Bill Willingham Says Fables Is Released To The Public Domain, DC Comics Says It Most Certainly Is Not
from the to-public-domain-or-not dept
I don’t think I’ve ever had a story sent in to me more than Bill Willingham’s Substack/press release announcing that he was putting the Fables comic book property into the public domain, as part of a dispute he’s having with DC Comics.
As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.
If you know Techdirt, you know that we’ve always encouraged people to put works into the public domain (and to use the public domain). Every year we run a public domain game jam. We’ve long noted that anything of our own that we publish on Techdirt should be considered in the public domain, and you are free to do with it what you will. The reports we’ve published are generally in the public domain as well. When I published two short sci-fi stories in our larger collection of sci-fi stories about the future of work, I put them into the public domain as well (a few other stories in that collection are also public domain).
Willingham’s reasons for doing so are a bit more complex than ours, but he admits that he’s become disillusioned by our copyright and trademark laws recently, recognizing (as we’ve long pointed out), that they seem mostly designed to empower gatekeepers in ways that harm the creators themselves, rather than help them. From that he even has his own idea on how copyright should be reformed:
In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.
In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.
And thus, he decided to practice what he’s preaching:
Of course, if I’m going to believe such radical ideas, what kind of hypocrite would I be if I didn’t practice them? Fables has been my baby for about twenty years now. It’s time to let it go. This is my first test of this process. If it works, and I see no legal reason why it won’t, look for other properties to follow in the future. Since DC, or any other corporate entity, doesn’t actually own the property, they don’t get a say in this decision.
There’s also the… being mad at DC thing. He notes that when he originally signed his deal with DC, the company was good to work with, and whenever any problems arose, they were able to work things out. However, as Willingham puts it DC has “fallen into bad hands.” It seems that a part of that is Warner Bros. Discovery, which now owns DC. There have long been concerns that Warner Bros. Discovery is basically destroying what’s left of DC (while trying to wring extra cash out of it).
Elsewhere, Willingham noted that he had turned in scripts for Fables two years ago, and DC has basically dropped the ball on the property, so he’s freeing it for everyone else to use.
And… here’s where it gets complicated. Lots of people asked if he can actually do that, and the likely answer is that… we really don’t know. It may depend very much on the specific contracts Willingham has with DC Comics. It is possible that he signed a contract in which he retains the copyrights and trademarks. He certainly claims as much in his announcement:
The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.
A few people have pointed to the notice on Fables indicating the copyright is jointly owned by both and that the trademark is owned by Willingham:
But… if you go digging into the copyright registration database… well… it’s messy. There are a bunch of registrations for Fables, though as I flip through them, many suggest that he assigned the copyright to DC. If that’s true, then… he doesn’t actually have the copyrights to free and his claim that he’s the sole owner of the IP is incorrect.
However, other registrations do list them as co-owners of the copyright, including what I believe is the original copyright registration for the original Fables series:
And… if that’s the case, then there’s potentially more legitimacy to Willingham’s decision. When there’s a jointly created work with multiple authors holding the copyright, each author is able to license out the work to others without gaining permission from the other authors. They just need to let the co-copyright owners know about it.
So… this is… messy. DC, for it’s part, says no fucking way does Willingham have the right to do this:
The Fables comic books and graphic novels published by DC, and the storylines, characters, and elements therein, are owned by DC and protected under the copyright laws of the United States and throughout the world in accordance with applicable law and are not in the public domain. DC reserves all rights and will take such action as DC deems necessary or appropriate to protect its intellectual property rights.
Which means, we’re likely to see some sort of legal fight. Well, that is if anyone actually takes Willingham up on the offer. Because of DC’s posturing here, it will likely scare off some from going forward with things.
Willingham notes that he told DC that he was going to do this, and also tried to get them to write clearer contracts (which suggests that the existing contracts are about as messy as many such contracts tend to be):
I gave them an opportunity to renegotiate the contracts from the ground up, putting everything in unambiguous language, and they ignored that offer. I gave them the opportunity, twice, to simply tear up our contracts, and we each go our separate ways, and they ignored those offers. I tried to go over their heads, to deal directly with their new corporate masters, and maybe find someone willing to deal in good faith, and they blocked all attempts to do so. (Try getting any officer of DC Comics to identify who they report to up the company ladder. I dare you.) In any case, without giving them details, I warned them months in advance that this moment was coming. I told them what I was about to do would be “both legal and ethical.” Now it’s happened.
I hope it is true that he has the rights, and that this is legitimate, because we need more works in the public domain.
For what it’s worth, Willingham also notes that he’s still bound by his contracts with DC that if he creates more Fables works, they have to go through DC, but since none of the rest of us are bound by that contract, we can do whatever we want. But, as he notes (entirely correctly!) copyright law is a fucking mess, and you’ll find copyright lawyers who will argue all sides of this:
Note that my contracts with DC Comics are still in force. I did nothing to break them, and cannot unilaterally end them. I still can’t publish Fables comics through anyone but them. I still can’t authorize a Fables movie through anyone but them. Nor can I license Fables toys nor lunchboxes, nor anything else. And they still have to pay me for the books they publish. And I’m not giving up on the other money they owe. One way or another, I intend to get my 50% of the money they’ve owed me for years for the Telltale Game and other things.
However, you, the new 100% owner of Fables never signed such agreements. For better or worse, DC and I are still locked together in this unhappy marriage, perhaps for all time.
But you aren’t.
If I understand the law correctly (and be advised that copyright law is a mess; purposely vague and murky, and no two lawyers – not even those specializing in copyright and trademark law – agree on anything), you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it’s your property.
I hope that is the case, but DC is making it clear that if anyone takes him up on that offer, they’re likely to take legal action, which might just (unfortunately) be enough to make sure that no one even tries.
But, without seeing the details of the contracts (and even if we had them, that wouldn’t mean any of this would necessarily be any clearer), it’s very difficult to tell who is really correct here. It’s even possible that some characters/plots/etc. are public domain, and some are not. Without the contracts, it just becomes a big ¯\_(ツ)_/¯.
Anyway, I’d be remiss if I didn’t at least mention that Fables itself is based on taking public domain characters from old fairy tales and folklore, and building storylines around them in modern day New York. It seems only fitting that they should be released to the public domain for others…
Filed Under: bill willingham, copyright, fables, public domain
Companies: dc comics, warner bros. discovery
Comments on “Bill Willingham Says Fables Is Released To The Public Domain, DC Comics Says It Most Certainly Is Not”
I found Corey Doctorow’s take edifying on the matter.. which is to say, as pointed out in this article, clear as mud..
https://pluralistic.net/2023/09/15/fairy-use-tales/#sampling-license
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Cory’s not helping clarity by claiming upfront that it’s an “author-owned comic series”, and then continuing to describe all the ways it’s maybe not author-owned.
Even under the asinine leadership of David Zaslav (an enemy of arts and culture if there ever was one), if DC takes legal action to clear this up, DC will win—of that, I have little doubt.
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As they say in all rigged games, the house always win.
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It’s rigged in the sense that most people do not have the resources to outwait THE HOUSE.
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if DC takes legal action to clear this up, DC will win—of that, I have little doubt.
Except that by using the public domain for the time being, Willingham is legalizing the use of Fables by theoretically the ENTIRE HUMAN RACE. A Zerg Rush of innocent people using the characters for their own purposes will almost certainly overwhelm any censorship that DC tries.
Re: If DC won litigation...
…it would serve to remind the rest of us that the victim of piracy is not the creators (e.g. Bill Willingham) but the publishing houses that control (you guessed it) the means of production.
And if big companies can sue creators powerlessness, then the only thing piracy harms are extremely rich people who kick beggars, laugh mockingly at orphans and tie street urchins to the wheels of their horse-drawn carriage.
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Ironically, the only way Steve Ditko was able to make money off his early work later in life was by reprinting the stuff that had gone into the public domain.
In the last years of his life he made more money off the obscure EC knockoffs he drew in the ’50s than he did from Spider-Man or Doctor Strange.
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I think we can rule out any of the major publishers doing their own version of Fables, precisely because of the legal uncertainty. (I could maybe see Dynamite doing it; they’ve caught shit from the Edgar Rice Burroughs Estate over the years for their comics based on Tarzan and A Princess of Mars.) If it happens, it’ll likely be small-press or self-published.
Willingham did note that the artists, Mark Buckingham and Steve Leialoha, could do their own version without him (and frankly I’d like to see that; I like them a lot better than I like Willingham). I doubt they’d want that aggravation, but if they really wanted to tweak DC’s nose they could try self-publishing something. That’d get them blackballed by DC at the very least, but looking at their credits Buckingham’s in his mid-60s and Leialoha’s in his 70s and neither one of them has done any non-Fables work for DC in the past decade, so they may not care.
One thing that I find interesting but will probably not come to anything: Chris Roberson (possibly best known as the co-creator of iZombie) wrote three stories set in the Fables universe, all of them focused on Cinderella (who in Fables is a James Bond-style secret agent). Two of them were published; DC shelved the last one after Roberson publicly criticized their history of creator-unfriendly behavior (which kinda seems like it proves his point, but what do I know). I’m curious as to whether Roberson could publish that last story himself, though I doubt he wants to deal with the shitstorm he’d be inviting if he did.
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He probably couldn’t, because he’s already signed a deal with the devil.
I’m inclined to think that these copyright notices would be checked by the lawyers before publication. That’s kind of their job, right? And would take maybe a minute. So, it seems fair for a court to treat the copyright as joint if the involved parties all agreed to (repeatedly) publish a statement saying such. Similar to how we have a bunch of pre-1978 films in the public domain because someone authorized publication without a proper notice.
Of course, companies have been getting away with outright fraudulent copyright notices for quite a while. If I recall correctly, books “first published in 2024” (and “Copyright 2024”) appeared on LibGen more than a month ago. Given that copyright takes away rights from the public, we should insist on correctness in these statements.
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Problem there is that the copyright notices aren’t put in only with the agreement of the creator. DC will put whatever they want in them, and the lawyers will only check that what’s in there benefits DC. The final determination comes down to the contract DC and Willingham signed, that’s what governs who owns what rights. And sorting that out is going to be a nightmare because DC absolutely will try to interpret everything in their favor regardless of what the contact says. You can’t even trust the registrations, because the Copyright Office doesn’t check anything but it’s own registration database for conflicts or errors. Anybody could submit a registration for any work regardless of authorship, and if there wasn’t a pre-existing registration for that work the Copyright Office will accept it. There’s probably a penalty for submitting a false registration, but it also probably requires the actual copyright owner to pay for the lawsuit to enforce that penalty and correct the registration with no way to recoup those costs.
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…except that what they wrote is against their own interest, to the benefit of the author. One party can’t unilaterally decide to give up someone else’s contractual rights or copyrights. But why stop DC from giving up their own rights? If they say, in writing, that they hold the copyright jointly with the author, and the author agrees, it seems fair to use that against DC when they later claim otherwise. Copyright management is a significant part of their business, they have a lot of lawyers, and so they’re presumed to know what they’re doing.
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The situation here though may be that the author didn’t say in writing that they hold the copyright jointly with DC, DC said that. If they don’t in fact jointly hold the copyright with the author, it definitely would be in their interest to claim they do because that gives them control where they wouldn’t otherwise have it. There’s a lot of variations, but for all of them you’re going to eventually end up looking at the contract between Willingham and DC to figure out what each party is allowed to claim.
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Willingham claimed—in writing, quoted by Mike—to be the sole copyright holder. DC claimed in writing, on every book, that it was a joint copyright; now they claim in writing that it’s not joint, but DC’s only.
So, yeah, the contracts will matter, but it’s strange for DC to be claiming “joint copyright” publically for years and then change their position. Presumably, Willingham should’ve been aware of the copyright printed on every book too, and should’ve formally disputed any incorrect notice before writing the next book(s). The court should therefore be sceptical of any attempt to now claim it’s not a joint copyright (more sceptical of DC, though, since they’re the more legally sophisticated party).
Re: Re: Re:3
The good news is that for as long as we have this disagreement, which could take years to decide, Fables is in the public domain, and ex post facto laws are illegal. So the use of the now public domain series is perfectly legal, until proven otherwise, and anything made in that window of time is legal, too. No one can be held guilty for what was legal at the time it was made.
Re: Re: Re:4
I’m pretty sure that’s not how it works. Fables has not been proven to be in the public domain, and as long as there’s an active copyright registration, it’s not going to be “ex post facto”.
Re: Re: Re:5
What do you mean by that? As long as the argument is going on, Willingham’s release will be in effect, anyone who takes him at his word can use Fables.
If they were wrong, then the punishment falls on Willingham for giving a command that he had no business giving. If they’re right, then they’re well within their rights to use it. Might be the first time the “following orders” defense could be used outside of a court-martial or post-war trial.
Re: Re: Re:6 Wew lad
This is not how the law works when it comes to legal disputes of ownership. If the courts come down in DCs favor, and they discover you’ve been publishing Fables content during the dispute, you are fucked. You might argue for leniency on the grounds that you believed Fables was in the public domain, but ultimately you’d still be guilty of copyright infringement & liable.
Re: Re: Re:7
The “following orders” remark makes me think maybe the Coyote was being facetious (but: Poe’s law). If not, well, maybe someone who relied on this promise could sue Willingham. I don’t know whether there’s precedent to give them any chance of winning, or whether Willingham would even have any money to pay a settlement. Maybe the “winner” would be assigned the very royalty stream that DC is refusing to pay, and would then get to be the plaintiff in a Hollywood Accounting suit (DC being owned by a Hollywood studio).
Re: Re: Re:4
Yeah that’s not how it would shake out, DC has a vested financial interest in stomping flat anyone who takes Willingham at his word by creating Fables works since to do otherwise would weaken their case/argument and imply that they do think he has a valid claim, something that would not help them in court.
If there’s a contract/copyright dispute like that pretty sure courts are much more likely to retain the status quo until it’s been proven otherwise and in this case that would be that Fable is very much still covered by copyright.
Re: Re: Re:5
Yet the more people who take him at his word, the more complicated it becomes to enforce the claim and the more difficult it becomes to catch every single last “thief”. The Zerg Rush strategy might work, after all
Re: Re: Re:6
Would you risk your livelihood—because DC/WB would absolutely sue you into the ground, make no mistake about that—to take him at his word?
Re: Re: Re:7
But are they willing to go through so many trials to bring all the guilty people- who ultimately were just following orders- to justice? All those trials in many different countries over the course of years, all hoping to find judges and juries sympathetic to their cause, and officers willing to serve warrants to defendants if they can find them, and it gets tougher the more people share?
Yeah, I’d think the reclamation by the people is going to be extremely difficult to defeat, if that’s what Willingham wants.
Re: Re: Re:8
DC has enough money to tie many, many people into costly litigation. And wait.
Don’t ever forget Bleem vs Sony. All Sony did was bleed Bleem out despite Bleem WINNING the cases.
Re: Re: Re:9
How? Using a private police force that works internationally, which would need umpteen arrest warrants, to dragnet innocent people into sham trials? And then actually having to prove beyond any reasonable doubt that the defendants knew and intended to steal Fables, after being told that Fables was public domain?
All of this traces back to Willingham, who may at some point face arrest for lying about something being in the public domain- which he wouldn’t know that he didn’t have the authority to do so until after the trial? None of this makes any sense.
Re: Re: Re:10
Ah, I see.
I was under the assumption that it would largely be limited to the US.
And honestly? While I’m aware that international lawsuits tend to get messy, there’s no timeframe on litigation and the fear of being dragged into one usually is a good deterrent. Doubly so if the country has laws that favor copyright maximalists.
Re: Re: Re:11
They get messy because dragging one person from his home to stand trial in another country constitutes kidnapping, which is wrong on so many levels, but the USA has done in the past to supposedly combat terrorism.
This is important not just for safety reasons but so the defendant can defend himself against foreign nationals who are accusing him in trials, which would be impossible for him to attend.
And as we go all over the world, and in the United States as well, it needs to be abundantly clear that the series in question is copyrighted and not public domain, and we won’t know the answer to that for a long time, that’s in dispute. Nothing is settled yet and Willingham might actually win this fight. He’ll be presumed innocent while this whole mess is going on, giving fans an ample window to write fanfiction about his shows. While he does, plenty of innocent people can enjoy making their own Fables, free from worrying about retroactive guilt.
Re: Re: Re:12
Woah, a cross-border lawsuit? Even the most Trumpian of lawyers know that’s folly, and they’re the dirt under the fucking barrel. (And also the dumbest)
Far cheaper to pursue these cases locally. This is, of course, assuming that DC has offices in the jurisdictions they want to serve these lawsuits.
In most cases, they just need to prove that whoever made Fables fanworks have truly violated fair dealing.
And it gets even easier in jurisdictions without either fair use or fair dealing. That is, DC has a fucking slam dunk in Japan.
And again, DC has enough money and spite to drag all their cases on.
Now, I must say, in the interests of being fair, that it’s unlikely that DC will actually try this path, as it’ll generate so much negative PR. And it’ll simply cost more than their lawyers are willing to do.
The more likely option is Billingham will be given the Bleem treatment, and despite the courts’ mercy or Billingham’s lawyers being kind, Billingham will be bled dry by DC and his reputation dragged under the mud. People have been fired for far, far less, you know.
Re: Re: Re:10 Slow down
… I don’t think you understand how civil copyright lawsuits work. You’re not arrested, you’re simply served with notice you’re being sued. They’re not “sham trials,” they’re real and you either settle out of court or defend yourself. Failing to do either of those will likely result in a summary judgement in favor of DC, then you’re just plain on the hook for whatever the court awards them.
Re: Re: Re:8
They won’t need to go through many trials. They’ll need only to ruin a single person as a warning shot. Everyone else will fall in line when they realize that yes, the corporation is The House and—with rare exceptions—The House always wins.
I don’t like it any more than you do, but that’s how reality goes.
Re: Re: Re:9
They tried to ruin a few single people’s lives to stop file sharing and we saw how well that worked. They lost the most important court in America- the court of public opinion.
Re: Re: Re:10
Only because there was information coming out that the recording industry was playing dirty.
Re: Re: Re:10
That is because millions of people were involved. As a realistic, practical matter and not a hypothetical thought exercise, I doubt you could even get dozens to participate simultaneously in an effort to create new Fables works. Such a small number of legal targets would be easily manageable by a company the size of WB-Discovery.
Re: Re: Re:10
Who lost in the court of public opinion? This thread is so long that it’s hard to tell, but I think you mean Sony? Which remains a wildly popular company, whom gamers seem happy to throw money at and game-makers have no qualms about being associated with. The same goes for the film, music, and book businesses.
Okay, we’ve now got at least one high-profile person who might not deal with the book publishers again: Bill Willingham. Though I suspect Bill would, like Cory Doctorow, say “I have to eat” and deal with them again anyway, if the right opportunity comes up. Just maybe with a DC-equivalent rather than DC themselves.
But there seems to be no notable organized resistance to restrictive copyrights at any level. Just a few weirdoes like me, who saw their friends got kicked off of Napster (or whatever their “inciting incident” was) and will therefore (almost) never give money to Netflix or Spotify or anyone else who funds groups like the “MAFIAA” or the Authors Guild.
Re: Re: Re:10
Apples and oranges, really. Besides, DC/WB would only need one (1) ruling in its favor that says “Fables belongs to DC and is not in the public domain”. Once the company has that, everyone else who thought they could take on The House and win would withdraw all their shit (and beg for mercy). A “good faith” belief in Fables being public domain wouldn’t be a defense against copyright infringement.
Re: Re: Re:11
On second thought, it probably wouldn’t work.
Destroying a dam above an enemy base of operations so that the water can wash away and drown them makes for good strategy, but that wouldn’t work unless there was an absolute deluge of water, or in this case multitudes of fans to do it. Willingham’s actions are noble, but you absolutely got to have as many people as possible on your side to make it work. There’s strength in numbers, and since few independent artists were going to use Fables if it were public domain, you won’t have enough oomph to fight against DC.
Re: Re: Re:12
Even if you could muster up the metaphorical deluge of which you speak, it wouldn’t matter so long as DC/WB could secure the one ruling it would need to fight the deluge and win.
Re: Re: Re:13
Maybe if he had worked alongside others to create a shared universe, spent years planning the release of Fables into the public domain, and not had an outburst in public about it which seems so heat of the moment, it might have worked. The idea of using the public domain to wash away a copyright by having a multitude of people use the property is definitely a good one, but he would be better served with planning months or years in advance to do this.
A gradualistic strategy involving informal meetings, possibly foreign nationals working on their own projects, could have worked off. But this was just too sudden, too public, and too easily sniffed out. Nice try, though.
Re: Re: Re:8
They won’t take them to trial. The threat is simple: “We have more money and lawyers than you do. Give in, or we’ll bankrupt you in discovery. They’re going to pay those lawyers anyway, after all, they’re on staff. It’s not costing DC anything significant to draw things out in discovery, whereas the defendant doesn’t have lawyers on staff and is paying for all of it out-of-pocket.
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Something something because there are such strong penalties in place when someone misuses a copyright or copyfraud claiming ownership where there is none.
Discovery hasn’t helped, but this goes back to DC pushing Paul Levitz out in 2009. Not just before the Discovery purchase but even before the AT&T purchase.
Levitz is surely one of the people Willingham is speaking of when he says that when Fables started, the company was run by people with integrity. Another is Karen Berger, the editor-in-chief of the Vertigo imprint (who was pushed out in 2013). Both of them, as well as people like Levitz’s predecessor Jenette Kahn and Vertigo editor Shelly Bond, were responsible for a couple of decades where DC at least made an effort to do right by creators. They didn’t please everybody — see any interview with Alan Moore — but I’ve heard more creators praise their stewardship of the company than criticize it.
And that’s exactly why Warner Bros. wanted them gone. There were things WB wanted to do — sequels to Watchmen, no more creator-owned comics at Vertigo, etc. — that Levitz and Berger refused to.
DC’s current owners — and the previous ones, and the ones before that — see the company as an IP farm, and creator-friendly terms as something standing between them and their profits. What they don’t understand is that without people like Kahn, Levitz, Berger, and Bond, they wouldn’t have properties like Watchmen, Fables, Sandman, John Constantine, Y the Last Man, or iZombie in the first place, and characters like Darkseid and Swamp Thing would have likely languished in obscurity.
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Hell, there’s an HBO series about Peacemaker now. What are the odds anybody would care about Peacemaker if it hadn’t been for Watchmen?
(For those who don’t know: DC bought Charlton Comics in the early ’80s; Alan Moore pitched a story called “Who Killed the Peacemaker?” and they said it was a good hook but they didn’t want him killing off the characters they’d just bought, so could he change them to original characters? The Peacemaker became the Comedian, the Question became Rorschach, the Blue Beetle became Nite Owl, Captain Atom became Dr. Manhattan, Thunderbolt became Ozymandias, and “Who Killed the Peacemaker?” became “Watchmen”. And, necessarily, any subsequent creator who’s worked with the original Charlton characters has done it in the shadow of Watchmen and its skewed, deconstructionist take on them. Today’s Peacemaker has a lot more in common with the Comedian than the ’60s version of the character.)
I agree that copyright is abused by rent seeking companies that lock up culture and serve the diametrically opposite of the purpose copyright was envisioned to promote. I agree that it should last for about 20 years.
However, an important part of ownership of something, and much of the value of something, is that it can be sold. For the same reason, in selling it, much of the value is that it can be resold. We generally believe in secondary markets for goods here and decry restrictions on secondary sales. The same principle should apply to copyright ownership.
Letting copyright be bought by a big company that relentlessly squeezes value out of it is not a big problem if soon enough, it enters the public domain.
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The modern form of copyright was written by rent seeking companies, the stationers company, and were the master minds behind granting authors copyright as a transferable right. It gave them back what they had been lobbying for, control of the publishing industry, as at the time the only thing an author could do to get a book published was sell his copyright to a publisher.
Once upon a time, I produced an audio and accepted the “generous” offer of a sound engineer who knew us to record it, but then he held it hostage. I got a crash course in co-authorship and everyone’s rights.
This is quite the mess.
What will probably happen is the existing works will wind up in the public domain, but there will be future derivative works that DC will profit from through superior distribution.
Funny Animals
The creator of Fables is still working in funnybooks? That’s some old school—
Oh, Fables—
Not Frisky Fables.
The Compendium of U.S. copyright office practices (3rd ed., 2021) doesn’t seem to say much about how copyright abandonment interacts with joint copyrights. It does reference abandonment, but mostly talks about the public domain being composed of formerly-copyrighted works whose copyrights have expired.
§505.3 says (agreeing with Mike):
Can a joint copyright holder actually put something into the public domain? That, presumably, would allow them to unilaterally end the aforementioned “duty” to co-owners, and to void any existing contracts tied to copyright lifetime. The situation could therefore be subtly different than granting a public-domain-equivalent (as, for example, the text of CC0 would do if true public-domain status were not possible).
Does Willingham actually say the work is released to the public domain? I don’t have permission to view the Substack page, and the text Mike quoted doesn’t seem to explicitly say that, nor explicitly grant any rights. Parts kind of look like they do, until read carefully (like “If I understand the law correctly… you have the rights…”—that’s Willingham interpreting a law, not granting any rights; and while I see Willingham claiming the authority to put it into the public domain, I don’t see any statement purporting to exercise that authority).
Re:
I somehow missed that the first quote covered that. Still, what happens if Willingham had the right to issue a public-domain-equivalent license but not to actually make it public-domain? Is the quoted text then void, or can it be read as such a license?
If some of the things I have seen Mr. Willingham has said about how they tried to pretend that DC could cut deals with TellTaleGames and cut him out of any control/profits over the IP he created when they made a new deal with the game maker.
It sounds like the artist got tired of being jerked around & now has EVERYONES attention bringing them to the table.
This is going to be a very messy fight & I look forward to the same people who scream think of the artists backing the corporation trying to screw the artist.
Ownership of rights, contracts, ignoring contracts, finding new ways to make profits & keep them from the creator… this is gonna be really messy… and hey since the length of copyright is like 3 human lifetimes there can be a very very long protracted fight exposing how the system has been perverted for corporations while making sure the artists stay starving even if they created the hottest property in the universe.
Who knows, maybe just maybe, when this is all done maybe Star Wars will finally recoup.
Re:
Why, what did Mark Buckingham say?
Conflicted
The guy is an anti-sjw so while I agree with him here, he isn’t automatically a hero.
Re:
Nobody said he was. Just that he’s trying to do something good here.
There are two different things at issue. There’s the Fables characters and world on one hand and published works on the other.
Fables has characters and a reasonably definable world from what I understand. The author has control (it appears) of those characters and that world. The author can therefore put into public domain those elements.
(The artwork is copyrighted to DC entirely (which is probably lowballing the actual artists but that’s another story) according to the citations in the article so no issue there.)
What can’t be put into public domain without DC’s permission are the already-published stories and accompanying art. Those existing works “belong” (at least plausibly, based on Masnick’s reporting) to DC. DC states exactly that and nothing more-note especially the terms “published by DC” and “therein”:
“The Fables comic books and graphic novels published by DC, and the storylines, characters, and elements therein, are owned by DC and protected under the copyright laws of the United States and throughout the world in accordance with applicable law and are not in the public domain. DC reserves all rights and will take such action as DC deems necessary or appropriate to protect its intellectual property rights.”
I believe that statement to be accurate and not in (much) conflict with the author’s statements.
DC did not state something like “DC is the exclusive worldwide owner of all Fables IP. Its characters and elements may not be used for any purpose without the express permission of DC and pursuant to a license agreement yadda yadda.” (Boilerplate may vary. Consult your legal advisor.)
There’s enough for lawyers to chew on and to intimidate would-be Fables fictioneers of course, and that would suck. Just how closely a character can resemble a depiction in the protected works is one particularly billable issue.
Based on the information in the Techdirt piece, both parties appear to have accurately stated their view of the issues and both appear to be correct.