Wednesday, October 5, 2011

Table Talk - It Takes a Village To Own an IP

Welcome back to Table Talk, the weekly column where three authors heavily steeped in New Pulp discuss all sorts of random topics (not always) relating to New Pulp. This week, Barry, Bobby and Mike discuss the subject of public domain and how they view it from both sides of the table.

Question (Mike): What do you guys think about public domain and how it affects rights to characters? Since we all create our own characters, that it seems our children and grandchildren, etc, should be able to benefit from (assuming the characters are ever worth anything) and we also all dabble in public domain characters, where do you think the line should be drawn?

I mean, Henry Ford's ancestors still own Ford Motor Company, they didn't have to give the company over to the public when it hit the 100 year mark. So, if it's not okay for that, why is it okay for the ancestors of Edgar Rice Burroughs or Robert E. Howard or other pulp authors to not still own their family's heritage?

Bobby: Good question. On one hand I do enjoy the fact that there are characters out there that I can utilize if need be for stories. I’ve certainly gotten a lot of mileage out of writing Domino Lady, who I plan to have guest star in Lance Star: Sky Ranger Volume 4 next year. While I have no problem with writing public domain characters, I do think that we should also be creating new characters. I believe that having a mix of the classic characters and new characters will help New Pulp grow.

Mike: I agree, Bobby. But to put the question to you a different way, how would you respond if you found out your grandson, after controlling one of your creations for a good bit of his life, had to give that up to public domain when he was 31? (I just picked an arbitrary age that *might* equal 100 years after you created the character) Wouldn't it make you feel cheated knowing your offspring could no longer oversee and profit from the exploitation of your hard work?

Bobby: To be honest, I’ve not really given a lot of thought to what happens to the characters once I’m gone. Maybe I should. If my heirs can do something with these characters then great. On the other side of the coin, if they don’t have any interest in doing anything with those characters then I’d rather someone get some joy out of working with them instead of them laying fallow and eventually disappearing. In 100 years I’d love it if some writer was to find a used copy of Lance Star: Sky Ranger and be excited enough by the character to either use the character in a story or create a pulp aviator adventurer of his or her very own. It’s like a creative circle of life.

Barry: I believe that our creations, if successful, become part of our modern mythology and the fabric of our society. I definitely believe in public domain – and as we’ve seen in modern times, public domain does not mean that the heirs of the creators are frozen out of profits. Sherlock Holmes and the Edgar Rice Burroughs characters are public domain but both have strong estates that encourage people to get their permission or approval for projects. No one HAS to but a large number of projects are officially sanctioned and the family certainly profits off of merchandising, licensing, etc.

It sounds awful but I believe in CREATOR’S rights – and while I think that the children and grandchildren of the creator should still make money off the creations in question, I think that eventually the ownership of the characters should become the community’s, and not just people who are related to the creator through genetics. I want Julian to control my characters after I’m gone but does that mean that I want my great-great-grandchildren to do so? To be honest, not really. If they’re smart, they can find ways to profit off of them but I’d rather that 100 years from now there were lots of people wanting to use The Rook as a PD character.

Mike: As you can see, I have mixed feelings on this. On the one hand, I do love seeing public domain characters revived and reinvigorated, and on the other hand there are no lack of people who own their parents' or grandparents' creations that act as if a character worth thousands should command tens of thousands in license fees. But I just don't get the separation between intellectual property and invention. My step-grandfather was an inventor and now his daughter owns his legacy to be passed down to her daughter and rightfully so. But, if my son lives to be 90, he'll no longer own Lions, Tigers and Bears

Barry: It sounds like your main problem, Mike, is with the duration of time before something becomes public domain. I think a century after the death of the creator (or the original copyright for corporations) is fair but I might go so far as 120 years. Beyond that, though, it should be fair game.

Bobby: I do see both of your points. Mike, is there a way to make sure your family can retain the rights? I mean, Disney seems to have gotten around it with Mickey Mouse, right? Sadly, I don’t know as much about trademarks, restrictions, and the like as I probably should. Maybe it’s up to this current generation of writers to come up with a fair and equitable solution. Of course, that’s where it gets dicey. I mean, just between the three of us talking here there’s multiple sides to the issue so coming up with a solution might not be so easy.

Mike: Yeah, I'm sure like everything else, any attempt to alter the current legislation would get bogged down in political nonsense, subjected to add-on "pork" by the opposition and then go down in flames after wasting millions of tax payer dollars. Ha.

Bobby: Sadly, you’re probably right.

Barry: True. I do think that it’s an interesting question, though. I still believe that there should be a limit on how long a fictional character can be “owned” by an individual or corporation but I’m certainly open to debate about how long that period should be.

Bobby: Agreed. But, in addition to time, should it be a consideration if the character is still in use or not? For example, characters like Domino Lady, Secret Agent X, etc. ceased publication and it was decades later they were revived. However, a character like Superman or Mickey Mouse have continued on in one form or another since their inception. Should that make a difference?

Mike: I think that should definitely have an impact on it. If someone wants to revive a character off the scrap heap after 40 years, or whatever, of zero usage, then I say let them. But, if it's something like John Carter, who has never been out of print, then the Burroughs family should still own it.

Barry: I disagree. If that were the case, then characters like Mickey Mouse or Superman will never become public domain. I believe that at some point all characters or ideas should be become part of the fabric of our community.

Families or corporations can still proclaim their products to be “officially sanctioned” and if they are smart about it, they’ll still be the ones who control the power. But I don’t believe that copyrights or trademarks should be eternal.

Bobby: It’s definitely an interesting discussion. I’ve never really thought about it in detail before, but this Table Talk Topic has got me thinking about it now. The public domain has certainly provided a nice sandbox of characters that I’ve gotten to play with in stories so I find that aspect of it very enjoyable.

On the other hand, I see some of the trends in context of using these characters and think that there is sometimes too much. An example of that is characters from Oz, Wonderland, Never-Never Land, etc. Those characters have been mined a lot in recent years. Even I came up with an idea that featured many of those same characters, but I decided to shelve that story idea because there were already so many people doing something with most of those characters at the same time.


  1. The ERB estate still owns the trademarks on his creations, but not the copyright on anything before 1923. They still make a TON OF MONEY from his work based on that.

    The public domain is there because it makes sense to have everyone contribute to our culture and build on it for the benefit of all. The problem is identifying works that have definitely passed into the public's domain so that we can eliminate confusion and legal turmoil.

  2. Mickey Mouse is still over a decade away from hitting his public domain break-point. Superman has more than 20 years.

    That being said with trademarks endlessly renewable how useful they will be as public domain characters is limited.


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