Wednesday, February 14, 2018

Wizard World & Sony

     Wizard World and Sony Pictures announced the other day they are partnering up to locate new properties for film development at Wizard World conventions. According to the reports, Wizard might be getting a cut of potential deals. Most people in the industry were taken by surprise, and some even mocked the deal—can’t Sony just buy a ticket to the conventions and talk to people themselves?

Here are my initial thoughts on the deal:

1. Who’s doing the work?
Is Sony sending someone to all of these conventions? My gut tells me no. If they’re smart, Sony would’ve structured the deal so as to make Wizard do all the work. Let Wizard host the pitches, sort through the materials, and present to Sony what they think is best. In reality, this puts Wizard in a scout role, with Wizard only getting a cut if Sony chooses to sign a deal with any of the creators Wizard presents to them.

2. Size
For some creators, this could be a good thing. San Diego Comic-Con and the other conventions in and around Los Angeles. aren’t getting smaller. It’s easy for your property to get overlooked. At the smaller Wizard World shows, newer creators might be able to be seen and heard.

3. Location
Somewhat related to the size of the conventions, for some aspiring creators, it’s a lot easier to make it to a Wizard World show. There are a lot of them in cities both large and small across the country, and many are within easy driving for many people. As mentioned in the press release, it might be easier to find some hidden gems.

4. Cost
If Sony has structured the deal as I envisioned it above, then there’s little risk to them. Make Wizard do the work, and pay them a finder’s fee if they find something good. Also, it’s probably cheaper for many aspiring creators to go to a Wizard World show than to travel out to Comic-Con, WonderCon, or New York Comic Con.

5. Contracts
There are obvious benefits to this deal for Wizard and Sony, but creators need to pay attention. Particularly, pay attention to what you’re signing. Will Wizard be incorporating anything relating to this in the Artist Alley or Exhibitor forms? I doubt it; such agreements should be treated separately. But, it’s best to be overly cautious. If you go to a pitch meeting and are offered a deal, be wary of signing anything without reviewing it and/or having an attorney review it. You shouldn’t feel pressured or put on the spot to sign a deal. As I’ve said elsewhere, pay attention to the details – Who gets money? Who gets rights to what, and for how long? Are there timetables to make things happen? Do you get your rights back if nothing happens? These are just a few of the questions to keep in mind.

     Overall, the partnership between Wizard World and Sony is surprising, and I will be following the details of it closely. Hopefully, it might lead to some breaks for lucky and talented up-and-coming creators. 

Friday, February 9, 2018

Practical Tips for Protecting Public Domain Characters

Editor’s Note: The following post is adapted from an article that appeared in the Entertainment & Sports Lawyer. You can find the original article here.

So, you own the rights to a character that is about to fall into the public domain under Copyright law. When this happens, you will lose control over the character and anyone is free to come along and create new works using your character. Is there anything you can do to protect and retain control over your character?

Currently, U.S. copyright law protects original works of authorship created on or after January 1, 1978 (i) for the life of the author plus 70 years, or (ii) 95 years from first publication or 120 years from the date of creation, whichever is shorter, for works made for hire, anonymous and pseudonymous works.[1] Once a work’s term of protection has ended, the work enters the public domain and is available for anyone to use.[2]
Looking solely to copyright law, it does not appear that there is anything you can do to extend the copyright protection for a character other than to have the character continually evolve over the years. However, “a copyright affords protection only for original works of authorship and, consequently, copyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.”[3]

In 2014, the Seventh Circuit court of appeals addressed the issue of whether a continually evolving literary character should fall into the public domain only after all works containing the character have entered the public domain, or if parts of the character can pass into the public domain whenever the original publications reach the end of their protected terms.
The case in question was Klinger v. Doyle Estate, Ltd.,[4] and it dealt with the character of Sherlock Holmes. Klinger co-edited an anthology of Sherlock Holmes stories written by modern authors, but he did not obtain a license from the Doyle estate to do so because he believed the works to be in the public domain.[5] The record in the case established that all but ten of the Sherlock Holmes stories had passed into the public domain.[6] However, his publisher at the time paid a licensing fee to the Doyle estate after being contacted.[7] Klinger and his co-editor then created another anthology for a different publisher.[8] Due to the Doyle estate’s demand of a licensing fee and threats to block publication of the book, Klinger’s publisher refused to publish the anthology unless Klinger obtained a license.[9] Klinger sued for a declaratory judgment that the Sherlock Holmes stories were no longer protected by copyright and that the few stories that were under copyright lacked “sufficient originality to be copyrightable.”[10] The Doyle estate argued that complex characters like Sherlock Holmes and Dr. Watson whose complexities are revealed across many stories should remain protected until the final story protected by copyright falls into the public domain.[11]  The court, however, ruled that only “original elements added in the later stories” should remain protected by copyright law.[12]

In light of the recent Sherlock Holmes case and other cases finding similar results,[13] what options are available to protect a character about to fall into the public domain? Realistically, there are not a lot of options. Your character has been protected for decades, and soon it will belong to the public. As the court in Klinger pointed out, extending copyright protection further shrinks the public domain making it more difficult to create new work,[14] and perpetual copyright protection would violate the Constitution, which authorized “copyright protection only for ‘limited Times.’”[15]  
However, there are two methods by which you may retain some control over your character, or, at a minimum, limit the ability of others to capitalize on the character. The two methods are through any trademark rights you may have gained in the character and through continued, official exploitation of the character.
The first method is to register all applicable trademark rights for your character. While this will not prevent others from using a character in the public domain, it should limit their ability to advertise and exploit the character. If your character’s name doubles as the title of a continuing publication, such as a comic book, then newcomers might be prevented from using the character’s name in the title of a competing publication. If you exploit your character on merchandise, then you should be able to prevent others from doing the same with the character. Personally, I do not believe using trademark rights to totally protect your character is possible. However, there have been instances where a character’s image fell into the public domain and trademark law protected it from exploitation,[16]  but overall, many feel that expanding trademark rights to wholly protect characters that have entered the public domain goes against the public policy goals of granting limited copyright protection.[17] In light of this, and this author’s beliefs on the matter, trademark rights to a character should only be allowed to prevent exploitation in areas unrelated to the character’s original medium that has entered the public domain. For example, if the Doyle estate has a valid trademark on Sherlock Holmes hats, then while a newcomer could exploit Sherlock Holmes in literature and other possible narrative mediums, the newcomer could be prevented from creating Sherlock Holmes branded hats. 
The second method is not exactly law related, but business oriented. One way to protect against unwanted exploitation of public domain characters is to establish a licensing regime to exploit your character. If your character is popular enough, you should be able to retain some control over the exploitation of it by establishing stories, books, movies, etc. that would fall into an official canon for the character. By designating specific works that will be officially recognized as continuing to tell the story of the character, you will be able to distinguish the official works from unofficial, derivative works. This method of creation and exploitation should encourage fans of the character to seek out and consume works that build upon and expand the official world of the character.
Ian Fleming Publications Ltd. appears to be doing a great job of doing what I described above. Ian Fleming passed away in 1964. The rights to many of his literary creations, including James Bond, now belong to Ian Fleming Publications Ltd. This entity continues to work with authors to create new James Bond stories in various media, including new books[18] and even new graphic novels.[19] In 2016, the company partnered with IDW and hired noted comic book writer Warren Ellis to create an “‘Official Continuation’ of the Bond of the book.”[20] By commissioning and approving new works that enhance and expand the stories of James Bond, Ian Fleming Publications Ltd. has set up a clear system to exploit new works and protect the character of James Bond when Fleming’s original Bond novels finally fall into the public domain.
In my opinion the Doyle Estate took too long before implementing this approach to make it effective. Over the years, new stories were released, including some by Arthur Conan Doyle’s son, but none were officially recognized as continuing Holmes and Watson’s adventures. In 2016, the Estate did authorize a writer to release a new Sherlock Holmes book in 2011.[21] It was the first book officially endorsed by the Arthur Conan Doyle family in 80 years.[22]
Even though you do not want to hear that others might soon be able to exploit the character you have rights to, it is going to happen. Your character and stories will fall into the public domain. However, if you take actions beforehand, you may be able to exert some control over the fate of your character before others start using it.

[1] Circular 15a, Duration of Copyright, 1, U.S. Copyright Office, (last visited May 24, 2016)..
[2] Kurtz, Leslie A., The Methuselah Factor: When Characters Outlive Their Copyrights,  11 U. Miami Ent. & Sports L. Rev. 437, 446 (1994).
[3] Silverman v. CBS Inc., 870 F.2d 40, 49 (2nd Cir. 1989).
[4] Klinger v. Doyle Estate, Ltd., 755 F.3d 496 (7th Cir. 2014).
[5] Id. at 497.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 498.
[10] Id.
[11] Id.
[12] Id. at 501.
[13] See Klinger, 755 F.3d at 500-01; See also Kurtz, The Methuselah Factor, at 447.
[14] Klinger, 755 F.3d at 501.
[15] Id. at 503.
[16] See Frederick Warne & Co., Inc. v. Book Sales, Inc., 481 F.Supp. 1191 (S.D.N.Y. 1979).
[17] Kurtz, 11 U. Miami Ent. & Sports L. Rev. at 450-51.
[18] About Us, (last visited June 15, 2016).
[19]Vargr hits shelves – James Bond Comic Issues #1 Out Now, Nov. 4, 2015, (last visited June 15, 2016).
[20] Bailey, Benjamin. Warren Ellis Talks Bringing Ian Fleming’s James Bond to 2016,, (last vistited July 13, 2016).
[21] A New Sherlock Holmes Story: The House of Silk b Anthony Horowitz, (last visited July 7, 2016).
[22] A New Sherlock Holmes Story: The House of Silk b Anthony Horowitz, (last visited July 7, 2016).

Thursday, January 25, 2018

Convention Season Tips

           Now that comic book conventions occur in every month of the year, I’m not sure when convention season officially kicks off. But, since I’m presenting at two conventions next month, I’m going to say February is the start of convention season – at least for 2018. If you’ll be at Wizard World St. Louis, I’ll be doing a panel on fan art on Saturday, February 3. I’ll also be presenting two panels at Capricon 38 in Chicago. One discusses the legal issues surrounding creations of works and adapting works from one medium to another, and it will be on Friday, February 16. The other panel is an overview of intellectual property, and it will be on Saturday, February 17. If you’ll be at either of these shows, please stop by.
            Since I’m declaring it the beginning of convention season, I thought I’d list some of my convention tips. Mind you, these are things I’ve discovered over the years that enhance my enjoyment of a convention.

1. Walk Artist Alley

Whenever I go to a comic book convention, the first thing I do is walk to artist alley. I love browsing the art and comics people are selling, and I want to get an idea of what’s available for purchase. Also, if you’re looking for original art, getting there early gives you the best shot at buying something unique from a creator. My favorite piece of original art I’ve bought was purchased within 10 minutes of walking on to a show floor.

2. Go easy on the prints

Over the years, I’ve bought a lot of prints from artists – too many of which are still in poster tubes. These days, I try to focus on original art, but I still end up getting a few prints per show. If I buy a print these days, I try to buy prints only from artists who have worked on the book/title/character of the print they’re selling, and I try to get it personalized in some way. 

3. Take a chance on an unknown (to you)

While you’re walking the show floor and artist alley, take some time to listen to the creators pitching their works. If one strikes your fancy, take a shot at buying their book. It means a lot to them, it usually doesn’t cost too much, and you might discover something neat before everyone else. Even if you’re afraid to risk your cash on self-published books, it’s a low risk to take a chance on a creator-owned book published by Image, Dark Horse, Vault, or any other number of small publishers.

4. Cash is king

Most exhibitors take credit these days, and it’s a good thing. You can only bring so much cash with you. However, cash is still king on the show floor, and if you can pay in cash, you might be able to negotiate yourself a nice deal.

5. Go to a panel

If you’re sick of walking the show floor and spending money, go to a panel. Most conventions have panels throughout the day discussing anything from who’s the greatest comic book artist to how to protect your intellectual property (naturally). There should be something you’ll find interesting.

Bonus tip: Bring a snack

You’ll be walking a lot, and you’ll likely be standing in a lot of lines. Convention food can get pricey, and healthy options are limited. Pack a small nutritious snack such as granola bars, nuts, fruit, or crackers to keep up your energy.

           The thing I love about conventions is the passion on display. People go to conventions because they love something that brought them there, be it a comic book, video game, movie, TV show, or wrestler. Take it all in, and make sure to have some fun.