“When Superman and Batman copyrights expire in a decade, will it be Kryptonite for DC?” asked for a title in Variety earlier this year. As dictated by Betteridge’s Law, the broad answer is no. But following the move of Steamboat Willie-era Mickey Mouse into the public domain earlier this year – He’s there promoting the new season of Last Week Tonight for HBO, a division of Disney rival Warner Bros. Discovery – the idea that the sky might soon begin to fall is being felt around a Hollywood that stakes its value on intellectual property portfolios.
With several of DC’s major copyrights set to be lifted in the 1930s (Superman and Lois Lane in 2034, Batman in 2035, the Joker in 2036, and Wonder Woman in 2037), the Variety article imagines a future awash in Unauthorized comic books featuring these characters. familiar names. A comic book expert predicts that “100 of them” will be “ready to go” as soon as the law allows, and the article translates that logic to the big screen, suggesting that studios may be eager to create their own versions of characters. as they have already done for public domain characters like Robin Hood or Dracula. The mind imagines a dystopian marquee advertising a given weekend’s offerings as a choice between Warner’s Superman Rising, Universal’s Tale of the Superman, and Disney’s Superman and Friends.
The most likely outcome, as some legal experts claim, will not be so disastrous for DC nor so flattening for the multiplex. The law will leave in place a handful of important safeguards to avoid a market cluttered with indistinguishable duplicates of the same icons, with the intended function specifically being to avoid consumer confusion between identical scams. In the best-case scenario, in fact, these developments could usher in an era of legally mandated creative refreshment.
“Just because Superman is entering the public domain doesn’t mean you can write your own Superman comic,” says Brian Frye, a professor at the University of Kentucky’s Rosenberg College of Law. (He’s also the producer of the documentary Our Nixon, which demonstrated common sense by sampling footage from Tricky Dick.) “That means you could being able to use the character of Superman in your own story without encroaching on anything that belongs to DC.
In theory, copyright law serves a fair and useful purpose, ensuring that artists’ work cannot be sold by another entity as their own. For the duration of the author’s life, and then for another 70 years (or, for corporate works, 95 years after publication), he or she owns the rights to his or her work; to cite perhaps the most famous example, this is why DC can’t get into the Spider-Man business. One significant difference, however, separates Amazing Fantasy #15 from the character of Spidey as he is known and loved.
“Copyright law protects things that are fixed in a tangible medium of expression, so traditionally that means a photo, a painting, a sculpture, an episode of television, a comic strip, a novel,” says Alexandra Jane Roberts, a professor of law and media at Northeastern University. “The idea of character protection flows from there, but it can be a little nebulous. We have case law which says that well-defined characters over the course of numerous works can become protectable, such as James Bond, Sherlock Holmes, Rocky. James Bond likes his drink a certain way, he dresses a certain way, he says certain lines, and from there we get a recognizable character that can be copyrighted.
Since this is a cumulative process that occurs over time, these copyrights expire piecemeal. Superman as a concept becomes available long before his weakness to kryptonite or ability to fly, Wonder Woman will be fair game a year before her Lasso of Truth, etc. Thus, each intellectual property is treated on a case-by-case basis and strewn with gray areas, the question instead becomes knowing what East allowed? And in terms of studio protocol, what will actually happen?
Any answer depends largely on the difference between a copyright (which protects a creative work) and a trademark (which protects the phrases or iconography that make up a company’s brand). A trademark does not have an expiration date, which is essentially intended to prevent companies from passing off their products as those of others. “It’s one thing to use a character in a copyrighted way, say Mickey Mouse, Superman or Wonder Woman in another story,” Frye explains. “It’s another thing entirely to use these characters in a way that communicates to consumers something about the source of what’s being produced.” The closer you get to making consumers believe that the source of everything you produce is Disney or DC, the more likely it is that you’re heading into trademark territory rather than copyright territory.
For a studio hoping to make the next big blockbuster, this poses a hurdle: Anyone trying to capitalize on Superman’s familiarity would have to eliminate much of what makes familiar to him. The law encourages using the broadest contours of an idea, its broad outlines rather than the details it contains. This can begin to create room for characters identified less by their biography than by their image. Dracula, for example, is considered a vampire with exceptional power; anything beyond that is up to the filmmakers, who translated the character through genres, settingsand even racial lines.
“People act as if later versions of Mickey Mouse included in works that are not yet in the public domain are prohibited, when I’m not 100% sure that’s what the law requires,” says Roberts.
“The way copyright law works is that you can only claim copyright ownership to the extent that what you’re claiming is original material, in a significant aspect,” Frye adds. “Are the following Mickey characters different from Steamboat Willie?” Yes. But are they that different, that you wouldn’t recognize the new one? The big differences are his color, he wears gloves and a red shirt – these aren’t really copyright-worthy elements. These are trivial things, I think. Mickey in particular is sort of one-dimensional. Wonder Woman and Superman, they have a good story, additional elements added over the years.
Frye traces a possible path forward through a case study from 1978, when Disney filed a lawsuit against the underground comics collective known as the Air Pirates. They had used Mickey Mouse for satirical purposes, corrupting the icon of wholesome American pop culture with drug use and foul language, and Disney argued that this had damaged the company’s reputation. The courts ruled that The Air Pirates had infringed Mickey Mouse’s then-active copyrights and that Disney’s trademark arguments were moot. But today, with copyright no longer an issue, this case would have fallen in favor of the Air Pirates, because they had used only Mickey’s appearance in a context that was a clear and radical departure from of the established character.
“Now, could you do something similar with Superman or Wonder Woman?” » asks Frye. “Probably! If you make them look like the old characters, or draw them your own way. What would Wonder Woman look like as a government peacekeeper in an alternate America? How about Superman as a tough-guy noir detective ?The characters we know can provide a starting point for an endless galaxy of revisions, remixes and deconstructions.
Copyright law is intended to benefit artists as well as the public, those who value their work and want to see them compensated fairly. It is intentional that these impending copyright expirations will do the most good for small independent groups, those who seek to do something radically revisionist, or even heretical, with our engraved idols. For big corporate studios, avoiding trademark infringement means putting enough distance between themselves and Superman as we know him that the commercial appeal may not be as integrated as they hoped. But creators who sincerely want to use these basic narrative elements – to transform superheroes into the modern-day mythical characters they are so often portrayed – to build something entirely new will gain new freedoms.
“The speculation is that these things will look fake or counterfeit,” Roberts says. “But what we’ve seen with Winnie-the-Pooh: Blood and Honey and Mickey Mouse is that there’s almost a hunger for it; people are curious about it. People are excited about the possibility of doing quirky things with a character they know, so I guess – and maybe hope – that studios are doing more creative things here, making more interesting choices. Change things up, less as an imitation and more as a sly wink.
Illustrations by Danielle Jones
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News Source : www.ign.com
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