Sunday, October 18, 2020
Sunday, September 27, 2020
I recently watched the new film Enola Holmes on Netflix. The film stars Millie Bobby Brown as Enola, the younger sister of Sherlock Holmes, and it is based on a series of books written by Nancy Springer. It was an entertaining film, but, while I was watching it, I couldn’t help thinking about copyright law and the public domain.
A few years ago, the editor of an anthology featuring newly written Sherlock Holmes stories sued the Doyle Estate after it demanded licensing fees. I covered this lawsuit, Klinger v. Doyle Estate, Ltd., in a previous blog post on the interplay of public domain law and trademark law. After watching Enola Holmes, I wondered if it faced similar issues.
The Doyle estate filed a lawsuit against Netflix, Nancy Springer, and the book publisher for copyright infringement. The estate claims the novels and movie infringe upon the last 10 remaining Sherlock Holmes stories still protected by copyright. Specifically, the Estate argues the Enola Holmes stories infringe Sherlock Holmes character traits introduced in the last 10 stories. The case is still pending.
While I won’t discuss the pending case in depth, I do want to briefly discuss the public domain. Generally speaking, any creative work that is no longer subject to copyright protection is in the public domain. Once in the public domain, others are free to use the work as they see fit. Works entering the public domain after the term of copyright protection has expired is the bargain granted for the exclusive rights granted to the author during the term of protection.
Enola Holmes is a great example of how this bargain should work. Arthur Conan Doyle created Sherlock Holmes, a character beloved by many for over a century. Most of the Sherlock Holmes stories are in the public domain, and all will be in the public domain on January 1, 2023. Doyle and his estate have had decades to benefit from the publication and licensing of his stories. Springer created a new character set in Sherlock Holmes’ world and new tales drawing on the Holmes legacy. Had she done so while all of the Sherlock Holmes stories were still protected by copyright, it would likely have been an infringement of Doyle’s copyright rights. However, if the stories Springer created drew from public domain stories, then it is perfectly legal.
The creation of new and unique creative works that take from and build upon works that are in the public domain are at the heart of copyright law and “promote the progress of … useful arts.” Enola Holmes embodies this goal.
 U.S. Constitution, Art. 1, Sec. 1, Cl. 8.
Tuesday, August 25, 2020
Before picking up Empire of Monsters (affiliate link), I was aware of Warren Publishing, and I had heard of Vampirella, Creepy, and Famous Monsters of Filmland, but I knew nothing about James Warren, the man behind the magazines. Bill Schelly’s book was an interesting and informative biography that appealed to me in ways I wasn’t expecting.
Prior to starting my legal career, I had a brief career in journalism. Warren’s experiences as a New York-based magazine publisher in the '50s and '60s really appealed to my interests in the history of journalism and media. As Warren was building his business, his path crossed many well-known media personalities in New York, including photographer Diane Arbus, whose photo he published, famed crime scene photographer Weegee, and Gloria Steinem, whose career in publishing started at Warren Publishing. Terry Gilliam, of Monty Python fame, was an assistant on Harvey Kurtzman’s Help!, a magazine that Warren published.
Warren was also inspired by Hugh Hefner, early in his career. In fact, an obscenity charge was filed against him for publishing a less risqué Playboy knockoff.
Schelly does an excellent job describing Warren’s rise, fall, rise, and fall over the decades. He tells the fascinating story of a man who was driven to succeed in publishing, constantly looking for the next big thing, and desirous of, and a bit indulgent in, success. The portrait Schelly paints of Warren shows him to be a complex and conflicting character. He could be both friendly and gregarious and also secretive and combative. Schelly’s excerpt of Warren’s speech at the New York Comic Art Convention in 1971 is both hilarious and depressing in its skewering of the industry and fans and in its relevance today.
Warren’s magazines hosted a who’s-who of comic creators over the years—sometimes launching them, and sometimes harboring them from industry burnout. Over the years, names such as Frank Frazetta, Bernie Wrightson, Neal Adams, Archie Goodwin, Alex Toth, Wallace Wood, Louise Simonson (Jones), and many others worked for Warren.
I particularly enjoyed the behind the business aspects of this book. Reading about how Warren built his publishing business, how he had to juggle finances to get his magazines started, and during lean years keep them afloat, was fascinating. It was also interesting to read about the variety of deals Warren would make with his writers and artists regarding pay and returning original artwork. I found a particular passage illuminating. During an interview later in life, Warren describes creative people as childlike and lacking in business sense. While on its face, the comment might seem mean spirited, he was merely acknowledging that creative people have a different mindset than business people, and the two may clash because of it. He also recognized his role in the business as someone who creates work for creatives.
The book recounted many of Warren’s legal issues, including how Warren tried to protect the title Eerie before another publisher could use it. (It recounted this as a copyright problem, but it really should have been a trademark issue.) It was also revealed that Warren did not have his writers and artists cash checks with a “work-made-for-hire” notice on the back, as was common at DC and Marvel. Instead, he just acted like he owned the works and would republish at will. There were also interesting tales involving a copyright lawsuit filed against Warren Publishing by Harlan Ellison, and, after Warren Publishing collapsed, a chapter on Warren’s lawsuit against Harris Publishing over the rights to Vampirella and other intellectual property assets.
Empire of Monsters is a well-researched and well-written account of an interesting figure in comic book and magazine publishing. It is a worthwhile read for anyone seeking to learn more about these industries and this era of publishing.
Saturday, July 18, 2020
Note: This part two of my posts exploring forming a union in the comic book
industry. Part I can found here.
Part III of this series will address my final thoughts on the issue.
 See The Comics Journal, No. 42 for a comrephensive look at these discussions.
Saturday, June 20, 2020
I’ve seen an interesting discussion lately online regarding the Punisher logo, and its use by police departments. As the Black Lives Matter protests continue in the wake of George Floyd’s death and shine a light on aggressive police tactics and use of lethal force, there has been a call for Marvel to prevent police officers from wearing the Punisher logo. In particular, Comic Book Resources ran an article highlighting some of the difficulties Marvel would face in trying to use trademark law to prevent police officer usage of the logo, and AIPT ran an article highlighting websites that sell unlicensed Punisher police-themed goods. Both of these articles raise interesting points, and when read together, show the difficulties in enforcing intellectual property rights.
For those unaware, the Punisher is a Marvel character introduced in The Amazing Spider-Man 129 and was created by Gerry Conway, John Romita Sr. and Ross Andru. He was originally introduced as a Spider-Man antagonist, but quickly gained in popularity. After witnessing his family murdered by the mob, he becomes a vigilante who frequently kills criminals. At best, the character can be called a vigilante anti-hero; at worst, the character can be called a serial killer.
Despite this, the character and his signature skull logo remain popular, and there are many instances of police and military wearing the logo. The reason people are calling on Marvel to do something is because police officers’ duty is to serve and protect. Wearing the Punisher logo conveys a troubling message.
As was mentioned in the Comic Book Resources article, trademark law primarily protects against consumer confusion in commercial usage. If the individual police officers are not selling merchandise bearing the Punisher logo, then Marvel has limited recourse. Marvel would not be successful arguing traditional trademark infringement, and they would have to rely on alternative theories, such as dilution. This theory argues that someone else’s usage of the trademark would harm the value and goodwill of the original trademark owner. However, for personal use, it is harder to argue than if it was adopted by an entire police department. Additionally, the First Amendment provides strong protection against trademark claims where freedom of speech is concerned. While the use is questionable, police officers wearing the logo could be considered an expression of free speech.
Copyright law could also be used to protect the logo, as it is an artistic work. However, once again, copyright law usually focuses on commercial activity, but non-commercial use could be found to be an infringement if it does not qualify for fair use and harms the marketplace for the copyrighted work.
Marvel would face a difficult task in trying to enforce its trademark or copyright rights against individual police officers. However, as noted in the AIPT article, Marvel could remove many unlicensed products from the marketplace that bear the Punisher logo. Manufacturing and selling product that bears the Punisher logo is clearly commercial use.
The question would then focus on whether the products being sold, such as a Punisher logo incorporating a blue line emblematic of police or Blue Lives Matter, would constitute a fair use under copyright law or a form of speech protected by the First Amendment. These are difficult questions to answer, but I believe they would not be. The First Amendment protects many types of speech, but commercially exploiting someone’s copyright or trademark by adding minimal design elements would be unlikely to qualify without a strong speech component.
For example, there was a recent case involving the use of Matt Furie’s Pepe the Frog by Infowars in political posters supporting Donald Trump and using the MAGA slogan. In an initial ruling denying summary judgment, the court stated that Inforwars’ use of the character could not be considered a fair use as a matter of law and would need to be decided by a jury. See Furie v. Infowars, LLC, 401 F.Supp.3d 952 (C.D. Cal. 2019). The case was later settled with Infowars paying Furie $15,000.
Finally, Punisher co-creator Gerry Conway has launched a campaign to “reclaim” the Punisher logo from police and military appropriation. Conway has teamed up with artists of color to create and sell t-shirts bearing the Punisher logo, or similar designs, to raise money for Black Lives Matter. The campaign can be found here: https://www.customink.com/fundraising/black-lives-matter-skulls-for-justice-presented-by-gerry-conway. So far, Marvel has not taken a position on Conway’s campaign, but it could be considered an infringement of Marvel’s intellectual property rights. While I will not go into a detailed analysis of each shirt, the outcome would depend on the creativity involved in the designs and the message they convey. At first glance, I believe many of the designs could qualify for First Amendment protection, but it would be decided on a case-by-case basis. Conway’s campaign will end on June 30.