Going Public About the Public Domain

All right, writer types... in light of the public domain case against the Arthur Conan Doyle estate, this week's roundtable for writers is about just that -- public domain law. We sought out a few of our favorite new pulp writers to get their thoughts on the matter.

What is public domain law getting right?

Percival Constantine: Keeping these properties viable for future generations. There are lots of great characters that, if not for the public domain, might just be left to wither and die. And there are many great stories we may not have gotten. One example that immediately comes to mind is the League of Extraordinary Gentlemen. If not for the public domain, these characters might be owned by competing corporations, which would have made one of the greatest graphic novels completely impossible to create without paying hefty licensing fees.

Lee Houston Jr.: Not being a lawyer, as far as I know, it's protecting the integrity of the original material and keeping anyone else from claiming the classics are actually their own work. The rules here in America concerning public domain media properties state that you must include the original credits in your presentation, which is why you still see those within the cheap DVDs of today. When Ted Turner was on a color the black and white films kick for a while, he could call the colorized version "his" while the original was still public domain.

What are the problems that public domain law is creating?

Percival Constantine: The real problem is a lack of consistency across the world. Characters that are public domain in one country aren't in another, which restricts distribution in those countries and, in my opinion, creates an environment in which piracy can thrive.

It's also not always clear what is and isn't public domain. For example, many of Edgar Rice Burroughs' Barsoom and Tarzan books are public domain and can be downloaded freely from Project Gutenberg or other sources. But John Carter and Tarzan themselves are not public domain. These situations can create a lot of confusion and lead to incidents in which someone can end up being sued for a story they published without really knowing they were breaking the law.

Lee Houston Jr.: In light of the Doyle estate lawsuit, obviously who can use what when, and how should it be used "properly". The rules are different in England, so the BBC got the Doyle estate's permission to do the modern "Sherlock". Yet CBS, after being turned down by the BBC for an American license to the property, realized Holmes was public domain, and is now doing their own version of a current detective with "Elementary". There are too many unauthorized uses of classic characters as it is, which dilutes the genre pool for the "official" works continuing the legends. The new comic book adventures of The Shadow are authorized, but I'm totally surprised that Dynamite Comics hasn't entered the discussion yet concerning their work with the Edgar Rice Burroughs properties.

Warner Brothers and Disney cannot help the fact that the earliest appearances of their characters have fallen into public domain, yet between continually lobbying lawmakers for changing the existing copyright laws and producing new material, they maintain overall ownership of Bugs Bunny, Mickey Mouse, etc. Can the same be said of the Burroughs and Doyle estates in regards to their properties? Should they have the same rights as the studios or not? After all, Disney certainly put their moniker all over their animated Tarzan efforts, the attempted Broadway adaptation of same, and the recent John Carter movie.

Whom do you think public domain laws should protect, and how far into a creator's family lineage should that protection continue?

Percival Constantine: Public domain laws should protect the work and the public. As for how far into a creator's lineage should the protection continue, that's a difficult question to answer. I really don't see any problem with the old definition of the author's life plus fifty years. With advances in medicine, that's long enough to possibly extend to the creator's grandchildren.

For the most part, though, the current extensions in copyrights aren't to the benefit of the creators—they're to the benefit of the corporations that have bought these characters from the creators.

If say, Superman were to fall into the public domain, there would be nothing stopping Warner Bros. or DC Comics from still making movies, TV shows, and comic books about the Man of Steel. And with their financial strength, they could market their versions far more fiercely than competing ones.  If Siegel and Shuster's heirs wanted to make more money off their ancestors' creation, then they could also produce new stories as well (and I see nothing wrong with them having to actually put in some work to earn that Superman money, instead of just being lucky enough to be related to the creators). But it also means that we could get some interesting and original takes on Superman from other creators.

Lee Houston Jr.: Very good question, considering that some day all of us current writers' estates will hopefully be facing similar dilemmas. Immediate family for sure. It might be stretching things a bit too far extending it to grandchildren and beyond, but that is for others to decide.

How can public domain law be fixed to best protect creators AND ensure the perpetuity of timeless creations for new generations?

Percival Constantine: That's another tough one. I'm not a lawyer, but I think there should be international standards and clear cut definitions of what constitutes public domain and what doesn't. This is part of a larger problem involving copyright law as a whole. Right now, the laws are skewed in the favor of corporations, not in favor of the creator. The upcoming Wolverine movie will no doubt make a whole lot of money. How much of that money goes to Len Wein and John Romita, who created the character? How much of it goes to Chris Claremont and John Byrne, who spent a lot of work developing some of the most recognizable aspects of the character?

Corporations already have an unfair advantage over the average creator. They don't need help from the government in terms of copyright extensions that serve no benefit to the creator and only exist to enable the corporation to continue to milk a creation decades after the creator's death.

Lee Houston Jr.: Above all else, the laws should continue to protect the integrity of the original works. I cannot picture any version of Sherlock Holmes wearing Bermuda shorts and riding a skateboard while chewing bubblegum and jamming to his iPod. Yet the current BBC version does prove that some properties, if handled properly, can work as well in a more modern setting besides their original time periods. One thing a lot of people keep forgetting is that a lot of the material we consider period pieces today were actually originally written as contemporary (for their times) tales.

Overall, this is an issue that we'll just have to wait and see how it plays out in the courts, especially considering that the copyright laws are somewhat different overseas than they are here in the United States.

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All illustrations used in this article are from the public domain, in case you're curious.