There’s been a lot of talk of copyrights ending within the next decade and what this means for comic books. Many are putting forth the theory that characters created in the 1930s and 1940s and still published to this day will soon be entering the public domain. Many are participating in the idea that there will be a free-for-all, and anyone will be able to publish their own Superman comic. It’s time to set the record straight.
How Copyrights Work
Copyrights allow originators of works – books, music, comics, etc. – to retain ownership of their works for a set period of time, after which they enter the public domain, meaning anyone has fair use of the work. Copyrights and patents are specifically addressed in the United States Constitution. Article 1, Section 8, Clause 8 – or as it’s known by legal scholars, the Patent and Copyright clause – states that Congress shall have the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Because Congress is granted power to set the “limited time” enumerated in the Constitution, the courts tend to defer to the time limits put in place by Congress. The first Copyright Act in 1790 set the copyright term at 14 years. That has since been expanded to 28 years, 28 years with a 28-year renewal, 75 years or the life of the author plus 50 years, and, the currently active Copyright Term Extension Act of 1998, to 95 years or life of the author plus 70 years.
Importantly for comic books, works for hire published after 1978 have a term of 120 years after creation or 95 years after publication, whichever comes first. The copyright term for a comic book published in the 1930s up through 1978 ends at the end of the year 95 years after initial publication. Thus, Action Comics #1, the first appearance of Superman and cover dated June 1938, will enter public domain beginning January 1, 2034. So, Superman’s free for anyone to use at that point, right? Not so fast.
How Trademarks Work
Trademark laws are in place to protect the commercial identity of businesses all in an effort to avoid confusion on the part of consumers regarding who created the goods and services they’re purchasing. Most trademark law in the U.S. was codified under the Lanham Trademark Act enacted in 1946 and provides stiff penalties for trademark infringement and dilution.
In the case of comic books, that includes anything and everything you could possibly imagine. Names, logos, emblems, costumes, titles, likenesses – they’re all trademarked. In fact, even the term “super-hero” and any derivatives is jointly trademarked by Marvel and DC.
While a trademark registered with the US patent and trademark office – ® – has a higher degree of protection than an unregistered trademark – ™ – both significantly protect the owner of the trademark from infringement and dilution. That’s why you see the ® and the ™ all over comic covers.
Why You’ll Need Deep Pockets for Superman
So, Action Comics #1 enters public domain in 2034 and let’s say you want to publish your own Superman comic. You’ll need a lot of money for lawyers and legal fees because Warner Bros. Discovery – owner of DC Comics – is going to sue your pants off.
Even with Action Comics #1 entering public domain – along with all the issues up through and including Action Comics #7 – it’s only those works that are entering public domain, not Superman himself.
Superman is trademarked – his name, his likeness, his costume, the “S” on his chest, the title “Action Comics,” everything. There might be something that DC has missed but it’s highly unlikely. So, the high-priced lawyers of Warner Bros. Discovery will take you to court for trademark infringement if you publish anything with Superman.
You might get away with reprinting Action Comics #1 through Action Comics #7. But odds are, those lawyers will still take you to court for trademark infringement. Sure, you can argue that Superman now is different from Superman then and the earlier version can no longer be considered trademarked. But those lawyers are going to argue that they kept that initial Superman going through the use of multiple universes.
Even if you prevail in court, and that’s a big “if,” it will have taken up so much of your money and time, it won’t be worth it. And they likely still won’t allow you to use the “S” or the title “Action Comics.” So, you’ll have to spend more money removing those from whatever you’re allowed to reprint.
The earliest comics containing superheroes (please don’t sue me Marvel and DC for using the term) may be entering public domain in the next decade. But there will be nothing “free” regarding the use of those characters.