Breaking News! Bill Willingham's Fables are now in the Public Domain

 The one thing I didn't think I'd do on this blog is cover breaking news. Bill Willingham, the writer and comics artist, has placed his creations in the Fables comic line in the public domain. The reason? Well, the publisher of the line, DC Comics hasn't been playing fair with Willingham in regard to their contractual obligations, and failed to pressure Willingham into giving up his creative control of the Fables intellectual property. 

Willingham has released a public statement explaining his decision, which can be read in full at These Foolish Games

Fables Press Release

Subject: Fables Enters the Public Domain

15 September 2023

By Bill Willingham

For Immediate Release

The Lede

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.
[...]
When I first signed my creator-owned publishing contract with DC Comics, the company was run by honest men and women of integrity, who (for the most part) interpreted the details of that agreement fairly and above-board. When problems inevitably came up we worked it out, like reasonable men and women. Since then, over the span of twenty years or so, those people have left or been fired, to be replaced by a revolving door of strangers, of no measurable integrity, who now choose to interpret every facet of our contract in ways that only benefit DC Comics and its owner companies. At one time the Fables properties were in good hands, and now, by virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.

Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

            I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

This isn't a unique issue, it's extremely common, there are many well known cases but to pick just a few, recently Disney has been embroiled in an ongoing dispute over failure to pay royalties prompting Alan Dean Foster to pen an open letter to Disney airing the issue publicly. "Some of you doubtless are by now aware of my complaint that Disney has failed to pay royalties on books owned by companies they have purchased: Twentieth Century Fox (the first three ALIEN novelizations) and Lucasfilm (the novelization of STAR WARS and SPLINTER OF THE MIND'S EYE). With reluctance, this ongoing imbroglio has been made public in order to generate a response. Turns out I'm not the only author being similarly shafted. SFWA is involved and details of the disagreement went viral within twenty-four hours. You can read the details in many places, on numerous sites. For those who are interested, here is my letter of complaint to Disney:" According to Foster's personal site updates, the `imbroglio` was settled on the 1st of May 2021.

And while the lawsuit punishing the Internet Archive for its digital lending policies was eating up headlines and exposing several authors for less than ethical views on libraries, Stephen King and other authors were engaged in another lawsuit against their own publishers Penguin Random House and Simon & Schuster, who were attempting to merge. The reason for so many authors lining up to support the United States Attorney General was because they feared this merger would further strengthen the publisher's power at the expense of the authors.

I fully sympathize with Willingham and applaud his decision, as a method of resistance to corporate control, is brilliant. It is also not without precedent, last November the mathematician and musician Tom Lehrer publicly renounced his copyright on all of his songs:

I, Tom Lehrer, individually and as trustee of the Tom Lehrer Trust 2007, hereby grant the following permissions:All copyrights to lyrics or music written or composed by me have been permanently and irrevocably relinquished, and therefore such songs are now in the public domain. All of my songs that have never been copyrighted, having been available for free for so long, are now also in the public domain. In other words, I have abandoned, surrendered and disclaimed all right, title and interest in and to my work and have injected any and all copyrights into the public domain.The permission granted includes all lyrics which I have written to music by others, although the music to such parodies, if copyrighted by their composers, are of course not included without permission of their copyright owners. The translated songs on this website may be found on YouTube in their original languages.Performing and recording rights to all of my songs are included in this permission. Translation rights are also included.In particular, permission is hereby granted to anyone to set any of these lyrics to their own music, or to set any of this music to their own lyrics, and to publish or perform their parodies or distortions of these songs without payment or fear of legal action.Some recording, movie, and television rights to songs written by me are merely licensed non-exclusively by me to recording, movie, or TV companies. All such rights are now released herewith and therefore do not require any permission from me or from Maelstrom Music, which is merely me in another hat, nor from the recording, movie, or TV companies involved.In short, I no longer retain any rights to any of my songs.So help yourselves, and don’t send me any money.

The disclaimer statement of Lehrer's official music page. 

 Though, as far as I am aware, Lehrer's decision was not motivated by corporate overreach. 

Of course, it is no surprise that I view the actions of Willingham and Lehrer favourably, in particular with Willingham's statement I found myself nodding vigorously while reading the section marked philosophy 

Philosophy: In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

I am a believer in the abolition of property intellectual and physical, however I am not a dreamer. I know for that to prove feasible we'll have to build a new society where exploitation and scarcity are also abolished, and that this will take time and effort. So for the interim, I think Willingham's proposal would be a rational compromise while we work towards the new dawn. It would also protect artists from corporate hitmen that alarm so many. I felt compelled to send Willingham my support as I'm sure he'll be under a Mammoth's weight of pressure from DC Comics and its owners to recant. Here is the text of my e-mail.

 Hello

I've just read your press release concerning your decision to give Fables to the public domain. I congratulate you on your decision and the clever way you've overcome the predatory ways of the DC representatives. I'm am archivist of social history and have fallen foul of the copyright system on many occasions while trying to share rare articles that have come into my possession so I share your frustrations.

I also found your copyright reform proposal to be a rational one in keeping with the spirit of Victor Hugo and the other original copyright advocates who wanted to check the power of business interests over art. I'm of the opinion that at some point in time the scales shifted and now most intellectual property agreements are designed to empower a corporation at the expense of the author, illustrator, musician and so on.

I am part of several groups that have been advocating for international copyright reform and your stance has met with approval and I hope will galvanise others in the future to take similar steps.

I look forward to your future endeavours and wish you luck in your fight to get what is owed to you by DC.

Warmest regards

I'll be watching this story very, very closely.

Kurosawa and the Public Domain

 

This week I crossed another film off my to watch list, Akira Kurosawa's Rashomon. My Blu-ray was the release by the British Film Institute (BFI) and I cannot fault the production, the image was sharp and the sound clean. My thoughts on the film itself? Well, there are a thousand other places for that, the film isn't public domain, so this isn't the place for another one. The film opened with a little info title stating that the work was reproduced with the full consent of the copyright holders which surprised me a bit, Rashomon was released in 1950, and a court ruling in Japan concerning compliance with international standards on copyright law stated that all Japanese films and possibly all films worldwide released in 1952 or before are in the public domain. 

If, like me, you're curious, sadly Godzilla was released in 1954. I checked that premiere date the second I learnt about that fact. I have no evidence, but I doubt the cut-off date being set before the release of Godzilla was a coincidence, in addition to being a cultural icon and symbol of Japan's media industry Toho the studio behind the big lizard is extremely powerful, connected and super aggressive about protecting its commodities. 

But 1950 comes before 1952, so shouldn't that make Rashomon public domain as well? Sadly not, there's another caveat to be taken into account. In 2006 the Japanese courts passed judgement on making pre-53 films public domain as a way of simplifying the transition to the Berne convention life+70 years approach in regard to releases during the old copyright system, in particular there was controversy surrounding a law passed in 1971 that set protection at 50 years after release, whereas today the term is 70 years after release for cinematic works. However, this did not end the matter once and for all. 

In 2007 due to a lawsuit involving Toho (what a surprise) over non-Toho approved releases of Akira Kurosawa's early movies made for the studio the Japanese courts ruled that for works published up to 1971 the previous legal code on copyright applies which set protection for a work at 38 years after the death of the director. Akira Kurosawa died in 1999 so take that into account and his early works won't be public domain in Japan until 2037. This whole thing is frankly ridiculous, a law that was change in 1971 which itself was changed in the 2000s is still somehow legally binding. 

So, what does this mean? Well, another win for big studio companies and a massive headache for everyone else who wants to make use of Japanese cinema and still remain on the good side of the law. The only positive of the ruling is that it ruled that the director alone is the original copyright holder of pre-1971 films, so we don't have to waste time looking up score and writing credits. I've come up with a rough formula to help determine public domain work regarding Japanese cinema (not legal advice)

1. 1985 was 38 years ago, so find a director who died then or before that date
2. Once established looked through their catalogue of work and make two lists, one for pre-1971 works and the other for pre-1953 works
3. Obtain legal representation anyway, as Japanese copyright law is heavy-handed and actively hostile to concepts such as fair use and derivative work, as Shinobu Yoshida found out after receiving a 2-year prison sentence (suspended for five years) and a million yen fine for let's play videos and anime episode recaps.

Copyright is a confusing slog of arbitrary decisions by powerful entities to promote and enrich other powerful entities. Someday I'll write about the Soviet Union's copyright history, at present I'm still trying to work out the timeline.

Death of the Author

 

When the topic of copyright term lengths come up or Friday nights as I call them, certain ideas and expressions start to repeat. One common one is the idea that terms should last for the life of the author and no longer. After all, a corpse can't cash royalty checks, and as I've discussed earlier, inheritance can be a protracted and vicious thing. So, why not let the decision of the Allmighty be a chance for wiping the slate clean?

A popular response is alarm at the hypothetical prospect of some big corporation knocking off some rising star to cut them out of the negotiations and save themselves the chore of humouring the artists concerns over the franchising of their intellectual property. I've heard variations of this for years, last night Neil Gaiman had a variation that posits the murder of J. K. Rowling in 2001. I used to think these were jokes and responded appropriately, polite and light laughter before moving onto some other topic. Furthermore, I've since learnt that this is a genuine fear that some people have and take very seriously and use it to motivate their positions on this subject.

I'm sorry, but I am confident in declaring that that will not happen if such a system were adopted. Given my obvious hostility to private capital, don't misunderstand me, my views do not rely on amoral cost and profit driven entities suddenly developing moral scruples or fear of punishment by a legal system that already privileges them. No, the reason why no corporation will off someone in this scenario because that would completely destroy the framework of Intellectual Property. In this scenario, the corporation arranging the murder doesn't get the artist rights, the rights cease to exist. The benefit would be no upfront fee, negotiation period and revenue splitting agreement, the cost would be no new IP from the artist and everyone else on the planet has the same opportunity you have and can crowd out the market with competition.

IP can be hard to think about, since it's fundamentally an abstraction. An author's story isn't the book on your shelf, that's the medium in which the story is communicated to the audience. I find it helpful to think about it like this, oil is a physical commodity, it's a resource that is created naturally through a process that takes millions of years. Say a large deposit of oil is discovered under a stretch of land, and that land is owned by someone. An oil company wishes to purchase access to that oil and the exclusive right to use it commercially, the owner will not sell, or won't sell for a price the company is willing to pay. Inheritance has been abolished, so once the landowner is dead the land becomes free for anyone. The oil company arranges an "accident" and in the process they have saved themselves the fee, but cost themselves exclusive access to that oil, other companies can tap into the field and drain it and sell their oil in direct competition with the company with the hitman on the payroll. It's possible that this company will still turn a profit off the oil they managed to tap and sell on the market, but the lack of exclusivity has prevented them from a higher yield of profit. In the UK we call this behaviour cutting your nose off to spite your face, it means actions that remove an irritant but cause far more damage.

You may be thinking this is a strange way of explaining the process if you're familiar with the frequent campaigns of murder and forced evictions that oil and gas companies carry out in parts of the world such as the Nigerian delta, but that's a consequence of property, not its absence. These horrific campaigns are happening with the direct knowledge and support of the authorities, who on paper should be intervening to stop them. And they are not removing populations to make the land and its valuable resources free for anyone to exploit them, they're seizing that land for themselves. After the removal of the local inhabitants and their resistance and witnesses, the land is legally given to the company to exploit. Property rights have done nothing to protect these people, on the contrary it has heavily incentivized human rights abuses and assaults on them. If property were to be abolished, these communities would be far safer because there would be nothing to gain from funding a war of extermination in remote areas. Property is theft, it also in many cases murder.

It would be the same thing in the creative economy. Yes the company doesn't have to cut Rowling or King or whoever royalty checks, but now every other company and independent can churn out rival product. What makes IP so lucrative as a commodity that high sums are exchanged is the right to exclusive profit.

When J.K. Rowling signed with Bloomsbury to publish Harry Potter that property was off limits to every other publisher and when Warner Brothers to make the movies, no one else can unless the deal is ended, and they secure Rowling's agreement. If anything, I can see contract killings as more likely to happen under the current system of copyright, where terms last decades after death and contracts can be drawn up transferring exclusive rights to remuneration and commercial activities until the rights expire. Alan Alexander Milne died in 1956, yet for decades since that time Disney had exclusive rights to Whinnie-the-Pooh as a commercial asset until last year when that character entered the public domain in the United States. Death is not an obstacle to corporate profiteering, and contracts and Wills can be challenged by entities that can afford the best legal representation. Multiple creators have lost the rights to their creations while still alive and able to pursue resistance, see Jerry Siegal and Joe Schuster, the creators of Superman. 

So, no, there is no danger to the lives of creators if the term of copyright were to be set to life. But hey, if you're still convinced then let's shift the debate to a fixed term of copyright regardless of the living condition of its creators, that would erase even the remotest chance of this happening.