Why Isn’t SUPERMAN a PUBLIC DOMAIN Superhero?? || Comic Misconceptions || NerdSync
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Why Isn’t SUPERMAN a PUBLIC DOMAIN Superhero?? || Comic Misconceptions || NerdSync


– Copyright laws were initially created as a way to give creators exclusive rights to their creations for a limited time. That way it’s not like
you do all this hard work only to have someone immediately
steal it away from you. But when a copyright term
is up, then like with basically all intellectual
property, the work goes into the Public Domain, where
anybody can tap into it. I mean, I’m oversimplifying a
lot of this, but bear with me because Superman should be a
Public Domain character by now. But he’s not. But he was. (rock music) Welcome to Comic Misconceptions. I’m Scott, and Superman
his debut in June of 1938 in Action Comics #1. That’s a little over 77 years ago at the time I’m recording this video. According to the Copyright Act of 1976 any works copyrighted before 1978 that haven’t already
entered the Public Domain had a term of protection for 75 years. But in 1998 all of that
was increased to 95 years. Now I know that’s a lot of
numbers and dates thrown at you right at the beginning of
a video, but it’s kind of a big deal, because if the
Copyright Term Extension Act of 1998 never passed, then
comic book characters published before 1940 would be in
the Public Domain today. This includes characters
like Batman, Namor, Shazam, and of course Superman himself. Plus a few others. They would all be Public
Domain characters by now. And when a work is in the
Public Domain, it can be used freely, by anyone, without permission. For example, Bill Willingham,
writer of the Fables comic series about
characters from fairytales and folk lore, once said
in an interview quote: “The sole determining
factors on whether or not “something will be used are:
1) is the character or story “free for use, meaning
in the public domain? “and, 2) do I want to use it? “That’s it. No other
considerations apply.” And that seems to be
working, because Fables is awesome! Now imagine if we could
do that with popular comic book characters like Superman. You could publish your own
Superman comic, or even film if you wanted to,
without needing to ask first. Sort of; it’s a little
more complicated than that. Let me try to explain
using The Wizard of Oz as an example. The book ‘The Wonderful Wizard of Oz’ written L. Frank Baum in 1900 is in the Public Domain. There have been many
adaptations of the story, including the one we all
know, 1939’s The Wizard of Oz starring Judy Garland, which
is not in the Public Domain because its copyright hasn’t expired yet. So if you wanted to make a comic book with the characters or
elements from The Wizard of Oz, you just have to make sure
that you’re pulling inspiration from the book, not the movie. For example: the famous
ruby slippers were made specifically for the
movie, but were actually silver slippers in the book. So in the Fables comic that’s
what’s shown: silver slippers. It’s pulling from the book, not the movie. Once the film officially
enters the Public Domain, then you may use ruby slippers. What this means for Superman is that even if copyright laws
still only protected published works for 75
years instead of 95, then sure, we would
have the freedom to use Superman however we wanted today, however we could only use
elements of the character published before 1940,
because anything after that would still be protected by copyright. Put simply, we couldn’t use this Superman, we could only use this Superman. Plus, DC still has a ton of
trademarks on the character like the name Superman, for example. The “S” symbol is probably
another one they have. A lot of other things I’m sure. And trademarks can be
infinitely renewed, so that is a super bummer. That was dumb. But believe it or not, there was actually a very brief time when Superman
was in the Public Domain, technically. You may recall that way back in the day Superman publisher DC Comics was going out and suing anybody they could for any comic book
character that even slightly resembled Superman, and one
of those unlucky characters that DC thought infringed
on Superman’s copyright was none other than Captain
Marvel from Fawcett Comics. Just a quick note here that
DC, at this point in time, was called National
Comics Publications, but I’m still gonna refer
to them as DC, because this is gonna make
everything a lot easier. Now if you remember from
our Captain Marvel video, the case was settled
between DC and Fawcett out of court, but there is
a lot more to this story. In the trial it was
ruled that Captain Marvel did violate Superman’s
copyright, but Fawcett Comics still won anyway. What? Scott, you’re talking crazy words! I know right? It sounds weird. But Fawcett had the best
darn avocados at law on their side, who argued
that even if they did infringe on Superman’s copyright it doesn’t matter,
because DC had abandoned that copyright on Superman and therefore could not enforce it. And if that sounds a bit strange to you, let me explain. Keep in mind that I am not
really good when it comes to this legal stuff, but I’ll
try to make it as clear as I can knowing full well
that I will definitely get something wrong. In the 1940’s DC had
licensed the rights to a Superman newspaper comic strip to the McClure Newspaper Syndicate. Together they would publish
Superman comic strips for a few years. Unfortunately, the McClure Syndicate kind of screwed up a bit. They neglected to copyright
the newspaper strips, and didn’t even put the
correct copyright symbol on the comics! Heck, many of the strips
were completely devoid of any copyright notices! And since the McClure Syndicate was in business with DC, DC should’ve been on top of the situation. But they weren’t. So the trial court ruled
that DC had abandoned their copyright on Superman when they didn’t make sure
that the McClure Syndicate was copyrighting the
Superman stories properly. And if they didn’t have a copyright then they couldn’t enforce anything against Fawcett and Captain Marvel. More importantly, when
a copyright is forfeited it means the work would
be in the Public Domain. This was the outcome of the trial. This was a thing that happened. DC no longer had a copyright on Superman. If anyone wanted to at this time, they could’ve published
their own Superman comic and there is nothing DC could do about it! But of course DC appealed and the ruling was changed. The judge, Learned Hand, which yeah that was his real name, ruled that Fawcett was
absolutely copying Superman with their character Captain Marvel. Which, honestly was not even in question; that’s what the first ruling said too. But he also said that, no, DC didn’t give up their
copyright due to some mistake. For a copyright to be abandoned the copyright holder has to
clearly and intentionally, that’s the key word,
give up the copyright. It was not DC’s intent
to abandon Superman. They love Superman! He makes them a lot of money. And they copyrighted all
of their comic books, so why would it make sense to punish them for something the McClure
Syndicate was responsible for? The judge ruled that DC’s
Superman copyright was indeed enforceable, and
Fawcett was once again on the losing side of the battle. But, of course, they
settled out of court anyway. So for a brief moment in time, Superman was technically
a Public Domain character and that is kind of neat. What do you guys think:
will Superman or any other major comic book character ever truly be in the Public Domain? Should he be, and what kind of stuff would you do with the character if he was? Let’s talk about it all
in the comments below. And also, as I said, I’m not really good with legal stuff, so I’m 100% positive that I got something wrong in this video, and if I did: please let
me know in the comments so we can clear it all up. Also, I and the rest of
the Nerdsync gang will be at VidCon this weekend! If you are also going I’d
love to meet up with you guys and take some pictures,
and hang out for a bit. I’m very excited for it. And that also means that
there’s not gonna be a tie-in video for this
week, but I’ll try to post something, probably from VidCon. If this is your first time
hanging out with us here at Nerdsync, we make new videos every week because we believe that asking questions and examining comics
beyond the surface can actually enhance your comic
book reading experience, and make comics just a
little bit more awesome. So make sure you hit that
big, sexy subscribe button so you don’t miss out on anything. Once again, I’m Scott. You can find me on Twitter and Instagram and I’ll see you guys on Monday for an episode of the Nerdsync podcast available on iTunes and SoundCloud if I don’t get a video for Friday done. I probably will though. Alright, see ya!

100 Comments

  • MrTristan1235

    From my understanding correct me if I'm wrong I'm not a lawyer but Superman is already kind of public domain. In the form of the 1940's Fleicher Studios cartoon shorts. You should be able to create content based on that version of the character.

  • Joe Faber

    This shows why we need serious reworking of our copyright and trade mark laws. These laws were intended to protect creators, not corporations.

  • Patrick Leslie

    Seeing as how Superman was a pretty direct ripoff of Gladiator (the novel) it shouldn't have a copyright in the first place. Simply my opinion.

  • Jason Schlierman

    US Copyright and Trademark laws are out of control. It's mostly fueled by Hollywood studios like Disney and Warner, but it's not really about protecting artists anymore, it's about corporate welfare. Things NEED to go into the public domain!

  • Shane Pfannmuller

    This copywrite stuff is nonsense. I don't get paid for work I did last year, why should people get paid for stuff done a century ago?

  • Russ Johnson

    Hey Scott!

    I'm a TV station engineer, but my degrees are actually in Mass Communications and foreign language. Communications law was absolutely part of the curriculum for me to graduate!

    You should be proud of this video. As far as I can tell, you did get exactly one thing wrong, as you predicted. However, it was just a superficial little thing: Judge Learned Hand's first name is pronounced the Shakespearean way, "Learn’ed,” with two syllables. So, well done!

    An extra little tidbit you might find interesting: modern copyright law in the U.S. does not require registration or use of the copyright symbol in order for a work to be copyrighted. A work only needs to be put down on paper, or captured on tape or recorded digitally, in prefer for protection to be granted.

    Cheers from Nashville!

    —Russ

  • Charles Cox

    Have a ruling that is later overturned is not "technically in public domain" for a short amount of time. If someone did publish a superman story without DC's permission during that time they probably would have seen themselves on the losing side in court after the Shazam decision was overturned on appeal.

  • Angst Vexed

    copyright laws ( the latest batch) are well the act of Disney and some other powerful companies who didn't want to give up their rights….Now its the kind of crap that will make all ideas theirs and you will be on the outside looking for an idea that you can use.

  • cain524

    I never understood HOW captain marvel violated copyright laws. Yeah he had super strength, but so did almost every other superhero. His costume was different, his origin was different and he used magic. He wasn't even an alien he was a little boy given powers by a sorcerer. Why did DC have any legal ground to sue?

  • Jesse Cole

    It's 4:35 a.m. and I'm on YouTube watching a guy who looks like a cartoon chipmunk tell me about comic book copyrights. What is my life…

  • John Baker

    I don't think any copyrights that are owned by corporations will ever be released. There will always be some excuse as to why they have to keep the rights to the IP. We don't own our culture.

  • Caboose 92m

    If someone had published a superman comic at that time, would that version of superman been public domain forever, allowing people to use THAT version of superman?

  • Rene Ferrer

    I hope he never falls into public domain. I don't want to see 50 different horrible versions of Superman out there. Yeah, DC doesn't always do well with Superman, but that's far better than what would happen if they didn't fully own Superman.

  • TheBlackDoor

    But you didn't tell why he/it isn't public domain.
    Changed because Disney pulled some strings because Mickey (or some of their cartoons) were about to be public domain.
    Or something like that

  • Fnordathoth

    Superman will never fall into the public domain, none of the DC or Marvel properties will. When it comes too close to the time for the copyrights to expire these companies will send lobbyists promoting extension of copyrights again and there will also be much greasing of politician's palms to make sure that copyrights are extended.

  • TheCyndicate

    Yeah, changed to red in the movie because the Hollywood elite are into child sex trafficking and murder. The red shoes are a ritual symbol in that sick cult. Look it up.

  • Gecko o

    This sounds so weird, Im dizzy, also that tells about how old are those characters, we need new heros I think that some one should kill the dc universe so we can get new characters.By the way I think that there is the posibility of fair use in that you can make a parody as long as you apport something to the character… do no click on the link

  • Restartwithdogpeople

    rich people and companies run the world, so those things will never be in the public domain until we remedy that problem

  • puellanivis

    Even if a trial court had found Superman to be public domain, the ruling isn’t “final” until it goes through appeal or they abandon their argument. As they filed a timely appeal, it is not the case that there was any time at which one could have legally violated Superman’s copyright because it was in the public domain. It was only ever “putatively” in the public domain, which is not even technically correct. (The best kind of correct.)

    So, the story is cool, and I can see all the facts being straight, it’s just the interpretation of the law that is off. Which like… you admitted to… like… straight up.

  • Christopher Gibbons

    It is a little more complicated these days. You can't copyright a powerset, or a concept, but you can trademark identifiable symbols and copyright identities. This is why the heroes from "Irideemable" or "Invincible" can exist despite being clear copy and paste copies.

  • Whiteytheripper

    How does the copyright on Wizard of Oz apply to the musical Wicked? That play uses the Ruby slippers as a plot device

  • TheNewBlood Dan

    So basically copyright, in the context of this video, is the characters and their stories at a certain point of time. For an example; a paragraph describing a costume, such as a logo, of a public domain character could be used to design a costume in slightly different ways, but the trademark could still prevent a specific way that description could be interpreted, regardless of the copyright being in the public domain.

  • Ben B

    What's needed are some more kickstarters to make challenges to the abuse of CopyWrong and the use of "Trademark" to try to extend CopyWrong forever.

    Now, anything Disney has a direct hold of will be buried in a flood of money.
    BUT – things they don't have a hold of they don't care about. But there are always someone willing to slither out of the woodwork and claim it.

    Recently the Conan Doyle 'estate' got shoved up the A… Caligula style by a Judge and Sherlock Holmes declared public domain. Also the "Happy Birthday" racket got one also.

    My suggestion would be Conan the Barbarian.
    Popular enough and though many 'modern' stuff it's the REH source material they leech off of.
    And REH was marginalized in his life, abandoned by his Father, took care of his sick Mother. No one deserves to inherit or profit from Conan. Save maybe Arnie or the Artists who worked on him, now mostly dead, Rip Frazetta and Ernie Chan…

    What could be done is to start a "Conan Unleashed" project where a bunch of writers and artists come together to make new Conan stories – but ZERO connection or $ given to Marvel, Dark Horse, the REH "Estate" whatever.

    Rules –

    1 – Make sure to use ONLY the clear public domain source – there's a neat website for that – http://www.robert-e-howard.org/AnotherThought4rerevised.html
    Like no "Bone Woman", "Red Sonja", "Living Tarim" etc. Careful on the names, no "Shadows in Zamboulla" but "The Man Eaters of Zamboulla" etc.

    2 – as part of the Kickstarter/IndieGogo $ asked for is a retainer to employ attorneys. Those setting it up will try to find some willing to help and work out the $ needed. Enough for a reasonable defense so some goes to them and if there's no challenge maybe it goes to CBLDF if they also promise to help.

    3 – Due to reasons in #1 the likely legal challenge is to be in the "Trademark" issue. They trademark it so they can – and HAVE to – challenge it… right?
    Welp – there have been plenty of publications, including in print, using the Conan name and the clear public domain REH stories – such as this gem – https://www.amazon.com/Conan-Barbarian-Original-Unabridged-Adventures/dp/1435129326/ref=sr_1_11?s=books&ie=UTF8&qid=1530473790&sr=1-11&keywords=conan+the+barbarian which I saw at Barnes and Noble for years a while back.. Can buy cheaply on Amazon – "Conan the Barbarian – The Original, Unabridged Adventures of the World's Greatest Fantasy Hero"

    4 – With help of the lawyers make the project a "Corporation" – therefore if there's a legal challenge that is won, they don't get anyone's shirt or loincloth, just a bunch of unsold books and a bank account emptied in defense. Ask the President, he's good at doing stuff like that, thanks to his lawyers.

    Beyond that instead of another of countless "Pastiches" we'll get good living writers making excellent stories without the sludge that publishers with current hold of the CopyWrong but strict guidelines and no real care have put out. True "Blood and Thunder" and ramming a sword into "Political Correctness" or rather "Beyond" PC as in without reference to it.

    Another thing that almost came to be was a "Buck Rogers" movie – made per the original clear public domain "Armageddon 2419 AD" novel by Nowlan. But the Judge backed out of ruling because they hadn't made the film yet… Then again, advise protect per indie funding, corporation label, lawyers – a cheap movie could be made with incredible special effects (compared to ancient Serials) with even a home computer – look at the amateur Star Wars stuff – and again the thing could be set.

    It's a real sad irony that modern CopyWRONG law is "To prevent anyone from doing to Disney what Disney done to the Brothers Grimm".
    Disney, while creative and awesome made his $ by using popular works under the public domain. And butchering them to make them more mass appealing. I am quite sure that if he didn't he'd have never got successful enough for Disneyland and if the CopyWRONG laws they extended were in place at the time it would have been impossible for him to afford them.

    By all means use this idea – it'd be even better if two or three groups did this. Conan, Buck Rogers, any early clear public domain (?Captain Future? Doc Savage?) character with the setup to viciously fight if there's a "Trademark" or fake "CopyWrong" claim. Don't go after a Disney covetous property – yet – but like any war against an entrenched empire – attack the frontiers, the central authority just strenthens the walls on the capital city so the Nero and his court can bathe in the golden dome and not hear any bad news – then the Barbarians can pour sewage in the Aqueduct… IMO REH and Conan would be proud… "What is best in life?" -heh, that is from the Governator movie, but they stole from a public domain source…

  • Matthew Writer

    So if I write a story where my 2 original characters are talking about comics, can they list their favorite characters so long as those characters don't show up in the flesh?
    Exp: they debate who would be a better teacher, Peter Parker or Hank McCoy. So long as the TARDIS doesn't show up to take them to Gotham city am I safe?

  • Sorzin

    Yeah It would be Superman and the Human Torch the Android Version. The Android would be a drug addict and Superman would have a terminal case of Dutch Elm disease.

  • TwoCentReview

    Really just waiting for DC and Marvel to stop their crusade against anyone using the term “superhero” and “super villain”. It’s really stupid how everyone else has to call them “supers” or “megas” or something like that…

  • Charles Hadle

    Hence why you see limited runs of stories containing 'Golden Age' characters, even if they've died or been killed off or heavily retconned. Retention of copyright especially with golden age heroes not in the 'big three' is deemed necessary especially in cases of the original Green Lantern, Flash, etc. The interesting part is non copyrighted characters existing in multiple comic book universes. Hercules, Zeus, Ares, Athena, Hera all existing in Marvel, DC, the Xenaverse, and many more. To retain rights to Superman a few years back had to make deals restoring some ownership rights to Schuster and Siegel, creators they'd screwed the rights out of decades earlier. The copyright of 'for hire' works have a far shorter term because original creators of the content received no financial benefit beyond their original contract.

  • Vexa Grimwoe

    2:11 so I guess the creators of Dorothy and the Wizard of Oz are not allowed to use the Ruby slippers? Maybe they got permission? I love the cartoon more than the movie adaptations.

  • Jack Gray

    I think all comic book characters should be public domain. Think of how many fans popular comic book characters have. Superman, Batman, Green lantern, Spider-man, Blade, Punisher, Venom, Ghost Rider etc. If all comic book characters were public domain, not only would fans be able to write their own stories about their favorite characters, but they could write their own stories about their favorite character and they could write stories where they become said character and it would inspire a lot of people to practice writing and character design. It would allow fans to really use their imagination when working on something they care deeply about. Just think of the possibilities.

  • Justin Helms

    No one has the moral right to Superman, his inventors are dead and the people who bought him are too. Before Walt Disney greedily (and probably through bribery) had the law changed it was like 20 years.

  • Red X

    We should be totally okay to use the McClure comic strip's storylines, because they specifically failed to copyright. Just not with Superman as the character.

  • ZigZag2000

    Wait, so if you create a character, similar in design to superman, or any other DC characters DC will try and sue you? That sounds like poor business practices to me.

  • A Sense of Pride and Accomplishment!

    I dont get it shazam is nothing like superman superman no wizard no greek gods no lightning and stiff come on if shazams a ripoff then aquaman is too and other chars like vision whatever

  • Larry Brennan

    Mark Twain was bitter about copyright law. He suggested you ciuld own real property for a limited time, then your house and lot also become public domain.

  • SamWallace Art

    PLAN:
    —Let people make Superman comics so long as they only charge 1940s prices.
    —Only recognize DC-made Superman stuff as automatically canon.
    —If you make the better product, people will buy your stuff despite its higher price; if a fan makes a superior product, let their thing have some canon recognition or at least some honorable mention.
    This will improve fanfic and brandfic quality overall and encourage engagement with the fans.

  • Kenneth Eaton

    Implying Warner Brothers & Disney will let their copyrights expire. They have the money, and power to get the law changed. They did the last time they were about to enter the public domain.

  • Moonbeam 87

    Magiccatjenny would Like Her O.C. Meowlexander Hamilton at Vid Con since She's with Child, please check out her Channel to find out How.

  • CHARLES JAMES

    Well presented and accurate. DC started out with pulps mostly spicy, Marvel was involved with numerous pulps etc. William Gaines was able to get access to the 4 color presses in Conn. Both families who were related went into comic book business. The reason they settled out of court is because they were relatives. They combined their forces and have been able to monopolize the business ever since.

  • Cerebral Arsenal

    What about Brightburn? They're using elements of the recent Superman, rather than the one from 1939, for instance Heat Vision. This version is very similar to New 52's Earth 3 Ultraman.

  • Fantasy Stories

    DC and Marvel Characters will never go public. Disney and Warner will just lobby law makers and keep extending the laws indefinitely. They are incapable of coming up with good original ideas and the public are to stupid to understand new ideas generally. Thus we will have them creating Spider-man and Superman movies for the next 1000 years.

  • xl

    It will do a Superrnan movie, except I won't have any copyrights to pay, because RN in lowercase looks close enough to m, so that people won't realize they're watching SUPERRNAN and not SUPERMAN.. With the right font and kerning, this will be really difficult to see….

  • Salvatore M R

    Literally Doctor Strange is Not A born Again Christian at All and Doctor Strange is Literally Satanic and The Devil Magic Literally

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