By Ani Bundel
The concept of “public domain” is one fans have heard a lot but know little about. Intellectual property rights for famous characters and stories vary from country to country. But as one of the world’s entertainment capitals, U.S. law tends to overshadow them. Technically it’s 70 years after the death of the creator. But due to companies (mainly Disney) lobbying to extend those expirations, for many of us, works entering the “public domain” hasn’t happened in our lifetimes, until last year when the Sonny Bono Copyright Act, which froze all copyright protections for 20 years, finally expired.
That isn’t to say fans haven’t found workarounds. The rise of internet fan-fiction can be traced to the inability to use characters, as the restrictions dragged on. But thankfully, the Bono Act was not re-upped in 2019, and works have started entering the public square for the first time since the end of the 1990s. This sudden change in the landscape inspired San Diego Comic-Con’s Sunday afternoon panel “Public Domain Comics: From Sherlock Holmes to Mickey Mouse and Beyond.” It was a lively discussion concerning works that have been public domain for a while and those who will finally enter it after being restricted for many decades.
Malibu Comic publisher Dave Olbrich led the conversation. He was joined by publishers Tom Mason and Barry Gregory, along with entertainment attorney Michael Lovitz, specializing in trademark and copyright law (He also founded the Comic Book Law School®).
The conversation around public domain comics began with Sherlock Holmes, most stories of which was already in the public domain before the 1998 shutdown. Olbrich and Mason discussed how there was an attempt (by them) to reproduce the Holmes stories as comics — not new stories, mind you, but a faithful reproduction — and found themselves facing a cease-and-desist from the estate. Even though the stories may be in the public domain, the owners (or former owners) will find ways to extract a fee anyway. As Lovitz explained, loopholes like trademarked images or licensed characters exist. So even though there’s a real celebration about new works becoming free to use, there are always pitfalls creators should look out for.
And there’s also the need to face down that a lot of what passes into public domain is usually very dated. Unlike Disney stories, which seem to be remade and reused and sequel-ized (partly to keep them from moving into the public domain), these are stories that have remained static. Mason regaled the panel of how much work went into bringing back The Protectors in a comic, which meant hiring a historian to research every character. They then went character-by-character discussing what can and can’t be used, what was “too problematic” to keep and what could be given a modern twist.
Lovitz’s advice to anyone looking to get involved in using the new stuff starting to enter the public domain was to do your homework. Estates will come after you, but that’s doesn’t always mean they are right. He cited one case where the Arthur Conan Doyle estate tried to claim Holmes was protected because of stories written in the 1930s, and the court ruled against them. Once the first story passed into the public domain, then the characters were free to use, period.
Even with the work involved, this is an excellent time for creators, as more and more traditional media comes available. Some of the works created in 1924 that will become available this year are classics, such as Paramount Pictures’ 1924 Peter Pan and Henry Otto’s Dante’s Inferno. There are several novels, including E.M. Forster’s A Passage to India, and songs like Rhapsody in Blue, first performed in a 1924 concert titled “An Experiment in Modern Music.” Fans can’t wait to see what creators do with them.
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