"Public Domain" and Originality

[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.

[Awonder]

I see Silvanus is still trying to sell Azzarello's WW. And I still disagree. So, all is right with the world.

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: ...

You may not call Strife public domain, but she IS public domain. Azzarello and Chiang gave her a distinctive (and copyright-able?) look, but it's not a look that is so definitive that no other look can work. He gave her a personality and voice, but that too can be replicated. Anyone anywhere can still legally use the daughter of Zeus and Hera that loves to cause strife.

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.

Oh, come on now, maybe nothing's original, but it's more than just a name. Cheetah may be inspired by Dr. Jekyll/ Mr. Hyde, but Cheetah is not Dr. Jekyll/Mr. Hyde. I kind of think of it as the difference between building a house that's inspired by other houses and remodeling and existing house. Obviously, there are differences in the amount and the success of remodeling (and success can be largely subjective).

Azzarello borrows much for his story. Chiang and the art crew gave it a great paint job. But that doesn't change the fact that we've all seen and read many stories of the Greek god family drama.

'Modern' Greek gods - not new
"Zeus, you are the father." - not new
Hera's mad again - not new
Oh, look, long lost demi God siblings - not new
A battle to take the throne of Olympus - not new
Kill Ares, take his place - not new
A change in Hera - not new

The most original addition is the First Born.

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 that the HOW is key. Even a story we know well can be done so well it feels fresh - see Disney's success with public domain characters/stories. For some, I'd wager Azzarello's WW run has enough new and enough reimagined ("transformed") to feel like a fresh story. For others, it's too much public domain without enough new.

The "problem" with public domain is that it can be used anywhere. And Greek mythology, in particular, gets used a lot. So, stories may have Lex Luthor like charCters, but only Superman has Lex Luthor. Azzarello's WW may have the only Azzarelllo look-alike Ares, but Ares appears in a lot of other stories outside WW/DC.

[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".

[Darius]

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. )

I think we're on the same page here ... my point is really that Marvel could create a character and name him Solomon Grundy ... certainly at this point they'd have to make sure they don't just copy the DC version ... and yes think people are using the term public domain on here as an inherently negative commentary. I disagree with that connotation because there is a lot of uniqueness to characters DC and Marvel have created that are from the public domain in origin.

[Silvanus]

I see Silvanus is still trying to sell Azzarello's WW. And I still disagree. So, all is right with the world.

Anything that brings you into the conversation works for me!

You may not call Strife public domain,

Actually, I would call Strife public domain. I said I would not call "the Strife who appears in Wonder Woman" public domain. I would also call Thor public domain, but would not call the Thor who appears in Marvel Comics public domain (and I think legal authorities would agree about that).

I'll admit that DC's current Strife is a closer call than Marvel's Thor, or even perhaps DC's Hippolyta; but, give Strife a few decades to catch up!

but she IS public domain. Azzarello and Chiang gave her a distinctive (and copyright-able?) look, but it's not a look that is so definitive that no other look can work.

I don't think (based on my extensive legal studies for about 15 minutes this afternoon) that "so definitive that no other look can work" is the legal standard for whether a character gets copyright protection. As Expletive Deleted mentioned, an applicable standard is whether the character is "distinctly delineated"; and if another company could use DC's Strife only by leaving behind something that makes her recognizable, then I think that with that look she's probably "distinctly delineated" from other version of Strife. If Strife's look is copyright-able, as I think you're conceding that it might be, then, by definition, it's not public domain. And if DC's Strife's look is not public domain, then it's not clear that DC's Strife is public domain.

Anyone anywhere can still legally use the daughter of Zeus and Hera that loves to cause strife.

Sure. Strife, as a general idea, is public domain, but DC's Strife, as a unique expression of that idea, may not be; just like, as Expletive Deleted said, the ancient or generic Hippolyta is public domain but DC's Hippolyta is probably not. I also suspect that some of Rucka's gods, for instance, are not public domain in that their designs are too "distinctly delineated" to be used elsewhere. (See? It's not just about Azzarello. )

Oh, come on now, maybe nothing's original, but it's more than just a name.

Like I said, there's a spectrum, and not a cut-and-dried "bright line" that separates "public domain characters" from "original characters."

Cheetah may be inspired by Dr. Jekyll/ Mr. Hyde, but Cheetah is not Dr. Jekyll/Mr. Hyde. I kind of think of it as the difference between building a house that's inspired by other houses and remodeling and existing house. Obviously, there are differences in the amount and the success of remodeling (and success can be largely subjective).

Azzarello borrows much for his story. Chiang and the art crew gave it a great paint job. But that doesn't change the fact that we've all seen and read many stories of the Greek god family drama. ...
Hera's mad again - not new

That's true. "Hera's mad again" reminds me of the line "Hieronymo's mad again," which T.S. Eliot borrowed from Kidd's Spanish Tragedy, from which Shakespeare borrowed much of Hamlet. But no one says Eliot or Shakespeare weren't original or creative (or if someone does say that, they're wrong). You could go through Shakepeare's canon and point out lots of borrowing, but it doesn't make him unoriginal. Adaptation can be among the most creative of activities. And something that doesn't borrow at all would be probably more superficial and trivial--like a novelty--than truly creative.

I agree that the HOW is key.

Cool.

The "problem" with public domain is that it can be used anywhere. And Greek mythology, in particular, gets used a lot.

If that's a problem for some, it's a problem for them; I'm not trying to say it can't be a problem for anyone. For me, Wonder Woman comics don't need to be the only place where I can see Greek gods; it's the only place where I can these these versions of the Greek gods. Even more than that, it's the only place I can see the Greek gods interact with Wonder Woman. And that's more than enough for me.

It's true that we can only see Luthor in Dc comics, and that we normally see him in Superman comics; but I've seen him there an awful lot. If a story calls for Superman to contend with a sinister master planner, it might be fun to see Superman deal with the schemes of, let's say, Moriarty from Sherlock Holmes, or Lucifer. I don't recall every seeing that; for me, that would be original.

[Dr. Poison]

I see Silvanus is still trying to sell Azzarello's WW. And I still disagree. So, all is right with the world.



You may not call Strife public domain, but she IS public domain. Azzarello and Chiang gave her a distinctive (and copyright-able?) look, but it's not a look that is so definitive that no other look can work. He gave her a personality and voice, but that too can be replicated. Anyone anywhere can still legally use the daughter of Zeus and Hera that loves to cause strife.



Oh, come on now, maybe nothing's original, but it's more than just a name. Cheetah may be inspired by Dr. Jekyll/ Mr. Hyde, but Cheetah is not Dr. Jekyll/Mr. Hyde. I kind of think of it as the difference between building a house that's inspired by other houses and remodeling and existing house. Obviously, there are differences in the amount and the success of remodeling (and success can be largely subjective).

Azzarello borrows much for his story. Chiang and the art crew gave it a great paint job. But that doesn't change the fact that we've all seen and read many stories of the Greek god family drama.

'Modern' Greek gods - not new
"Zeus, you are the father." - not new
Hera's mad again - not new
Oh, look, long lost demi God siblings - not new
A battle to take the throne of Olympus - not new
Kill Ares, take his place - not new
A change in Hera - not new

The most original addition is the First Born.



I agree that the HOW is key. Even a story we know well can be done so well it feels fresh - see Disney's success with public domain characters/stories. For some, I'd wager Azzarello's WW run has enough new and enough reimagined ("transformed") to feel like a fresh story. For others, it's too much public domain without enough new.

The "problem" with public domain is that it can be used anywhere. And Greek mythology, in particular, gets used a lot. So, stories may have Lex Luthor like charCters, but only Superman has Lex Luthor. Azzarello's WW may have the only Azzarelllo look-alike Ares, but Ares appears in a lot of other stories outside WW/DC.

I think you hit the nail right on the head with a lot of what you said. Nice to see you back AW.

[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.

[Awonder]

I think you hit the nail right on the head with a lot of what you said. Nice to see you back AW.

Thanks. It's good to see you, too, Dr. Poison (although, that sounds weird to say given that Dr. Poison, the original character, is sooo creepy).

Anything that brings you into the conversation works for me! ...

And it's good to see you, too, Silvanus.

Thanks for clarifying how you view Strife as public domain, and how Azz-Strife as not. To be honest, I'm not a lawyer, and don't work for WB, so the legalities of public domain aren't really what interest me. What interests me is the use of characters for my enjoyment. Part of that enjoyment is affected by seeing the same characters in many places. I love Greek myth, but I can get somewhat bored by it when I get too much of it (movies, books, games, etc). That's where public domain is problematic.

DC's look for Strife may not be public domain, but I don't really care. The look is a paint job. It's a great look for her, but it isn't needed to make the character work. So, if I want to make a movie about Strife in the modern world, I can. I'd just find another look that works.

This is one of the main reasons DC's Hippolyta needs work, imo. The creators have been too lazy too often to really make DC's version more unique and standout. This is also why I don't want typical, generic (usually hyper man-hating) Amazons in WW. I can get typical, generic Amazons anywhere. DC should work to avoid that and get back more of Marston's originality to make them more their own.

You make a good point on the modern use of characters. The Joker may be unique to Batman and DC, but that doesn't mean every modern storyline with the Joker is all that unique and creative. To the current creators, it's kind of the same; whether they borrow Strife from the public domain or borrow Cheetah, they are still borrowing an existing character. And they can rehash company storylines just as easily as rehashing public domain storylines.

Also, adaptations can be really well done. In general, I'm not a Rapunzel fan, but I really enjoyed Disney's "Tangled." It's not a new story, yet ithe movie still feels fresh and lively. Here, I agree with you that it's a scale of sorts, a matter of degree. I don't think one size fits all; much depends on the HOW something is used in the remodel.

If it's enough for you, then it's enough for you. We all like what we like. But, that's rather subjective. Thus, it's not objectively enough for all. Rucka also used a lot of Greek myth, but one reason I like his run better is that he mixed in more that is distinctively WW. Maybe Rucka borrowing from Jimenez made it less original, and thus less enjoyable, for some.

With Azzarello, I felt the story was at it's best, and most creative, early in second year, when he added First Born; a great, original addition to Hera's well-known and borrowed story.

[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.)

[AmiMizuno]

You have to do something different like for example Athena and a few other gods realized that they have to be more active in the human world. So Athena could open the Holliday College. She can also do a cat sanctuary and owls. I mean she is associated with other animals other than the owl. However it's mainly cats, and owls. Snaked maybe. In order to keep their powers going.

[Awonder]

... So Athena could open the Holliday College.

This is a great idea, AmiMizuno. That could be a lot of fun.

[Mel Dyer]

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?

Of course, it's misleading.

Strife, classical Greek goddess and daughter of Zeus...public domain. Strife, chalk-white, coke-chic trickster and half-sister of Wonder Woman...NOT public domain. Not ..public domain.

[wagthedog]

Of course, it's misleading.

Strife, classical Greek goddess and daughter of Zeus...public domain. Strife, chalk-white, coke-chic trickster and half-sister of Wonder Woman...NOT public domain. Not ..public domain.

It sounds like a bunch of semantics. Azz used characters from the public domain. That is what Dr. Poison has been stating for quite a while. What Azz does with these characters afterwards may not be public domain as you put it, but the characters started out that way.

[Silvanus]

To be honest, I'm not a lawyer, and don't work for WB, so the legalities of public domain aren't really what interest me.

You're probably saner than me in that way. While the stories and characters are the real focus of interest, I have to admit that for a non-lawyer, I do have a geeky fascination with legal language, definitions and arguments. I mean, look at Expletive Deleted's post: there's actually a legal hierarchy with "fanciful" and "arbitrary" as its most privileged terms. That's weird, hilarious and fascinating to me. So yeah, it's all semantics, but I think semantics are underrated.

What interests me is the use of characters for my enjoyment. Part of that enjoyment is affected by seeing the same characters in many places. I love Greek myth, but I can get somewhat bored by it when I get too much of it (movies, books, games, etc). That's where public domain is problematic.

I can understand that. I guess I just haven't seen a lot of other Greek-myth-based fictions that have really spoken to me lately. I think I would have loved the Percy Jackson movies if they came out when I was a kid, but they didn't really grab me as an adult. And if you were to ask me for my top 5 modern fictions about Strife or Eris--well, other than Azz's, I've pretty much got nothing. I should probably read about Discordinaism; it sounds interesting, but I haven't really looked into it. The pre-Flashpoint Wonder Woman Eris and other versions I can think of seemed pretty generic to me. So, I guess it doesn't matter to me that I theoretically could read or watch other fictions about these characters, when not many other fictions that I really want to read or watch are being created about some of them, as far as I know. It's like if there were 5 Wonder Woman books on the shelves, but they were all mediocre versions, to your taste. Would that make you feel that the market was so glutted that there shouldn't be another WW book, or would it just make you hungrier for a version your would enjoy more?

So, if I want to make a movie about Strife in the modern world, I can. I'd just find another look that works.

Go ahead! If you make it and I like it, I may feel less need for the Wonder Woman version of Strife!

If it's enough for you, then it's enough for you. We all like what we like. But, that's rather subjective.

No doubt about that.

With Azzarello, I felt the story was at it's best, and most creative, early in second year, when he added First Born; a great, original addition to Hera's well-known and borrowed story.

Interesting. We've always agreed that the First Born's back story in 14 was a good moment. I'd just add (or emphasize, because I think you're already implying this) that it was good not only because it was original, but also because it was rooted in mythic precedent. It was a kind of repetition-with-difference of the story of Cronus and Rhea and their kids, or the story of Uranus and Gaea and their kids, and it also drew from Oedipus and other stories in which attempts to stave off prophecy make prophecy come true. The "difference" made this version original, but the "repetition" made it resonant and primal. I also felt this way about Diana shooting Hades with the love bullet; various circumstances made it original, but it was also felt like a real myth, not in spite of but partly because of the fact that it echoed stories of Echo, of Narcissus, and of Eros/Cupid. Same with Rucka; a rescue mission to hell wasn't new, but doing an old thing a new day was more interesting than something that no one had ever bothered to do before might have been.

[Expletive Deleted]

You're probably saner than me in that way. While the stories and characters are the real focus of interest, I have to admit that for a non-lawyer, I do have a geeky fascination with legal language, definitions and arguments. I mean, look at Expletive Deleted's post: there's actually a legal hierarchy with "fanciful" and "arbitrary" as its most privileged terms. That's weird, hilarious and fascinating to me. So yeah, it's all semantics, but I think semantics are underrated.

Trademark is based on likelihood of confusion, so the strongest marks are the least likely to cause confusion on the part of the consumer. Fanciful marks are nonsense words that don't have any other meaning, like "Xerox" or "Kodak," so they're considered the strongest and least confusing (from a market point of view, at least). Arbitrary marks are unrelated words, where you wouldn't automatically associate the term with the product, like "Amazon" or "Apple." Suggestive marks are related words that require some imagination to connect to the product, like "Mustang" for a car or "7-Eleven" for a convenience store. Descriptive marks are just words that directly relate to the product (usually adjectives, like "Delicious" for a candy bar or "Piping Hot" for a pizza), and generic marks just say what the thing is ("Apple" for apples).

Descriptive and generic trademarks aren't registerable, unless the owner can prove they've somehow acquired distinctiveness. "McDonald's" was originally not a registered trademark, since it was just the founders' last name (and thus descriptive), but over time they were able to prove that it had become sufficiently distinctive so as to not be confusing to consumers.

If registered trademarks become ubiquitous terms through popular use, not necessarily connected to their original product, the likelihood of confusion increases. That's why companies have to aggressively defend their trademarks. If they don't, the mark becomes formally generic, loses its registration, and goes the way of trademarks like "trampoline," "videotape," "thermos," and "heroin."

To bring this back around to comics, that's why you'll occasionally see people get in trouble for using the word "superheroes" in the title of new indie comic books. It's a trademarked term, jointly owned by Marvel and DC. Even if the term has become somewhat generic, they have to at least make a show of protecting it.

(I know you didn't ask, but I like to talk about this stuff.)