Originally published at: Bill Willingham's plan to put his comic book series "Fables" in the public domain gets murky | Boing Boing
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IANAL yet, but that filing confuses me. It lists DC as “employer for hire”. This would seem to indicate that Fables falls under the “work for hire” part of copyright law. However, if that were the case, there would be no need to transfer the copyright to DC because they would be considered the author for copyright purposes, and not Willingham. In other words, they would unquestionably own the copyright. But my understanding is that Fables was not a work done for hire. DC didn’t commission it. DC didn’t hire Willingham to write it. This isn’t like Marvel Comics relationship with Steve Ditko, in other words. My understanding was Willingham created and wrote Fables, and then contracted with DC to publish it. So that would seem to support the argument that that filing is a transfer of rights to DC. But then why does it show DC as “employer for hire”? It’s all very confusing. Par for the course with copyright law.
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this is my favorite appellation yet. i guess he “twxtd”?
in that spirit may i suggest “fablez”
problem solved?
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When Willingham announced this, I wondered if anything really was being put in the public domain, since his publishing agreement covered the existing work - he talked about derivative work in comics and other media, but I immediately suspected DC might have some relevant trademarks that would mean a “Fables” video game or movie would still be off the table. Which, it turns out, they do.
I wonder if, by “putting it in the public domain,” whether all he did was instead give DC all (or at least more of) the rights to the work and undermine his publishing contract.
I’m not a lawyer either, but I have heard that it’s possible for a contract to designate a work as a work for hire even if it was created by the author and not the publisher. Apparently, some small-time publishers have done this regularly, though writers’ organizations discourage signing work-for-hire contracts unless you’re writing for somebody else’s IP.
Now, the question is what Willingham’s contract with DC actually says and whether the contract supercedes the copyright filing. Or is there a provision that DC gets all rights to the specific comic books while Willingham still owns the Fables IP in general?
DC is claiming they own all of it. Now, that doesn’t mean they’re correct, but that’s their claim. If it were a work for hire, they would be right. But if it were a work for hire, that copyright filing would not list Willingham as the author, not even a co-author, and there would be no need to transfer any rights to DC. With work for hire, the author is whoever hired someone else to do the work. It’s just like commissioning a painting. Now, if Willingham is the original copyright holder, and he transferred full rights to DC, then he still can’t put it all in public domain. However, he will have an opportunity 35 years after the transfer to reclaim the copyright as the original author.
The comics industry has always been a mess when it comes to this stuff. The companies don’t want to make their artists and writers full employees, because then they’re responsible for following all kinds of labor laws and offering them benefits, etc. Oh the horror. So they classify them all as independent contractors, usually. But the companies also want to fully own all the IP, so they insist everything is all work for hire. Sadly, courts have typically gone along with this. And if you’re a young artist trying to break into the business, what choice do you have? These disputes have been going on literally since Siegel and Shuster created Superman.
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Getting a copyright transfer AND claiming that something is a “work made for hire,” is actually pretty common. Of course the publisher would rather have their WMFH claim stand up, because then they have more rights, but in case it doesn’t, they have the assignment to fall back on. The claim that this is a WMFH sounds unlikely to succeed in this case, but record companies have been making similar claims for decades.
Actually, it is reasonably clear that a painting commissioned from an artist should NOT be considered a work made for hire. If you are an employee, the work that you do as part of your job is a work for hire. However, under US copyright law, a work commissioned from a creator can only be a WMFH if it is also one of a short list of types of works, and a painting is not one of those types.
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But presumably you could now create a work that’s in the Fables universe – i.e. Bigby Wolf is the sheriff of Fabletown, some of the characters live in the Mundy world, etc etc (it’s been a while since I’ve read the series, and even that only a few volumes). That is, you could create a spinoff or something. Previously even referring to a humanoid character as “Bigby Wolf” would have run you afoul of DC, since that’s clearly a Fables version of a public domain character (the Big Bad Wolf in Little Red Riding Hood), but now it seems like you can do that.
You’re right, generally. There is a way a painting could be a work for hire, but it’s not relevant to this discussion. So I used a bad example.
I enjoyed Fables and other Willingham comic books but Bill Willingham seems to be a Libertarian which tends to mean he doesn’t think things through very well.
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