Should "Action Comics #1" have entered the public domain after 56 years?

[Ascended]

Funny to see this thread brought back from the dead.

One thing no one seems to really be considering here is, even if the early issues did become public, could another company realistically use them? If all you had to work with was early issues of Action and Superman, could you still use clones? Cyborgs? Aliens from planets other than Krypton? Beings from other dimensions? Evil businessmen? Even if you used original characters, DC still introduced clones, cyborgs, aliens, other-dimensional beings and evil businessmen into Superman's mythos first and those wouldn't be public domain yet. Could DC say "this story uses an alien from another planet, and none of that was in Action #1 so we're suing you!" What about the idea that Lois knows who Clark really is? Could you use the "Clark is who I am" mentality?

If you had Clark Kent act like the "real" person, could DC sue you for that? Sure, they'd have to prove that you're portraying Clark as the real person, but DC would be interested in maintaining as much of the monopoly as possible, and they likely have deeper pockets and better lawyers than Image or Dark Horse or other small time publishers.

Superman has been in constant publication for almost a century, with thousands upon thousands of books to his name and countless more appearances. Only a small fraction of that would be public domain. How many lawyers would you have to hire to comb through each issue, making sure that nothing broke DC's copyright for the stuff they still owned? And after all that, after limiting yourself to the few things the early issues used, after making sure that you're not inadvertently breaking copyright by introducing something.....would you still turn enough of a profit to make it worthwhile? Because I can pretty much promise you, DC would be breathing down your neck every step of the way waiting for an excuse to bury you under a mountain of legal accusations.

[phantom1592]

You're not the only person (in this thread, and in the thread for a duplicate poll I started on another forum) who seems to feel that I should have had my Poll include an option of: "Copyrights should not have any time limits in the first place!" (In other words: "Action Comics #1" should stay copyrighted forever.)

I admit I didn't see that one coming! I somehow thought comic book fans in general would be eagerly looking forward to the day when DC lost its stranglehold on Superman, so that a wide range of fans with literary and/or artistic talent could start cranking out their own variations of the core concept and competing with one another in the open market.

Put me into that category as well. I REALLY don't see any legitimate reason why a copyright should ever expire. DC has spent 75 years making Superman the #1 premier household name for a Superhero... What right does ANYONE else have to tell them not to angry when that image is slapped on every window, statue, used car lot, porn theater or politician button?

He's theirs... they can water things down and screw up their own brand and it doesn't mean anything. Why should others get that right? There is no inherent artistic RIGHT to use MY stuff for your profit...

Frankly there have already been so many clones, copies, parodies, winks at Superman over the years... what's the point of invalidating a copyright? There are so many loopholes that as long as you aren't using SUPERMAN/Clark Kent in exact name and costume... you can get away with just about whatever you wanted to.

People mention Zorro, Robin Hood, and Dracula... Yeah, they have been abused ot the point that they are worthless. What was the last good thing that any of these characters have accomplished?? I do think it would be better if people with a legitimate interest (personal or financial) had an overarching presence in their use.

[Demas]

I just now checked up on this thread for the first time in months. I see that by the time the voting stopped, nearly half of us (including yours truly!) favored the idea that the lifespan of "old copyrights" (such as Golden Age comic books) should have been left at 56 years. That was far and away the most popular opinion.

On the other hand, the least popular option was the suggestion that the current rules for "old copyrights" (a maximum of 95 years) are the right way to handle things! One fan embraced that position; everyone else gave it the cold shoulder!

Does anyone else care to cast a vote to show where you think the "magic number" should be for the maximum length of a U.S. copyright on old comic books (and other material)?

The poll is defective since there's no "forever" option except under the catch-all which you've decided to characterize as a "cold shoulder."

Moreover, you've mischaracterized the law.

Note that with the extensions, the original rights holders were given termination rights AND extensions on filing for those termination rights AND the public received numerous fair use exemptions AND international treaties harmonized copyright more and more.

The ignorance of the original rights holders doesn't really play. Copyright had been extended twice BEFORE 1938, so rights holders could contract AROUND and future extension of copyright since it was a foreseeable possibility. Nonetheless, Congress took pity on such people (despite international law and legal scholars calling them crazy) and issued termination rights with the extension, meaning the original rights holder could force the rights to revert back to them at an appointed time. This gave them a second bite at the apple to renegotiate the sale OR get the rights back. This is legally idiotic. Imagine selling five houses for fair market value on land that will revert to the government in 25 years. You profit off the initial sale. The buyer takes a bath on four of the houses which turn out to be unsellable money pits. The buyer doesn't get to ask you for a refund. However, the buyer successfully rents the fifth and final house and starts to make improvements so that he can rent at a higher and higher rate. After decades of investment and improvements the house is worth many fold the original five houses sale value combined. In five years, the land and house will go to the government as expected, but the government decides it likes the fact that people are developing and improving land so they increase the time another 20 years... that makes sense until they add the termination rights. The termination right means that in five years you get the house, with all its improvements and huge rent potential back, just because you thought it was going to go to the government in 5 years. Now you can't pay the upkeep or run such a fancy house, but you can run it into the ground so you get to extort a huge payday out of the buyer so that they don't lose the house and you don't crash it into the ground. Thanks government! Nobody thinks this scheme makes any sense, but whatever.

Anyways. That's what all the recent lawsuits have been about. Whether the termination rights were proper, whether they were properly filed, whether they gave them up for a price, etc. The ultimate result was WB/DC proved they sold their termination rights decades ago and everything since has been an attempt to frustrate that agreement.

The biggest reason reverting to the public domain is pointless is the huge expansion of fair use.

Basically, short of selling a directly competing product with the exact same character, you are unlimited in what you can do. You can make and profit off a porno starring and advertising Superman. You can make a movie, make a comic book, make an animation, or whatever you want without profiting. You can profit making things ABOUT Superman. You can make your own competing Superman (as long as he's a little different), etc. Whereas 70 years ago Captain Marvel was once found infringing on Superman, today, Sentry, the Plutonian, Invincible, etc. are all free to flood the market. The public domain is made far richer by DC having economic incentive to maintain Superman as a standard bearer for all this derivative fair use to spring from, than for Superman to fall into disrepute once everyone can use him and no one has real economic incentive to do so.

Right now we're getting more meaningful Superman media than compared to even the most popular pieces of public domain like Sherlock, Pan, John Carter, or Tarzan. Nothing in public domain comes close to the combined corporate and fair use of Superman today, and without the corporate spine for all the fair-use to free-ride on, that all goes away in the public domain and people move on to Batman, Marvel, etc.

[Lorendiac]

Funny to see this thread brought back from the dead.

I just stumbled across it again, and decided it felt like enough time had passed that there might be some interesting new discussion (and new votes) to be found if I bumped it back up with a new comment. Darned if it didn't work! (There were 22 votes a few days ago, and now there are 34. Obviously I pulled in some fresh interest from people who weren't here, or weren't paying any attention to this, back in March.)

One thing no one seems to really be considering here is, even if the early issues did become public, could another company realistically use them? If all you had to work with was early issues of Action and Superman, could you still use clones? Cyborgs? Aliens from planets other than Krypton? Beings from other dimensions? Evil businessmen?

As I understand the law, the legal answers to those last four questions about what a new publisher could use in "Superman stories" are, quite simply: "Yes!", "Yes!", "Yes!", and "Yes!"

Even if you used original characters, DC still introduced clones, cyborgs, aliens, other-dimensional beings and evil businessmen into Superman's mythos first and those wouldn't be public domain yet. Could DC say "this story uses an alien from another planet, and none of that was in Action #1 so we're suing you!" What about the idea that Lois knows who Clark really is? Could you use the "Clark is who I am" mentality?

DC owns copyrights on specific characters (such as Mongul or Lex Luthor) who were introduced into Superman's mythos in one comic book or another, but nobody owns an exclusive copyright on anything so vague and general as "the hero is going to fight a scary alien from another planet this month!" or "the hero is going to square off with a filthy rich evil businessman this month!"

On the other hand, since the idea of "Lois knows for a fact that Clark is Superman, and she's agreed to keep it secret" is an item about the specific relationship between two characters, as specifically developed in certain copyrighted stories . . . I'm not sure what a judge would say if this became an intellectual property dispute in a court of law. (My personal feeling is that the judge should rule that the basic concept is not copyright-protected as long as new stories about the "public domain versions" of Lois and Clark don't explicitly cite dialogue and events from still-copyrighted stories published by DC, but it's conceivable that the judge would disagree with me.)

If you had Clark Kent act like the "real" person, could DC sue you for that? Sure, they'd have to prove that you're portraying Clark as the real person, but DC would be interested in maintaining as much of the monopoly as possible, and they likely have deeper pockets and better lawyers than Image or Dark Horse or other small time publishers.

In the Golden Age origin story, it was suggested that Clark was a grown man, up in his twenties and making his big debut as Superman at the same time he got a job as a reporter, before he ever called himself, or thought of himself as, anything but "Clark Kent." That being the case, I think it would be awfully hard for DC to make a convincing case that the whole concept of "he normally thinks of himself as being Clark Kent -- who sometimes wears a costume and exhibits superpowers!" -- as being a concept that was brand new when it was used in Byrne's Post-Crisis Reboot of the 1980s.

Superman has been in constant publication for almost a century, with thousands upon thousands of books to his name and countless more appearances. Only a small fraction of that would be public domain. How many lawyers would you have to hire to comb through each issue, making sure that nothing broke DC's copyright for the stuff they still owned? And after all that, after limiting yourself to the few things the early issues used, after making sure that you're not inadvertently breaking copyright by introducing something.....would you still turn enough of a profit to make it worthwhile? Because I can pretty much promise you, DC would be breathing down your neck every step of the way waiting for an excuse to bury you under a mountain of legal accusations.

Well, here you seem to be getting away from the question of "would it be legal to tell certain types of stories about 'public domain Superman?', and more into the question of "would DC do its level best to fight every inch of the way in court, kicking and screaming, in an attempt to scare people off, even after the letter of the law already said that the earliest Superman stories were in the public domain? Even if DC didn't have a legal leg to stand on in some of those nuisance suits they were filing?"

On that latter question, I can only say: "It's possible it would turn out that way, even if the courts ended up ruling against DC in each of the first five cases." But there's not a heck of a lot I can do about that, even if it happens that way, is there?

[Lorendiac]

The poll is defective since there's no "forever" option except under the catch-all which you've decided to characterize as a "cold shoulder."

Seems to be a little confusion here. That was not what I said. I humorously suggested that since one option on my poll had only gotten one vote to date, this meant all other participants had given the proverbial cold shoulder to that option! (The one about a 95-year-limit being a good place to draw the line.) I never said that the catchall option of "Other" was the "could shoulder" option.

Moreover, you've mischaracterized the law.

Note that with the extensions, the original rights holders were given termination rights AND extensions on filing for those termination rights AND the public received numerous fair use exemptions AND international treaties harmonized copyright more and more.

I was aware of those things when I started the poll, but "termination rights" seemed utterly irrelevant to what I was trying to measure with my poll. My focus was on finding out how my fellow fans felt about hard-and-fast time limits; i.e. "where should Congress draw the line regarding the maximum lifespan of old copyrights?"

Who actually gets to exercise control of the original copyright on Superman (or any other fictional character or published story), at any given point during the copyright's duration, struck me as a side issue which had nothing to do with just how long the copyright should remain in force.

In other words: I wasn't trying to write a lengthy article about the history of U.S. copyright law, the reasoning behind various changes to it, the criticisms that have been leveled against some of those changes, and so on and so forth. Such articles already exist on the Worldwide Web, but I wasn't trying to lecture my target audience at great length; I was just trying to list where the legal upper limits have been set at different times in the last century or so (56 years, 75 years, 95 years) and then ask my fellow fans how they felt about those numbers!

The ignorance of the original rights holders doesn't really play. Copyright had been extended twice BEFORE 1938, so rights holders could contract AROUND and future extension of copyright since it was a foreseeable possibility. Nonetheless, Congress took pity on such people (despite international law and legal scholars calling them crazy) and issued termination rights with the extension, meaning the original rights holder could force the rights to revert back to them at an appointed time. This gave them a second bite at the apple to renegotiate the sale OR get the rights back.

I get the distinct feeling that you wrote this part in reaction to something I said as a passing comment in the original post. I'd said: "So as far as Siegel and Shuster knew at the time, there was no reason to think anyone would have exclusive control of "the right to publish new Superman stories" after the year 1994."

I gather you think you're refuting my point, and that you are also reading far more into that sentence than I ever intended to put there when I actually composed it, way back in March. In the hopes of clearing things up, let me list a few things which I am certain that I never meant to imply, and never expected anyone to assume that I mean, when I wrote that sentence.

1. I never meant to suggest: "Until a few decades ago, the maximum length of a copyright under U.S. law had always been exactly 56 years; there had never been any previous extensions of the possible lifespan of copyrights."

2. I never meant to suggest: "Siegel and Shuster, in the late 1930s, had strong reason to believe it was impossible for the U.S. rules about copyright duration to ever change again."

I only meant to suggest that since copyright lifespan had been fixed at an upper limit of 56 years (in the USA) since well before Siegel and Shuster were even born, and since the Congress of the late 1930s seemed content to leave that rule alone, there was no particular reason for Superman's co-creators to think, when they sold their first Superman story to a comic book publisher, that the subject of "controlling the Superman copyright and receiving royalties on reprints of the earliest stories about him" would have any meaning for more than the next 56 years, at most.

In other words: Just knowing that it's theoretically possible that "Congress in some future decade will change the rules" is not the same thing as actually making business decisions, in 1938, based upon the premise that "somebody is still going to be collecting royalties from the use of Superman in the late 1990s and into the early 21st Century."

This is legally idiotic. Imagine selling five houses for fair market value on land that will revert to the government in 25 years. You profit off the initial sale. The buyer takes a bath on four of the houses which turn out to be unsellable money pits. The buyer doesn't get to ask you for a refund. However, the buyer successfully rents the fifth and final house and starts to make improvements so that he can rent at a higher and higher rate. After decades of investment and improvements the house is worth many fold the original five houses sale value combined. In five years, the land and house will go to the government as expected, but the government decides it likes the fact that people are developing and improving land so they increase the time another 20 years... that makes sense until they add the termination rights. The termination right means that in five years you get the house, with all its improvements and huge rent potential back, just because you thought it was going to go to the government in 5 years. Now you can't pay the upkeep or run such a fancy house, but you can run it into the ground so you get to extort a huge payday out of the buyer so that they don't lose the house and you don't crash it into the ground. Thanks government! Nobody thinks this scheme makes any sense, but whatever.

I think there are vital and fundamental differences between "the possession of real property" (land, structures built on that land, etc.) and "the possession of intellectual property" (which is far more abstract). I think that's why each type of property requires elaborate sets of rules which apply to it, but not to the other type.

But with that said, I'll take a crack at responding to your analogy.

It seems to me that, in the situation as you have described it, "the buyer" --the guy who owned the property for 25 years, and made some improvements to boost its chances of attracting good steady tenants who would pay him rent each month -- is not being "cheated" out of anything he ever expected to get when he made the original purchase and started adding special improvements to one or more of those houses.

In your scenario, he knew all along that "25 years after I sign the contract to purchase these properties, and hand over my check for the agreed-upon price, I will lose my entire stake. Therefore, anything I invest up front in 'home improvements' is money I had better plan on recouping, with considerable profit on my investment, within the next 25 years. If I didn't think I could turn a decent profit in that length of time, I wouldn't have chosen to purchase this property in the first place!"

So from his point of view, when the 25-year-deadline comes up . . . he no longer owns the land or the houses built on it. Which is exactly what he bargained for in the first place!

So what's this about "extorting" a big new price out of the buyer as the first 25-year-term is running out and a new 20-year-term is being tacked on by governmental whim? The original buyer was already planning to wash his hands of the whole thing and walk away from that land when he reached the 25-year-mark! You're not holding a gun to his head.

If he wants nothing further to do with that land . . . he can just walk away and leave "you" (the original owner) to worry about what to do next.

If he thinks he could continue to turn a profit by renting out one or more of those houses, but he thinks your demand for "X number of dollars, in cash, in exchange for the rights to control that real property for the next 20 years" is exorbitant and would leave him with little or nothing in the way of profits, then he can tell you so in plain English, make a counteroffer, and try to haggle to find a mutually acceptable compromise. If such haggling fails to bring you down to a number that he thinks is reasonable, then once again, the buyer can just walk away and you to worry about what to do next.

On the other hand! If you tell him he can have the land (and houses) back for another 20 years, on the following terms, and if he chooses to accept your terms right away and writes out another big check for you . . . that means he doesn't think your terms are outrageous! He honestly believes he will still make a nice big net profit in the long run . . . so he's making a rational economic decision on that basis -- which just happens to give you a nice cash windfall right here and now, but nobody forced him to do you that favor if he didn't want to!

In other words: I wouldn't call it "extortion." I would call it "the natural processes of the free market."

[Lorendiac]

Basically, short of selling a directly competing product with the exact same character, you are unlimited in what you can do. You can make and profit off a porno starring and advertising Superman. You can make a movie, make a comic book, make an animation, or whatever you want without profiting.

I'm not clear on where you're getting this. You make it sound as if I could publish and mass-distribute a monthly "Superman" comic book, selling a million copies a month at a very low rate, featuring the adventures of Clark Kent/Superman and Lois Lane and Perry White and other DC characters, as long as I didn't take home any net profit at the end of the year -- and that DC couldn't do a thing to me, legally, as long as there were no "profits" involved.

That is not my understanding of how copyright law works in this day and age. (Even setting aside the question of "trademark violations.")

You can profit making things ABOUT Superman. You can make your own competing Superman (as long as he's a little different), etc. Whereas 70 years ago Captain Marvel was once found infringing on Superman, today, Sentry, the Plutonian, Invincible, etc. are all free to flood the market. The public domain is made far richer by DC having economic incentive to maintain Superman as a standard bearer for all this derivative fair use to spring from, than for Superman to fall into disrepute once everyone can use him and no one has real economic incentive to do so.

Right now we're getting more meaningful Superman media than compared to even the most popular pieces of public domain like Sherlock, Pan, John Carter, or Tarzan. Nothing in public domain comes close to the combined corporate and fair use of Superman today, and without the corporate spine for all the fair-use to free-ride on, that all goes away in the public domain and people move on to Batman, Marvel, etc.

This is an interesting line of argument! It seems highly speculative, though. My general feeling is that the public domain would be vastly enriched by having Superman (and Batman, Captain America, etc.) added to it. Since this has never yet happened with any high-profile, colorfully-clad comic book superhero who's been in continuous or near-continuous use ever since the Golden Age, there's really no way of telling just how much money "Superman comic books" (and/or movies, TV series, etc.) would be making, all put together, 5 0r 10 years after the original copyrights had finally been permitted to lapse.

Note: Even if I were utterly convinced that your prognosis on that subject were correct in all details, I would still favor letting Superman slip into the public domain.

[Jeremiah]

I don't see why copyrights should expire either. What's the big deal?

[Ascended]

On the other hand, since the idea of "Lois knows for a fact that Clark is Superman, and she's agreed to keep it secret" is an item about the specific relationship between two characters, as specifically developed in certain copyrighted stories . . . I'm not sure what a judge would say if this became an intellectual property dispute in a court of law. (My personal feeling is that the judge should rule that the basic concept is not copyright-protected as long as new stories about the "public domain versions" of Lois and Clark don't explicitly cite dialogue and events from still-copyrighted stories published by DC, but it's conceivable that the judge would disagree with me.)

Well, here you seem to be getting away from the question of "would it be legal to tell certain types of stories about 'public domain Superman?', and more into the question of "would DC do its level best to fight every inch of the way in court, kicking and screaming, in an attempt to scare people off, even after the letter of the law already said that the earliest Superman stories were in the public domain? Even if DC didn't have a legal leg to stand on in some of those nuisance suits they were filing?"

On that latter question, I can only say: "It's possible it would turn out that way, even if the courts ended up ruling against DC in each of the first five cases." But there's not a heck of a lot I can do about that, even if it happens that way, is there?

That was what I was getting at, yeah. Even if the early stuff did become public domain, would it be worth the hassle? I cannot imagine that it would be. As long as DC owns any part of Superman, they're going to fight tooth and claw to hold onto it.

Im glad someone was able to dig through the pile of words (it was super late and the brain wasn't reallly working right) and see what I meant to say.

[Demas]

But with that said, I'll take a crack at responding to your analogy.

It seems to me that, in the situation as you have described it, "the buyer" --the guy who owned the property for 25 years, and made some improvements to boost its chances of attracting good steady tenants who would pay him rent each month -- is not being "cheated" out of anything he ever expected to get when he made the original purchase and started adding special improvements to one or more of those houses.

You realize to use quotations you have to actually quote something. I never said "cheated" and as for expectations, the buyer has two probable outcomes: 1) Either the term is extended like it has been twice before; or 2) It reverts to the public domain while they maintain the trademark.

The termination right creates an insane situation where it creates a third stakeholder who was never a part of the copyright scheme to begin with, who will have an exclusive copyright to the property. Something that existed in NO ONE's expectations- not the public, the buyer, or the seller- and which no other country has adopted because of now inane it is. Not driven or guided by the free market but by some sort of fictional morality tale about how they never would have sold if they knew the period was going to be extended, which is utter bollocks, especially in the case of Superman (who, even after contesting the rights, went on to sell subsequent characters under the exact same terms).

"If I didn't think I could turn a decent profit in that length of time, I wouldn't have chosen to purchase this property in the first place!"

That's a hypocritical line of reasoning because if it's entirely based on expectation, then the sellers are owed nothing, period. Nothing prior to the amendation of law would grant them back an exclusive right to the property that's rivalrous to the public. From the moment of sale, their only expectation would be to either have to purchase back the rights at fair market value OR use them as part of the public domain. There is zero reason why the failure to revert to the public domain at the earlier time would suddenly create a new exclusive right.

So from his point of view, when the 25-year-deadline comes up . . . he no longer owns the land or the houses built on it. Which is exactly what he bargained for in the first place!

No it isn't. When the deadline comes up, the right goes to the public domain which means the house is now free to use for the buyer, the seller, and the public. With termination rights, ONLY THE SELLER has the right. Under the original scheme, the buyer can still run tours through the house explaining how the improvements were made, still use it for special functions, can even rent rooms if people think the experience under them is superior. Under termination rights, no one gets to use the house except a party who can only run the house into the ground or sell it, to another party who will also have exclusive rights (against the public and the buyer if the buyer of the termination rights isn't also the original buyer). Meanwhile the trademark loses value because the house is going down in flames.

You have a massive blindspot with the idea that public domain means walking away. Hardly. YOU STILL GET TO USE IT. A huge portion of Disney's empire is built on working within the public domain. Disney's use of the public domain is in "competition" with the whole world, yet free to use the IP themselves. Under a rights sale with retroactive termination rights, only Anderson's heirs can use the Little Mermaid AFTER Disney makes the movie- not Disney, not the public, no one, if the rights were purchased. In a case like that, Disney would never have made the Little Mermaid to begin with, and made their own rip-off instead. What happens under termination rights is totally different than what happens at the end of a normal term.

In other words: I wouldn't call it "extortion." I would call it "the natural processes of the free market."

I'm sorry, but you literally do not have the right to use the words "free market" when talking about an intellectual property right that's was explicitly made to upend the market. The sellers sold the germ of something and were paid the free market price for it. The buyer developed it according to the free market and reaped that reward, but also bore the risk of all the failed germs purchased which never took off or died even after extensive investment. The buyer doesn't get to ask for a refund on their investment. Nowhere does the free market incentivize the return of only successful properties to the original seller exclusively. That has nothing to do with the free market.

The sellers CAN contract around an extension of term. It's happened before. They can prepare for it. The buyers CAN'T contract around the legislature creating an inane retroactive right to reclaim a property after decades of development. Why? Because the law never existed before. Who would think you'd have to compete against the original seller ONLY (not the public domain but the exclusivity of the seller) after an extension? No one. Because it's an idiotic law not seen anywhere else or any when else. You literally can not plan or expect for something that has no precedent or logical reason or good policy behind it.

Consider the chilling effect it's had on the industry.

No one buys ideas to develop any more. You either create IP for the corporate structure or you have to independently create IP. No one wants the grief of buying and building someone else's idea. So Superman never gets published at DC under this rubric. Corporations don't even want to LOOK at ideas. Whereas IP is meant to drive innovation, exchange of ideas, and the free market... termination rights mean there's zero incentive to invest in fledgling ideas, you only create in-house or buy fully formed IP, you don't invest in any innovation outside the four-walls of your corporation.

Of course, this has already been decided. People still supporting termination rights are dinosaurs and unsupported. It's not worth repealing because of the political will it requires to drive any legislation through today versus the slim number of cases actually impacted. Those with termination rights are literally dying off. The termination rights have been boxed into a corner by international treaty (such that even if the rights revert in the US, they don't anywhere else in the world) and judges are finding other ways to decide against them. The world has literally moved on... it's crazy people are still trying to support or justify them without understanding the law, the consequences, the bad public policy, and the massive drain and waste caused by this idiotic glitch in the law (not to mention the collapse of IP, especially in the music industry, where the buyer didn't have the ability to defend like DC or pay out... music that will just go silent until the copyright expires). The public domain is impoverished because the costs and the litigation that could have went into improving the IP further, instead end up- pointlessly- in the pocket of the seller who does literally nothing to further the IP.

[Demas]

I'm not clear on where you're getting this. You make it sound as if I could publish and mass-distribute a monthly "Superman" comic book, selling a million copies a month at a very low rate, featuring the adventures of Clark Kent/Superman and Lois Lane and Perry White and other DC characters, as long as I didn't take home any net profit at the end of the year -- and that DC couldn't do a thing to me, legally, as long as there were no "profits" involved.

Don't be ridiculous. Selling directly, no. However, paramount to it? Absolutely. Consider the amount of on-going webcomics (which do sell merchandising) using Superman and other DC properties (and go on further to appear at conventions in Artist's Alleys and the like). Your last point is something of a meaningless distinction. Any suit can be brought with consequences, the question is whether: a) It's worth doing; b) You will prevail. The issue of profit almost always knocks out A irrespective of B. That said, profit is a factor in determining B, which means noncommercial fair use is far more protected than commercial fair use. Selling, even nominally, is commercial, which hurts that factor, but doesn't mean it isn't fair use. Which is how a completely for-profit porno entitled Superman is permissible and defensible.

You seem to be under the delusion that once Superman enters the public domain, people would actually publish a for-profit alternative that would be supported by the market. There's no incentive to do so. The brand is still DC's. We've already seen this situation between Marvel and Fox and the decimation of Fox-licensed properties within Marvel's ongoing media and merchandising.

This isn't like the Disney situation because the fairy tales mined by Disney had no preexisting competition anywhere on their scale. Anything they built in that space was to their benefit. Whereas anything a public domain competitor builds ends up helping DC and hurting their own ability to merchandise. You'd have to do what everyone does with public domain works. Let them fallow, wait for everyone to go silent on them, and then- at the peak of their irrelevance- try to make a run at carving out a space that no one else wants to enter.

That's a terrible future for Superman.

Note: Even if I were utterly convinced that your prognosis on that subject were correct in all details, I would still favor letting Superman slip into the public domain.

Which is plain stubborn if you actually want to see Superman on shelves and consume Superman media and merchandising.