As comic book fans, we hear lots of discussions about “creator-owned comics”, which creator has “optioned the film rights” to his/her most recent comic book or arguments between a publisher and creator about who “owns the rights” to a certain comic title. What are these “rights”? How do they work? And why is it useful for you (as a fan) to have a little understanding of these intellectual property concepts?
This article is the first of (I hope) a series of articles touching on various aspects of intellectual property (IP) in comic books. Of course, before we can discuss the minute details of why DC and Alan Moore are in disagreement over the IP rights related to Watchmen, we need to start with the basics.
As with any legal issue, intellectual property issues are highly complex and subject to change due to new legislation or court rulings. This article is merely attempting to lay out the basics. I also add the DISCLAIMER that I am not an attorney. I’ve worked with copyright issues for a long time in my professional life, but you should consult your own attorney if you have serious questions.
Copyright is the most basic form of IP present in a comic book. Copyright is awarded to any creator of an original work whether it be written, drawn or filmed. It is important to understand that copyright does not protect the idea itself, but merely protects the expression of the idea or its fixation into a medium. This “idea” versus “expression thereof” is an important distinction. Copyright does NOT protect the idea of a vigilante dressing up as a bat and fighting crime, or a superhero who is stretchy or an anti-hero with metal claws in his forearms, but it DOES protect the exact words and pictures that the creator uses to describe the those characters’ adventures.
Copyrights give the owner exclusive use of the copyrighted material during the term of the copyright. The term varies from country to country. For the purposes of this article, we will focus on United States copyright law. Even in the United States, copyright term has varied greatly over the years as various pieces of legislation have been passed. The current piece of guiding legislation in the United States is the Copyright Term Extension Act of 1998 (i.e, the Sonny Bono copyright extension act). Under CTEA, copyright was fixed at:
- 70 years after the death of the author
- Or, for work-for-hire, the shorter of (i) 95 years after first publication or (ii) 120 years from creation
Thus, a Marvel comic published this month will be protected by U.S. copyright until 2105. For comics created before CTEA, terms vary and you can find useful worksheets on the web to guide you if you have a question about a specific copyrighted work.
The situation is murkier when we consider a “creator-owned” project. “Creator-owned” is an imprecise term, but it is used in the vernacular to simply mean “not owned by Marvel or DC”. Each individual creator on a comic book owns his/her own copyright. So, there is a separate copyright for the pencils, the inks, the colors, the lettering and the script (the letterer is actually creating a “derivative work” of the original script, but derivative works are a more complex concept for a later article). There is no standard practice for how a “creator owned” book is actually owned, but it can vary from (a) each creator simply owning his/her copyright individually to (b) some of creators being employed on a work-for-hire basis by the title’s primary creator personally or (c) all the creators technically doing work-for-hire to a holding company that exists for the sole purpose of holding the IP rights for the title. But in any event, the term of each copyright must be calculated individually.
What does it mean when a copyright expires? You sometimes see comments on message boards about a character “entering the public domain”. This is not really what happens. Once all of the copyrights on a creative work have expired, anyone can create an exact copy of that work. For example, when the copyright on the earliest appearances of Batman expire, anyone can create their own reprintings of those exact adventures much like anyone can print a copy of Moby Dick or a Shakespearean play (it is also why you can buy copies of Moby Dick for cheap). However, they probably cannot simply create their own adventures starring Batman and the other denizens of Gotham City because of the trademarks (a topic for a later article) involved in comic books. As with any legal issue, much of this is a gray area where you may not know whether something is truly permitted until AFTER you have had a day in court. I go back to my advice above: When in doubt, consult with an attorney.
Registration of a Copyright
A first point of emphasis is that you do NOT need to actively register a copyright in order to have a copyright. You have a copyright on a work merely by creating it (at least under current law). And you are not required to hang copyright notices all over your work either although it is not a bad idea if/when you have to sue someone to be able to say, “Your Honor, I do not understand how the defendant thought this was a public domain work when it clearly says, ‘Copyright, Dean Stell, 2010, All rights reserved.’ at the bottom of the page.” However, if you have a commercially valuable copyright it is worth registering because it gains you some advantages in a lawsuit, namely the ability to obtain statutory damages and court costs. With an unregistered copyright you can only get “actual damages”. Actual damages would be the fact that the defendant sold 100 counterfeit copies of Batman #700 for three dollars each, so the actual damages would only be $300 and would NOT include that intangible damage to the copyrighted original product.
From a practical standpoint, registration is quite simple (and cheap). For more information, I refer you to the United States Copyright Office. The basic fee is (currently) $35 and can cost up to a couple hundred depending on what you are registering.
I hope this brief primer on copyright as it applies to comic books is useful and leaves you a little better armed the next time you encounter some bonehead on a comics message board. The other HUGE component in IP related to comic books is trademarks and I’ve broken this discussion up in the interest of space. Stay tuned for that article.
– Dean Stell
Acknowledgments: Sarah Feingold, attorney for Etsy, Inc. for pointing me to helpful resources.
Disclaimer: Legal issues related to intellectual property and contracts are complex and subject to change. Before taking any actions with your own intellectual property you should consult with an attorney who works for you (and not rely on an article on the internet).