How do I make my comics and characters Public Domain?

[JimShelley]

Without going into a lot of detail, Pierre and I have decided to make all of my Flashback Universe characters and comics public domain.
(Hopefully with the comics residing on this site as a resource for people to download in perpetuity.)


I know some people have created new characters for public domain, like Jay Piscopo's The Terrific Trio

http://pdsh.wikia.com/wiki/Terrific_Trio

Is there any disclaimer text someone can point me to for adding to the comics to do this?

[John C]

I think the "state of the art" is Creative Commons Zero, Jim.  I don't think anybody has tested the "I waive all copyright" disclaimers in court, whereas public licenses have and the Creative Commons team have been tweaking things for about ten years.

Very exciting news, by the way.  You might want to consider something more like their Attribution license, though, given the work that you and Pierre put into the world, but that's just my own inclination.

[JimShelley]

Thank you John!

[Roygbiv666]

John

Any idea how it works with a "character" that isn't protected by the copyright inherent in a story? That is, if you don't have an actual story copyright that protects a character featured in it, what 'right' would one be 'waiving' with just a character?

I think the "state of the art" is Creative Commons Zero, Jim.  I don't think anybody has tested the "I waive all copyright" disclaimers in court, whereas public licenses have and the Creative Commons team have been tweaking things for about ten years.

Very exciting news, by the way.  You might want to consider something more like their Attribution license, though, given the work that you and Pierre put into the world, but that's just my own inclination.

[John C]

I haven't found any evidence that there's a copyright on "characters" outside of a work.  People have pointed to a lawsuit where someone was denied the use of Rocky Balboa, but since he was obviously a significant part of his own movie at the time, I'm not sure that's different.  Using him would obviously be a derived work of the movie.

Any picture or (non-factual) text would be covered by copyright, of course, but if you only have a picture of and few words around a character, it wouldn't be hard to get around those copyrights with a few changes, since you can't protect the underlying ideas.  If you change the costumes, backgrounds, and what you call the powers a little, I'm not sure there's anything the author could do, just like DC doesn't have a leg to stand on when someone creates a Superman-like character as long as they don't appear in Superman-like stories.

Obviously, that's just a best guess, but the only times I've seen fights over characters as characters have been that Freedom Force video game and (decades ago) strippers.  Usually, it's about whether the costume is identical and whether the characterization is identical to what's been established.  I remember an article that tried to summarize what was known about those cases, but can't track it down.

[Roygbiv666]

Thanks. I vaguely recall finding an article online about .. I think it was superhero costumes being used by real people for work. There was a ruling to the effect that you would infringe copyright by keeping certain costume elements, but not others. I can' track it down. Basically, at minimum, you'd need to modify x elements of Wonder Woman's costume to not get sued.

I haven't found any evidence that there's a copyright on "characters" outside of a work.  People have pointed to a lawsuit where someone was denied the use of Rocky Balboa, but since he was obviously a significant part of his own movie at the time, I'm not sure that's different.  Using him would obviously be a derived work of the movie.

Any picture or (non-factual) text would be covered by copyright, of course, but if you only have a picture of and few words around a character, it wouldn't be hard to get around those copyrights with a few changes, since you can't protect the underlying ideas.  If you change the costumes, backgrounds, and what you call the powers a little, I'm not sure there's anything the author could do, just like DC doesn't have a leg to stand on when someone creates a Superman-like character as long as they don't appear in Superman-like stories.

Obviously, that's just a best guess, but the only times I've seen fights over characters as characters have been that Freedom Force video game and (decades ago) strippers.  Usually, it's about whether the costume is identical and whether the characterization is identical to what's been established.  I remember an article that tried to summarize what was known about those cases, but can't track it down.

[crashryan]

I'm not a legal expert, so God knows I won't be offering any legal advice.

That said, the appearance angle pertains to trademarks rather than copyrights. Copyrights protect specific productions--a book, a single issue of a comic--and lasts for a limited period of time (supposedly; more on that below). Trademarks protect the "look" of a product--a costume, a trade name, a logo--and seems pretty much to last forever so long as its owner actively protects it from infringement. The main test seems to be: would a person off the street, seeing your creation, mistake it for the trademarked one? If they see your superheroine, might they think she is Wonder Woman?

The only reason I know anything at all about this is because in the late 80's I pencilled some (unpublished) comics for a Mattel project. The company provided extensive model sheets and warned us to follow them carefully. It was explained to me that in He-Man's heyday the company almost lost the character to the Public Domain in an infringement lawsuit. The other side argued that everywhere he appeared (TV, boxtops, storybooks, comics, ads) He-Man looked different. He didn't have an identifiable look that could be trademarked. They almost won, but of course money trumped all and Mattel prevailed.

The hijacking and near-total destruction of copyright law by big media corporations during the last few decades has made for some very treacherous shoals. In the name of "protecting the artists" they've engineered near-eternal copyright over everything they feel like owning. Artists be damned; they just want to make sure money flows from artistic endeavors to the corporation and the corporation only, forever. That's why I worry that creators are asking for trouble if they try to make something from characters with even a remote chance of being claimed by The Majors. If you look like you might be making money they'll come calling with their cease-and-desists. If you fight, make no mistake, they'll win. Their money has bought the laws and elected the judges. But I've done this rant before, so I'll stop here.

[John C]

Thanks. I vaguely recall finding an article online about .. I think it was superhero costumes being used by real people for work. There was a ruling to the effect that you would infringe copyright by keeping certain costume elements, but not others. I can' track it down. Basically, at minimum, you'd need to modify x elements of Wonder Woman's costume to not get sued.

Ah, I think this is what I was looking for:  http://www.brittonpayne.com/Marvel/SuperStudWonderWench.htm

When the court looked at actions of the copyrighted characters, the most significant factor was the extent to which the actions served as "identifying elements,"an analysis that implicates consumer confusion and resonates in trademark rather than copyright.  The court also analyzed similarity between the skits and the original superhero works with a four-part test based on the (1) plot structure, (2) phrases, (3) costumes and (4) names.

And they also talk about enumerating the seven most prominent elements of the costumes and comparing the overwhelming majority.

That doesn't quite get to the issue of what happens when the character doesn't come from a pre-existing body of work, but that case (and the others on the site) are where I'd start.

[narfstar]

Script should easily be ok as parody. Costumes would need to be altered likewise

[John C]

Sometimes, Jim.  The courts usually require a parody to actually comment on the original work in some way to be protected speech or covered by Fair Use.  Telegram-superheroes would probably fall into the same category as the Cat in the Hat parody about the OJ Simpson trial, killed as merely derivative.  In the case of singing telegrams, the goal is to deliver the sender's message, not the person who decided on the schtick, so the odds of commenting on Superman or Wonder Woman are low for any given telegram.