the territorial disputes which might develop. Still, even that’s an exciting prospect.