Copyright’s legal stranglehold on creativity has made putting works into the public domain absurdly hard

Bill Willingham is a well-known writer and artist of comics, famous for his work on the series Elementals and Fables. He’s written a long and interesting post on his blog about the shabby treatment he has suffered at the hands of his publishers, DC Comics, a subsidiary of the entertainment giant, Warner Bros. Discovery, which had a turnover of $33.8 billion in 2022. It’s well-worth reading Willingham’s post to understand the injustices and humiliations, big and small, that he has been subjected to. One of the reasons copyright companies get away with this kind of bullying behaviour, is because they can afford lawyers, but most creators can’t. As a result, Willingham has come up with a novel alternative:

Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. 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.

I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

Specifically, Willingham writes:

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.

This blog has written many times about the public domain, and its central importance to creativity – past, present and future. Placing his work in the public domain is a wonderful way both to allow other people to use it in all kinds of exciting new creations, and to snub his copyright oppressors in the most poetic manner possible. Needless to say, the latter have no intention of allowing this to happen if they can stop it using their weapon of choice: copyright law. Comic Book Resources reported that DC Comics have responded to Willingham’s plan as follows:

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.

Unfortunately, in this case, it is not just legal bluster. Author and digital rights expert Cory Doctorow has written a long and perceptive post about Willingham’s plans, noting:

Willingham has since clarified that his public domain dedication means that the public can’t reproduce the existing comics. That’s not surprising; while Willingham doesn’t say so, it’s vanishingly unlikely that he owns the copyrights to the artwork created by other artists (Willingham is also a talented illustrator, but collaborated with a who’s-who of comics greats for Fables). He may or may not have control over trademarks, from the Fables wordmark to any trademark interests in the character designs. He certainly doesn’t have control over the trademarked logos for Warner and DC that adorn the books.

Although Willingham’s public domain dedication will still allow others to draw on his creativity in certain ways, it will be tightly circumscribed given DC Comics’ threat. This underlines just how hard it is for creators to liberate their works from copyright’s intellectual monopoly by releasing them into the public domain, even if they want to. That, in its turn, proves how today’s legal landscape is biased in favour of the copyright industry, and against the artists it is meant to serve.

Featured image by Stable Diffusion.

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