Adventures in Fan Fiction - Lord of the Rings Edition

                Recently, a few decisions were issued involving an unauthorized sequel to The Lord of the Rings (“LOTR”). In one, a court found that Amazon and the Tolkien Estate did not infringe upon the author’s book. In the second, the court found that the author’s book infringed upon the rights of the Tolkien Estate.

                Demetrious Polychron filed a lawsuit in April against Amazon, the Tolkien Estate and many others. In the filing, Polychron claimed that he wrote a sequel to LOTR called The Fellowship of the King. He sent copies to Tolkien’s grandson asking for the work to be published, and he did not receive a response. He subsequently published the work himself, and he intended to publish a seven-book series. Polychron’s lawsuit claimed Amazon’s Rings of Power series copied elements from his works and constituted copyright infringement. He sought at least $250,000,000 from the parties involved for copyright infringement.

                In a summary judgment ruling, the court found that Amazon’s Rings of Power did not infringe upon Polychron’s book. In fact, the court found that because Polychron’s book was an unauthorized derivative work based on LOTR, he was precluded from bringing a copyright infringement claim.[1] In analyzing the work, the court reiterated the rule that copyright owners have the exclusive right to prepare or authorize derivate works based upon their preexisting work. Polychron’s work used characters from LOTR and was a direct continuation of the work. As such, it was a derivative work and not entitled to copyright protection[2].

In the second case, the Tolkien Estate filed a copyright infringement lawsuit against Polychron. The court recently issued an permanent injunction forbidding Polychron from making further derivative works based on LOTR and to destroy any existing copies of the current works.

This case continues a fairly strong line of cases showing that unauthorized derivative works will likely be found to infringe upon copyright. When a work utilizes characters, worlds, and plot elements from a previous work, it runs the risk of a copyright infringement claim. The risk significantly increases when the work is being sold for profit and directly competes with the market for the original work. The only derivative works that have been found to be fair use are those that tend to provide commentary on the original. A work that is just a continuation of the story in the original will likely not be a fair use.

If you want to write fan fiction, it is important to be aware of these cases, and if possible, structure your work in such a way as to avoid a copyright infringement claim.

Final notes about this case:

1)      Polychron received a copyright registration for his work. This is a reminder that the copyright office does not usually weigh the merits of whether a work is an infringement when processing registrations.

2)      Polychron sold his work. Selling your fan fiction for profit raises the chances of a lawsuit.

3)      Suing the original copyright owner for infringement of your unauthorized derivative work rarely turns out well.

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[1] See page 10, Order Granting Defendants’ Motions to Dismiss the First Amendment Compaint, 2:23-cv-02831-SVW-E.

[2] Id. at page 12. 

Comic Book Recommendations - 2023

            It’s the end of another year, and it’s time to recommend some of the comic books I read this year. As I mentioned in previous years, I tend to primarily focus my recommendations on creator-owned titles, these will mostly be graphic novels/trade paperbacks, and they may not all have been released this year.

As always, I’ve provided links where I can. Links to Amazon will be affiliate links. Anywhere else is not. Even so, if you’re intrigued by these books, try to buy them from your local comic shop or book store. You can find previous years’ recommendation by clicking on the corresponding year: 2020, 2021, 2022.

Fairlady, vol. 1, by Brian Shirmer and Claudia Balboni

A fun fantasy comic with a detective bent. Each issue is self-contained with hints pointing to a larger narrative.

Love Everlasting, vol. 1, by Tom King and Elsa Charretier

An interesting riff on romance comics of yesteryear with a neat twist. I always look forward to picking up the next installment in this series.

Know Your Station, by Sarah Gaily and Liana Kangas

Set on a space station in the future, Know Your Station is a sci-fi/horror series with class-conscious bent.

Dead Eyes, vol. 1, by Gerry Duggan and John McCrea

Readers of the blog may remember my posts (here and here) about this book when it first came out and found itself in trademark trouble. After changing the title from Dead Rabbit to Dead Eyes, the series was released. It’s a gritty, mobster-inspired tale set in Boston following the exploits of an old criminal returning for one last score.

It’s Lonely at the Centre of the Earth, by Zoe Thorogood

One of the most original books I read this year, the art and layout push against the norms of stereotypical comic book, and the subject matter, the author’s mental health during a turbulent year, is compelling and challenging.

 

Dead Legends II, by James Maddox and Gavin Smith

A sequel that picks up after the first Dead Legends (a glaring omission from last year’s list), Dead Legends II is  a martial arts book that features excellent action-oriented art and a solid story of revenge, honor, and family.

 

Andre the Giant: Life and Legend, by Box Brown

This book chronicles the life of the wrestler Andre the Giant. The art may be deceptively simplistic-looking, but the story alternates between funny and heartbreaking. An excellent biographical comic.

Fables of the Public Domain - Part 2

 

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.[1] 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.”[2] 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.

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[1] https://billwillingham.substack.com/p/our-amazing-sunday-afternoon-update

[2] https://www.comicsbeat.com/dc-comics-fables-not-in-the-public-domain/

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.

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[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 https://petapixel.com/2016/11/22/1-billion-getty-images-lawsuit-ends-not-bang-whimper/.

Who owns the copyright in AI-generated works? - Part 2

 

                A federal court recently issued a ruling stating that works created by AI are not eligible for copyright protection. There was much rejoicing. Unfortunately, this question is far from being settled, and there are still ways for AI-generated works to receive protection.

                The case[1] involved a piece of art generated by an AI program. The plaintiff, Stephen Thaler, argued that the AI program should be listed as the author of the work, and Thaler should be the owner of the copyright because he owns the program. The court found that copyright law only grants protection to works created by humans. This is the first court ruling on whether an AI-generated work can be subject to copyright protection, and, if it is not appealed, could be influential. It should be noted, however, that the decision is not binding on other courts.

                While this is a good first step, the court did leave open areas that are sure to be fought over later. In its discussion, the court said that human involvement in creating a work could entitle the work to copyright protection. Currently, based on Copyright Office guidance, this is limited to selection and arrangement. So far, there is no bright line regarding how much involvement will be necessary to make an AI-generated work copyrightable. The courts, or Congress, will eventually have to set forth the framework for how much human involvement is needed to enable copyright protection for an AI-generated work. So far, entering prompts into a keyboard and allowing the computer to create something is not enough human involvement.

                The Copyright Office is going to have a lot of trouble with this in the future. The two major instances that addressed AI works so far have voluntarily identified use of the AI in the work. If people do not declare use of an AI program in the work, then the Copyright Office will be unlikely to catch it and refuse the application. This will likely create lots of problems going forward. For instance, you could have people attempting to enforce their copyright for a work that shouldn’t be entitled to copyright protection. Also, if someone believes a registration was improperly issued, people will challenge the copyright registration to try and invalidate them.

                As I mentioned in my previous post on copyright ownership in AI-generated works, and above, only time will settle these issues. We are getting closer to having some guidelines around copyright ownership for these works, but there will likely be some more twists and turns before we know where it stands.

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[1] Thaler v. Perlmutter, No. 22-1564 (D.C. Dist. 2023).

Book Review: How to Self-Publish Comics: Not Just Create Them

                Josh Blaylock’s How to Self-publish Comics is a practical, informative book. It offers great insights into the nitty gritty details of running a publisher.  The copy I read was the fifth edition, and it was released in 2019. A lot has changed since then. Nevertheless, any reader looking for more detailed insights on how to run a publisher will find it interesting.

                The book consists of two parts. The first, written by Blaylock, primarily focuses on the ins-and-outs of running a comic publishing business. Blaylock walks people through the steps of creation, printing, distribution, invoicing, and sales/marketing. Along the way, he provides interesting commentary and insights, and he offers practical tips for aspiring publishers. It even provides access to forms, examples, and access to templates/form generators. The second part is written by Tim Seeley and discusses the realities of being a comic book artist.

                Both Blaylock and Seeley have written in engaging styles, and the book is a quick read. At times, Blaylock will opine and prognosticate on the history of the industry and its future. Some of these topics will be familiar to those who follow the comic book industry, and many of them have remained the same for some time, but some have already proven wrong. Then again, Blaylock couldn’t have predicted the turmoil of the pandemic and how it shook up the industry, and the current economic headwinds facing the industry.

                The only area where Blaylock stumbles is when discussing some legal topics. His discussion of copyright and trademark law is sometimes inaccurate, and in one instance regarding federal trademark registration and the ® symbol wrong. Hopefully, if another edition is released, this will be updated and corrected.

              Overall, How to Self-publish Comics is and enjoyable and informative read, and anyone considering self-publishing comics should read it.

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A few thoughts on #comicsbrokeme

 

                A few weeks ago the #comicsbrokeme hashtag was trending on social media. I, like so many others, was both saddened and unsurprised by the stories I read. The comics industry is notorious for low pay, bad hours, and poor treatment, and the stories shared recently only show that things have not improved.

                As an attorney who works with comic book creators, seeing these stories frustrates me and, to some extent, breaks me too. I have seen firsthand some of the deals publishers, studios, and others offer comic book creators, and too often they are terrible. Flippantly, it is easy to say that the only way to avoid a bad deal in comics publishing is to not sign any deals. Creators can get screwed over at every stop along the creative process: by other creators, by agents, by publishers, and by producers/studios. If only the bad deals were just work-made-for-hire deals, it might be easier to handle, but they have even pervaded “creator-owned” comics. Even with lawyers, agents, and other advisors counseling them on the strengths and weaknesses of deals, creators still often accept bad deals—mostly because they feel they have to in order to advance their careers and because they don’t feel like they have other options.

I wish I had answers, but the only answer I have is to say no, which I have discussed on this blog previously. And I know that saying no can be incredibly hard for many creators. Perhaps the best way to protect yourself, at least in the creator-owned space, is to know what matters the most to you and not compromise on it. Do you want to make sure you retain ownership and control over your work]? Don’t compromise. Don’t give publishers an interest in your copyright. Don’t let others make decisions about your work without your permission. Is it fair pay? Figure out ways to structure the deal so that you are a more even footing with other creators, publishers, etc. Do you just want to make sure you get paid? Then make sure you get paid upfront, or on a fixed schedule, at a rate you can live with. These are not certain solutions, but they tend to avoid some of the worst heartbreak I see—at least in creator-owned.

For work-made-for-hire comics, things won’t improve until publishers are forced to improve working conditions. It may happen from guilt; it may happen due to a change in the law. Like I said above, I don’t have great answers—other than saying no. Say no to poor pay. Say no to unrealistic deadlines. Say no to terrible treatment.

Unless something changes, the only way to protect yourself is to stand up for yourself, and hopefully, by standing up for yourself, you may inspire change.