Friday, September 29, 2023

Fables of the Public Domain - Part 1


                Bill Willingham threw a curveball at the comic book industry when he recently announced that he was dedicating his Fables comics to the public domain.   In his blog post, he stated that he was doing so because of disputes with DC Comics, the publisher of the Fables comics. This announcement has brought up numerous interesting issues, and I will try to address them below.

The first issue that comes up is whether he can dedicate his works to the public domain. This is a tricky question for a few reasons.

First, there is no firmly established mechanism to prematurely donate works to the public domain. Works usually only enter the public domain once their term of copyright protection has expired. The term of protection can vary, but the general rule is life of the author plus 70 years.

 The legal community seems split on whether someone can truly put their works into the public domain before the end of copyright protection, with many viewing any early dedications to the public domain being more akin to an agreement not to sue for what would otherwise be copyright infringement. Mostly, this is because there is nothing preventing someone from later recanting it.

Nevertheless, there are ways someone can attempt to dedicate their works to the public domain. A public statement declaring a work to be in the public domain is one method.  Another would be to place a statement on the work at the time of publication. There are licenses that work similarly, such as Creative Commons 0. Others have put their works into trusts, which can function according to the artist’s wishes. This is the approach Tom Lehrer took when released his songs into the public domain.

Even though some question whether a work can be dedicated to the public domain early, statements that works are in the public domain can be held against the creator. For instance, a few years ago photographer Carol Highsmith, who has dedicated her photos to the public domain,[1] sued Getty Images after receiving an invoice from a monitoring service working on behalf of the photo agency. Highsmith’s images had been uploaded into Getty’s for-profit licensing program, either by Getty or by users,  and the monitoring service claimed Highsmith’s use of her own photo violated their licensing rights. . Highsmith sued Getty after discovering that thousands of her photos had been uploaded into their program, and Getty was continuing to charge users a licensing fee. The court dismissed many of her claims, and it appears likely that it was due to the fact her works were dedicated to the public domain.[2] Unfortunately, there was not a written decision in the case explaining the rationale for the decision; so, it is an assumption that the photos’ status as being in the public domain played a part in the decision to dismiss. It’s also worth noting that she dedicated a certain amount of her works to the Library of Congress via a document titled “Instrument of Gift”, which stated, “I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.” You can see more of her collection here along with the rights and restrictions language

Next week, I will post about some of the other issues involved with Willingham’s pronouncement.

[1] There is some confusion in the reporting as to whether she donated them for public use, and retained copyright, or to the public domain. Unfortunately, we never received a ruling in the case on this point.

[2] See case files of Highsmith v. Getty Images, Inc., 1:16-cv-05924 (SDNY 2016). See also