This is the second post discussing Bill Willingham’s announcement that Fables is now in the public domain. You can find the first post here.
Previously, I discussed the problems surrounding the actual act of dedicating a work to the public domain before its copyright term has expired. Today, I will discuss some of the other problems arising from Willingham’s announcement.
The second problem we encounter when discussing Willingham’s statement is that you have to be the owner of the works in order to dedicate them to the public domain. Willingham claims that Fables is a creator-owned work, and that he is the sole owner of it. The few records at the copyright office I skimmed are inconclusive, with the majority showing DC Comics and Willingham as co-owners and some registered solely in DC’s name. In a response to Willingham’s declaration, DC stated that the works are still protected by copyright, and they are not in the public domain.
Willingham claimed in his post that DC breached their agreement by claiming ownership in his works, and that he alone is the sole copyright owner. Without knowing the exact details of the agreement between Willingham and DC, it is impossible to know with certainty if Willingham owns all of the rights to Fables.
If he doesn’t, then it seems likely that he would not be able to dedicate Fables to the public domain. Comics are a joint work, and absent an agreement to the contrary, joint authors share rights equally in the work. I do not believe it is possible for one author to dedicate a work to the public domain without the other joint author’s consent. It is actually a tricky question that needs more research as to whether a joint author could dedicate their own part of the work to the public domain, for instance the scripts Willingham wrote.
Finally, even if he did have the right to dedicate his works to the public domain, he may be in breach of contract by doing so. If DC has the publishing rights, and he damages their ability to exploit them, then, depending on the contract language, he could be found to be in breach of the agreement. There are probably other types of legal claims, based in tort law, that DC may also be able assert against Willingham.
In a follow up comment Willingham reportedly made on Twitter, he stated that the rights he has granted do not “include the right to reprint previously published Fables books and stories.” A fundamental aspect of the public domain is that other people are free to do whatever they want with the work. If people are not free to exploit the work however they want, then it’s not really in the public domain. This comment suggests he is acknowledging DC may have some rights to the works, either via copyright or contract. It also suggests that what Willingham is doing is not really dedicating Fables to the public domain, but an attempt to encourage others to make derivative works.
Willingham’s attempt to dedicate his work to the public domain during a dispute with his publisher is actually quite fascinating. Whether he can do so, and whether he will be successful, may take some time to play out. Either way, I am following this closely.