A Fan's Case For Putting Batman & Superman In The Public Domain

from the great-idea,-sadly-not-gonna-happen dept

Tue, Jul 19th 2016 9:44am — Leigh Beadon

Let me start by saying it's obvious that this isn't going to happen. Nevertheless, let's consider the idea: should DC put its flagship superheroes in the public domain? Alex Schmidt over at Cracked (the comedy site that has caught our attention with its understanding of these kinds of topics before) makes the compelling case that they should in a new video that's worth watching:

The crux of the argument is that these iconic characters currently appear to be in a bit of a death spiral. Man of Steel and Batman v. Superman met with a mixed-at-best response from fans and critics, and while both made good money in the big picture, they also showed some worrying signs — like failing to catch up to Marvel's superhero movies (which was the whole point) and breaking records of audience drop-off between the much-hyped opening night and the following week (when word begins to get around that the movie sucks). Schmidt is not the first to attribute this to the creators' disdain for the characters: Zack Snyder has openly expressed his lack of real interest in Batman and Superman, and made it clear that he doesn't really understand their appeal. Writer David Goyer has made similar comments. And the same people are already hard at work on the follow-up Justice League films, which seem unlikely to break the pattern of mediocrity.

So, the proposal goes, DC needs to do something drastic to revive the franchise, and the most drastic and positive thing they could do would be to put the characters into the public domain (where they were supposed to be as of a few years ago, were it not for the infamous Mickey Mouse copyright extension). Opening up the characters to other creators would result in a huge variety of new work involving them, and still wouldn't stop DC from working their own massive film franchise, especially by making use of all the later storylines and details about the characters that would still be under copyright.

Of course, there are a few problems with Schmidt's argument. He points to other big public domain characters like Robin Hood, Dracula and Sherlock Holmes, and cites Holmes especially as an example of a character who has been revived to massive popularity through adaptations by other creators. But that example is flawed, because Holmes only recently entered the public domain (mostly), and both the Robert Downey Jr. movies and the insanely popular BBC series actually did license Holmes from the Doyle estate. DC has even felt some of this pain itself — the video points to the League Of Extraordinary Gentlemen comics as a prime example of new creators using public domain characters, but those comics actually did face various release issues due to the questionable copyright status of Victorian-era characters including Holmes. Robin Hood and Dracula are both excellent examples though, and they chart a course for the direction Holmes is likely to go now that the estate's control has been eroded.

Now, as I said at the outset, this obviously isn't going to happen — it flies directly in the face of the copyright orthodoxy that rules Hollywood and so much of our culture. We can instead settle in for several more years of middling cash-grab films that irritate existing fans of the characters and fail to create new ones. But it's great to see a site like Cracked — a pillar of the fandom communities that fawn over these beloved superheroes and lend a serious critical eye to every execution of them — recognize that loosening the reins would be a much, much better idea.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: batman, competition, copyright, creativity, public domain, superman
Companies: dc

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Mason Wheeler (profile), 19 Jul 2016 @ 8:27am

...but of course they're not listening.

Just look at what they've actually done. Everyone hated Dawn of Justice for being way too dark and ugly. I think HISHE put it best: "He [Batman] killed people, and you [Superman] forgot to smile!" People came out of the theater with the strong impression that they'd just watched a couple of impostors pretending to be Superman and Batman, even though they obviously weren't.

The studio's response? They released an R-rated "special edition" with even more dark and ugly! That's simply showing outright contempt for the fans. As one reviewer I saw put it, (loosely paraphrased,) "I really hope this project fails, and fails hard. Don't get me wrong, I would absolutely love to see a well-done Justice League-based film universe. But that’s simply not what DC’s recent movies are setting up!"

At this point, I think Cracked might have the right idea. If the people who are supposed to be taking care of the characters are going to be this abusive, to them and to the fans, why should they not lose custody of them (to strain a metaphor somewhat) in favor of those who will love them rather than continue to harm them?
[ link to this | view in chronology ]
- Ninja (profile), 19 Jul 2016 @ 10:11am
  
  Re:
  They succeeded rather well when they rebooted Batman to his last trilogy (although I'd say that the second movie was just pure gold). Then they decided the same formula applied to everybody else. And we got a goddamn Superman that seems to be suffering of severe depression instead of the one built on the comics that used bright blue and red as a symbol of hope and justice. I can't wait to see a dark, gritty Wonder Woman. Or.. Heck, screw them.
  
  We can say a word or two regarding this about Spiderman and how.. Meh, never mind.
  [ link to this | view in chronology ]
  - Mason Wheeler (profile), 19 Jul 2016 @ 10:31am
    
    Re: Re:
    Wonder Woman? Where? All I saw was some actress cosplaying as Xena.
    [ link to this | view in chronology ]
  - Rich, 19 Jul 2016 @ 10:41am
    
    Re: Re:
    The first two were great, but the third was terrible. They should have called it, "Bane Makes a Speech."
    [ link to this | view in chronology ]
    - Mason Wheeler (profile), 19 Jul 2016 @ 10:56am
      
      Re: Re: Re:
      The first one was OK. The second... meh. Can anyone really say it would have been so widely acclaimed if it hadn't been for Heath Ledger's death right around release time? They blatantly took the plot of the first Spider-Man film and threw it in a blender, mixing in a heavy dose of Grimdark Sauce, and poured out the resulting glop as a script.
      
      What, you don't believe me? OK then, which film am I talking about?
      
      All is not well in our fantasy version of New York City; it's being terrorized by an insane supervillain! Our hero (who is an orphan) confronts him, only to be foiled by the villain, who takes the opportunity to preach his twisted philosophy that people are evil and wretched inside, and can't be relied upon.
      
      As the conflict escalates, the villain ends up setting up a truly diabolical situation, forcing our hero to choose between saving the life of the woman he loves, or another target of great worth to the public. But in the end, he loses, not because of anything specific the hero does, but because his philosophy is defeated: when it comes down to it, given the opportunity, the people choose to be noble rather than give in to their baser urges. At this point, the hero's victory is simply a foregone conclusion.
      [ link to this | view in chronology ]
      - Ninja (profile), 19 Jul 2016 @ 12:22pm
        
        Re: Re: Re: Re:
        The same story can be told in different ways. And yes, the Joker was something else in that movie. Still, it was simply awesome.
        [ link to this | view in chronology ]
      - Rich, 19 Jul 2016 @ 12:46pm
        
        Re: Re: Re: Re:
        Sure, if you go abstract enough, you can make any two movies sound the same.
        [ link to this | view in chronology ]
        
        Mason Wheeler (profile), 19 Jul 2016 @ 1:21pm
        
        Re: Re: Re: Re: Re:
        All right, then, make The Dark Knight sound as similar to Star Trek IV: The Voyage Home as I did for Spider-Man, without doing injury to the truth.
        [ link to this | view in chronology ]
  - Anonymous Coward, 19 Jul 2016 @ 1:46pm
    
    Re: Re:
    Batman IMO is at least an interesting character, especially when actually done as "the dark knight" and not a children's cartoon.
    
    Superman is just boring and flawed. Not flawed as in being an imperfect character with depth. Just flawed as a lasting concept
    [ link to this | view in chronology ]
    - John85851 (profile), 20 Jul 2016 @ 10:13am
      
      Re: Re: Re:
      This is the (lazy) argument people have been making about Superman for ages.
      
      Superman is supposed to be the aspirational ideal hero that everyone looks up to. Okay, this might make the character himself had to write for, but maybe the focus should be on someone else
      That's actually the premise for the Supergirl TV series: she's flawed and still learning how to be a hero, but Superman is her example.
      
      The same argument could be made for the original idea behind Star Trek: The Next Generation. The main characters were supposed to be the ideal crew following the perfect ideals of Starfleet. Wow- that's got to be boring to write. And, sure, most of season 1 was average to poor quality simply because the writers couldn't figure out what to do. But by the third season, TNG had far surpassed the original series.
      The bottom line- a lot more drama comes from "perfect" characters trying to deal with villains and the environment than seeing Superman (or Picard or Data) become dark and depressed because it's easier for writers.
      [ link to this | view in chronology ]
- Anonymous Coward, 19 Jul 2016 @ 12:43pm
  
  Re:
  Have to disagree with you there fella, I like the darker tone of dawn of justice, as did quite a few other people, Batman should be dark, very dark, butt Batman killing need to be explained as it such a departure from the expected norm, hopefully it'll be covered in a future movie.
  The main issue with this film is it was near incomprehensible, even to fans of both heroes.
  
  Hopefully they'll have the stones to keep things dark and dirty, just pay more attention to the script and narrative.
  [ link to this | view in chronology ]
  - Mason Wheeler (profile), 19 Jul 2016 @ 1:24pm
    
    Re: Re:
    Ben Affleck’s version of Batman is just all wrong, and he, more than anyone else, is the main character of this movie, so that really causes trouble right from the get-go. But this isn’t any Batman any fan would recognize. Batman has been called the Dark Knight, but this guy isn’t any sort of knight at all; he’s a brutal thug, plain and simple, and Superman was absolutely right to call him on his tactics.
    -- The dark before the Dawn (of Justice), emphasis added
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Jul 2016 @ 2:47pm
      
      Re: Re: Re:
      If both characters were sunshine and light they'd have been hard(er) pressed to make a "vs." movie. At least this way they didn't go for mind-control tropes.
      
      That said, I'd happily watch 60's Superman being curb stomped by a utility belt-wearing Barney. Some might find it even more jarring though.
      [ link to this | view in chronology ]
jupiterkansas (profile), 19 Jul 2016 @ 10:09am

Terrible idea. The last thing we need is even MORE comic book movies.

but yes, they should already be in the public domain.
[ link to this | view in chronology ]
- pegr, 19 Jul 2016 @ 10:28am
  
  Re:
  Ralph Bakshi put it best (though he was referring to television).
  
  Why is television considered a medium? Because nothing on it is rare or well-done!
  [ link to this | view in chronology ]
David, 19 Jul 2016 @ 10:15am

Think of the consequences!
Making Superman public domain would be one step towards recasting square-face Christopher Reeves with Cristiano Ronaldo (they even share the same initials).

I am so not ready for that.
[ link to this | view in chronology ]
Anonymous Coward, 19 Jul 2016 @ 10:19am

If they were in the public domain, and someone actually tried to use them, then they'd just get into fights over whether particular parts of the character were in the public domain. If you wanted to use the Batcave, Batmobile, a particular villain, etc., you'd have to make sure that all of those were ALSO in the public domain before using them, or risk getting sued anyway.
[ link to this | view in chronology ]
- Anonymous Coward, 20 Jul 2016 @ 9:33am
  
  Re:
  Copy protection lengths, the opt out nature of copy protection laws, and the lack of need to register with a database that people can use to confirm the status of a copy protection all make it more difficult for us to determine if something is or isn't in the public domain. The ambiguity surrounding copy protection status is a result of bad laws.
  [ link to this | view in chronology ]
Kevin T, 19 Jul 2016 @ 10:56am

Putting the characters in the public domain would be wonderful, but unfortunately trademark law would prevent anyone from doing anything commercial with the characters, as trademark has essentially become a way for corporations to have a perpetual "copyright" through trademark bullying over public domain material.
[ link to this | view in chronology ]
- cpt kangarooski, 19 Jul 2016 @ 3:36pm
  
  Re:
  No, the trademarks would become generic once the characters entered the public domain. Take a look at the Dastar case and also the basic reasoning of the Shredded Wheat case.
  [ link to this | view in chronology ]
Kalean, 19 Jul 2016 @ 11:23am

Good article, excellent argument - minor quibble. Zack Snyder is no longer creative helm for the DC Cinematic Universe - they've turned that role over to Geoff Johns, fabled Green Lantern writer who can do no wrong*.

*Except completely removing Kyle Rayner's growth as a character so we could get Hal Jordan back.
[ link to this | view in chronology ]
Jeff Patterson, 19 Jul 2016 @ 1:12pm

I'd love to see a fan-driven legal precedent: If a copyright holder reboots, reimagines, or retcons a property or character to the extent that core characteristics are rendered unrecognizable by a reasonable person (i.e. Superman as Emo Space Jesus; Kirk listening to Beastie Boys), then previous versions automatically become public domain.
Like the philosophers in Hitchhiker's Guide, this will keep the lawyers on the gravy train for life building loopholes. The Elseworlds Clause lets DC make more Steampunk Batman. A Continuity Provision allows for modern takes on existing characters (like Sherlock), provided they do not, by their nature, erase previous iterations.
This last is the most egregious of DC's sins with its banner characters. They not only gave us a comic book Superman who was, by all credible standards, a horrible character, but did so in a manner than explicit stated that previous versions did not exist. It was an insult in the guise of edgy storytelling.
If reboots carried such a significant cost, companies would think carefully about giving fanboy editors authority to endlessly regurgitate new versions of characters that were never broken.
[ link to this | view in chronology ]
Anonymous Coward, 20 Jul 2016 @ 9:39am

Some stupid moron on the Youtube comments said the followin

"asdfers - 1 week ago
Agreed, lets all be anarchists."

In response to

"brotalnia - 1 week ago
Corporations will always be greedy, it's in their nature. That's why you shouldn't set up a system where they're allowed to buy politicians and write their own laws."

asdfers sounds like one of the stupid shills we see around here. No one is saying that we should be anarchists. We do believe in having laws. We are simply saying we don't want sociopathic corporations to selfishly and uniformly write those laws. We want our laws to be written democratically based on what's in the public interest and not based on what's in corporate interests. That's very different than being an anarchist.

The fact that IP shills would even resort to such a stupid stupid comment only serves to reveal the dishonest nature of IP extremists.
[ link to this | view in chronology ]
- Anonymous Coward, 20 Jul 2016 @ 10:46am
  
  Re:
  sp/uniformly/unilaterally *
  [ link to this | view in chronology ]
anya, 7 Jul 2019 @ 3:01am

the whole problem is that warner brothers ex's would not keep their hands off the films and just let the directors do their jobs. they were so desperate to best marvel they screwed up the films. this is what happens when suits get involved where they should not have.

if they had not meddled while the films were being made i feel the films would have been much better and made as much or more money then the marvel films did, but as it stands now we will never know.
[ link to this | view in chronology ]