"Public Domain" and Originality

[Silvanus]

I wanted to continue some of the discussion on "public domain" and originality that started on Dr. Poison's "favorite character not from public domain" thread, so I thought I'd start a thread where this would be on-topic.

I did a little googling on "public domain" characters, and I found an explanation that I thought made sense. Basically, while a mythological character's name and any back story that carries over from myths is public domain, everything else is subject to copyright. So, are the characters themselves public domain? I think it's a semantic question that depends on how you define "character." If Strife, for example, is defined just by her name and a few basic facts (daughter of Zeus and Hera, etc.) then she's public domain; but to me, the Strife who appears in Wonder Woman defined by her look and by her dialogue and actions in this book (e.g., "split happens.") So no, I wouldn't call her a public domain character.
On a site called World of Mythology, a guy who says he studied business and entertainment law in college breaks down the question of whether Marvel can coopright Loki:

They can copyright their visual design of Loki.

They can copyright their original story lines involving him.

They can copyright the materials they have produced (i.e. Comics/Films).

They cannot hold a copyright of a character’s name that has been in the public domain for hundreds of years.

So, if this guy's right, 'Zeus,' for example, is public domain only in the obvious sense, which I think we all agree about: anyone can publish something about someone named Zeus, or about someone with the prior history established by mythology. But DC's original character designs for, and story elements about, their Zeus are not public domain.

Does not having a copyright-eligible name make a character less original in a meaningful sense of the word "original? Not to me. What's in a name? Nothing's 100% original, and even if a character's name isn't borrowed, some other aspects of the character may be. Cheetah, Marston said, was inspired by "double identity" characters like Dr. Jekyll/Mister Hyde. Dr. Psycho, according to historian Jill Lepore, was inspired by a psychologist Marston knew and disliked at Harvard. To me, Azz and Chiang's Ares is a more original character that Johns' and his artist's Cheetah, because Ares was transformed more from the mythical version and from previous WW versions than Cheetah was from previous WW versions.

I realize that some people aren't saying the so-called "public domain" characters are of less interest in general than characters whose names are original to DC, but only that there should be variety and DC should use WW's whole legacy. I've got no problem with that and I don't completely disagree, though as a matter of personal preference, DC's mythology-based characters than most other WW characters. I'm just saying that using so-called "public domain" characters isn't necessarily any less (or more) original than using old Wonder Woman characters, depending on HOW each character is used.

[Darius]

I wanted to continue some of the discussion on "public domain" and originality that started on Dr. Poison's "favorite character not from public domain" thread, so I thought I'd start a thread where this would be on-topic.

I did a little googling on "public domain" characters, and I found an explanation that I thought made sense. Basically, while a mythological character's name and any back story that carries over from myths is public domain, everything else is subject to copyright; and I think it's usually "everything else" that makes a comic version of such a character interesting, so calling these characters "public domain" seems unintentionally misleading, to me.

On a site called World of Mythology, a guy who says he studied business and entertainment law in college breaks down the question of whether Marvel can coopright Loki:



So, if this guy's right, 'Zeus,' for example, is public domain only in the obvious sense: anyone can publish something about someone named Zeus, or about someone with the prior history established by mythology. But DC's original character designs for, and story elements about, their Zeus are not public domain.

Does not having a copyright-eligible name make a character less original in a meaningful sense of the word "original? Not to me. What's in a name? Nothing's 100% original, and even if a character's name isn't borrowed, some other aspects of the character may be. Cheetah, Marston said, was inspired by "double identity" characters like Dr. Jekyll/Mister Hyde. Dr. Psycho, according to historian Jill Lepore, was inspired by a psychologist Marston knew and disliked at Harvard. To me, Azz and Chiang's Ares is a more original character that Johns' and his artist's Cheetah, because Ares was transformed more from the mythical version and from previous WW versions than Cheetah was from previous WW versions.

I realize that some people aren't saying the so-called "public domain" characters are of less interest in general than characters whose names are original to DC, but only that there should be variety and DC should use WW's whole legacy. I've got no problem with that and I don't completely disagree, though as a matter of personal preference, DC's mythology-based characters than most other WW characters. I'm just saying that using so-called "public domain" characters isn't necessarily any less (or more) original than using old Wonder Woman characters, depending on HOW each character is used.

I agree wholeheartedly ... DC and Marvel both have created very original characterizations from the myth inspired characters they use. Thor in Marvel is practically unrecognizable from the Thor of the Germanic and Norse religions. Very few of the WW Olympians has more than a passing familiarity with their mythological history. But these characters are every bit as original as actual copyright characters.

How is Lex Luthor more original than say Hercules? Lex is a pretty straight forward archetype of "mad scientist" or "evil business man" depending on the interpretation ... not exactly the first character in fiction to fit that role. Cat-woman is little more than a standard Femme Fatale and even our heroes aren't exactly stunningly original in concept either.

[Amazon Swordsman]

Well, if their names and various stories surrounding them can be used by anyone, it's not necessarily misleading to call them public domain. That's just stating the obvious. Now a better question would be, has DC copyrighted their takes on the Olympians?

[Silvanus]

Well, if their names and various stories surrounding them can be used by anyone, it's not necessarily misleading to call them public domain. That's just stating the obvious. Now a better question would be, has DC copyrighted their takes on the Olympians?

I already deleted "misleading," but, again, I just think it's a question of how you define a character. If a character is defined by a name and by the bits and pieces associated with old characters who went by the same name, then yeah, the Olympians are public domain. But if DC's Olympians are defined by new stories being told about him and her, by their visual design, etc., then it doesn't really make sense to call those characters (as opposed to just their names) public domain, in my opinion.

Now a better question would be, has DC copyrighted their takes on the Olympians?

The original parts (distinctive visual designs, DC-specific stories, etc.) are copyrighted by virtue of having originated in DC's copyrighted books (same as other characters).

I doubt DC has applied for trademarks on their Olympians, though (unlike Marvel, which trademarked their version of Thor) because the mythic characters (including Hippolyta and Circe) haven't carried their own books.

[SteveGus]

I already deleted "misleading," but, again, I just think it's a question of how you define a character. If a character is defined by a name and by the bits and pieces associated with old characters who went by the same name, then yeah, the Olympians are public domain. But if DC's Olympians are defined by new stories being told about him and her, by their visual design, etc., then it doesn't really make sense to call them public domain, in my opinion.

At least some depictions of public domain characters contain very little additions. Perez's Heracles comes to mind; he was a bearded muscleman in classical dress, and that kind of depiction is clearly based on classical models and doesn't really add anything to the character that wasn't there before. Marvel's Hercules at least had visually distinctive elements in his costume, and wore a sash or a baldric with distinctive colors. Marvel's Thor is quite unlike the mythological Thor in appearance; mythical Thor had a red beard, and IIRC that public domain Thor was the one that appeared in the Superman story with Wonder Woman for a thousand years in Asgard.

[Silvanus]

At least some depictions of public domain characters contain very little additions.

That's true. By and large, though, I think that if Azzarello's Olympians showed up somewhere else, we would say, "hey! Those are DC characters" (whether we'd be happy to see them or not. Personally, I think Azzarello should get to write his Ares for any publisher; after all, that's his face! )

I have to admit, though, that while I'd like to think that what defines some of these characters, like Strife, is their personalities, it would surely be very difficult to copyright a personality. It's probably mostly visual elements that distinguish proprietary versions of these characters from public domain versions in a legal sense, right?

[Dr. Poison]

So what would you like these characters to be referred to when they are not exclusive to DC like Superman, Solomon Grundy, and Alfred Pennyworth?

[Silvanus]

So what would you like these characters to be referred to when they are not exclusive to DC like Superman, Solomon Grundy, and Alfred Pennyworth?

Solomon Grundy? Born on a Monday? His name is from an English nursery rhyme and has been used elsewhere, so is he really so much further from "the public domain" than, say, Azzarello's Strife?

As for an alternate label, I dunno-- "classic," maybe? Or maybe what you really mean is "Non-Mythological" (or, to be more precise, "not derived from mythology")? If you don't want to include the Duke of Deception (or the First Born) in this group, you could call it "characters whose names do not come from mythology"; but technically, that label might not cover Diana, whose name comes from Roman mythology.

[numberthirty]

So what would you like these characters to be referred to when they are not exclusive to DC like Superman, Solomon Grundy, and Alfred Pennyworth?

"Characters". Most up to speed comic fans are going to be aware of that Marvel and DC have/had an Ares. Do you really need to clarify it past "That's Ares"?

They also know that they were not "work for hire".

[Expletive Deleted]

Character copyright is a little bit of a gray area. Technically, copyright doesn't protect ideas, only the expression of ideas. Characters are only protected by copyright in the context of the story in which they appear. When you extend beyond the stories themselves, the characters are protected to the extent that they contain clear markers of the copyrighted stories. Hippolyta, generic Amazon queen, is a stock character and probably isn't copyrightable. Hippolyta, mother of Wonder Woman and member of the Justice Society of America, is a well-defined character and probably is copyrightable.

It's called the "distinct delineation" test.

I already deleted "misleading," but, again, I just think it's a question of how you define a character. If a character is defined by a name and by the bits and pieces associated with old characters who went by the same name, then yeah, the Olympians are public domain. But if DC's Olympians are defined by new stories being told about him and her, by their visual design, etc., then it doesn't really make sense to call those characters (as opposed to just their names) public domain, in my opinion.

The original parts (distinctive visual designs, DC-specific stories, etc.) are copyrighted by virtue of having originated in DC's copyrighted books (same as other characters).

Exactly.

I doubt DC has applied for trademarks on their Olympians, though (unlike Marvel, which trademarked their version of Thor) because the mythic characters (including Hippolyta and Circe) haven't carried their own books.

Keep in mind, trademark doesn't protect whole characters. It just protects source identifiers. Names, logos, slogans, etc. Wonder Woman the character isn't trademarked. The name "Wonder Woman," though, is registered for use in toys, comic books, and cosmetics (three separate filings). Two versions of the "Wonder Woman" logo are also registered (the original script lettering and the '70s block lettering). The winged W emblem isn't registered, as far as I can tell, but DC does claim common law trademark protection on it.

[Silvanus]

Character copyright is a little bit of a gray area. Technically, copyright doesn't protect ideas, only the expression of ideas. Characters are only protected by copyright in the context of the story in which they appear. When you extend beyond the stories themselves, the characters are protected to the extent that they contain clear markers of the copyrighted stories. Hippolyta, generic Amazon queen, is a stock character and probably isn't copyrightable. Hippolyta, mother of Wonder Woman and member of the Justice Society of America, is a well-defined character and probably is copyrightable.

It's called the "distinct delineation" test....

Keep in mind, trademark doesn't protect whole characters. It just protects source identifiers. Names, logos, slogans, etc. Wonder Woman the character isn't trademarked. The name "Wonder Woman," though, is registered for use in toys, comic books, and cosmetics (three separate filings). Two versions of the "Wonder Woman" logo are also registered (the original script lettering and the '70s block lettering). The winged W emblem isn't registered, as far as I can tell, but DC does claim common law trademark protection on it.

Thanks--this is very helpful and interesting!

[Silvanus]

I don't know that the term "public domain" is the problem per se ... as I think about it the term itself makes sense and is simple for understanding sake, at least it's descriptive of what we're talking about. I think the problem is that folks are using the term to infer a lack of originality or creativity ... which seems inaccurate, or at the least is not the same issue as public domain. Solomon Grundy is technically public domain in that Marvel could also use the name for a character they create tomorrow ... but the DC creation is clearly unique and creative regardless that the name comes from a classic nursery rhyme.

Well...I see your point, but...while the name "Solomon Grundy" and everything in the nursery rhyme is public domain, I'm not sure everything else about the character is; could another publisher use a "Solomon Grundy" who looks and acts like DC's and has a similar history, powers, etc.? I think probably not, because DC's Solomon Grundy seems "distinctly delineated" enough to qualify as unique expression and not just a vague idea.

The "distinct delineation" test Expletive Deleted mentioned, now that I've glanced at a couple of articles about it, makes me think that calling a particular version of a character public domain really might imply a somewhat negative judgement, because it would mean that that particular version isn't well-developed enough to be considered "distinctly delineated." So of course, people who think the Olympians in a particular run aren't well-developed are free to call them "public domain," but it seems only to be expected that others may disagree with that label. If I start a thread asking who everyone's favorite character is "other than poorly developed and corny characters like Cheetah, Doctor Psycho and Giganta," I'm probably pretty much inviting people to turn the thread into a discussion of who's "poorly developed and corny" and who isn't.

(No, I'm not really calling Cheetah, Doctor Psycho and Giganta corny and poorly developed--just using a hypothetical to make a point. )

[Melab]

Well, if their names and various stories surrounding them can be used by anyone, it's not necessarily misleading to call them public domain. That's just stating the obvious. Now a better question would be, has DC copyrighted their takes on the Olympians?

Names are not eligible for copyright. That is what trademarks are for. Generic or non-brand names like "Loki", "Zeus", and so forth are absolutely not eligible for trademark. The tales of the Olympians and Greek gods are public domain. Derivatives of public domain "works" (if a religion can be called a "work") are eligible for copyright. The changes made and the synthesis of the public domain material and the changes taken as a whole would be as such. The elements of the derivative work that come from the original are not subject to exclusive rights.

[kingmyth]

Names are not eligible for copyright. That is what trademarks are for. Generic or non-brand names like "Loki", "Zeus", and so forth are absolutely not eligible for trademark. The tales of the Olympians and Greek gods are public domain. Derivatives of public domain "works" (if a religion can be called a "work") are eligible for copyright. The changes made and the synthesis of the public domain material and the changes taken as a whole would be as such. The elements of the derivative work that come from the original are not subject to exclusive rights.

Anything from Mythology, classic Fairy Tales, and other classic very old literary stories are all public domain.

[Expletive Deleted]

Names are not eligible for copyright. That is what trademarks are for. Generic or non-brand names like "Loki", "Zeus", and so forth are absolutely not eligible for trademark.

There are dozens of registered trademarks for both Loki and Zeus, in a variety of classes.

Generic names are only a problem in areas related to the names themselves. You couldn't name a fruit company "Apple" because it's too generic, but "Apple" is fair game for a computer manufacturer because, in that context, it's considered arbitrary.

(The trademark strength hierarchy goes Fanciful, Arbitrary, Suggestive, Descriptive, and then Generic.)