Halloween Chills and Copyright Thrills

I love Spooky Season, when the air turns crisp, the leaves turn colors, and my mind turns toward Halloween. Whenever I think about Halloween, I think about The Night of the Living Dead. And whenever I think about The Night of the Living Dead, I think about copyright and public domain. (To be honest, I think about copyright and the public domain a lot.) Did you know that George Romero’s classic zombie film is in the public domain for failure to follow the rules that copyright law required when it came out in 1968? That’s right; it’s free for anyone to use, reuse, or remix however you want, because as part of the public domain, it belongs to all of us.  

On that note, today I want to tell you about how the public domain may have gotten just a bit bigger recently. Bill Willingham, writer of the acclaimed comic series, Fables, says that he has given his stories to the public domain. Huzzah! Unfortunately, however, the situation is a bit more complex than that simple statement implies. Oh no!

Started in 2002, Fables tells the story of Bigby Wolf (the Big Bad Wolf), Snow White, Prince Charming, and other characters from fairytales and folklore and their adventures in a fictionalized, modern-day New York City. It is widely acclaimed, and has led to several spin offs, including a video game. Willingham wrote the series with Mark Buckingham penciling most of the main run which concluded in 2015.  

On September 15, 2023, Willingham wrote on his Substack that, because of a number of ongoing disputes with his publisher, DC Comics, and because he has come to believe that copyright lasts too long, he has decided to give up his rights to Fables. He wrote, “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.”

This situation is fascinating and exciting for those of us who believe that a more permissive and open approach to copyright regulation can increase creative output and encourage the production of exciting new creative works, but it is also more legally complex than it may first appear. Unfortunately for Willingham (and for all of us), US Copyright law does not provide a mechanism for rightsholders to give up their rights to their works, and it is not clear whether a statement such as Willingham’s is good enough to dedicate something to the public domain.  

Let me explain.  

Copyright law clearly delineates how authors gain rights in their creative works and how they can give those rights to other people. Since 1978, copyright automatically attaches to “original works of authorship” that are “fixed in a tangible medium of expression.” You don’t need to publish your work, put a © on it, register it with the government, or do anything else. All you need to do is create and save your work in some semi-permanent way. Typically, the author of a work is also its rightsholder, but the law also allows for works for hire – where employers have rights over works produced by their employees that those employees create within the scope of their employment – and joint authorship – where two or more people create a work together and both hold rights over it. Rightsholders can then transfer their rights in their works – that is, give up all ownership over those rights – but they can only do so if they use a written and signed document.

However, authors don’t have to transfer away their rights to allow others to use those works. Instead, they can give others permission to use their works without a written and signed document. We call this permission a license, and rightsholders can create licenses in many ways, including verbally or potentially through something like a Substack post.  

(Could a Substack post could also be a written and signed document? Maybe, but what constitutes a written and signed document is a discussion for another day….)

With all this said, even though copyright is clear on how you can obtain and transfer your rights in your creative works, it does not contain a method to give up your rights. You can look through title 17 of the U.S. Code all day and you will never find a method for dedicating your works to the public domain. Outside of the code, there is common law on abandonment of property, and some great scholarship about how abandonment law applies to copyrighted intellectual property, but even so, the law in this space is at best underdeveloped.  

Enter CC0. Creative Commons, the organization behind the eponymous CC licenses, developed the CC0 public domain dedication in 2011 because of this gap in copyright law. CC0 provides a way for rightsholders to give up their rights in their works by irrevocably waiving all copyright and related rights in those works. And if that waiver doesn’t work for some reason, CC0 also creates an irrevocable license that essentially does the same time. So once a rightsholder puts CC0 on their work, they can no longer enforce their rights under copyright for it, thus effectively giving the work to the public domain.

Notably, Willingham did not use CC0 to give up his rights to Fables. Instead, he simply wrote that he has “purposely and irrevocably surrendered [his] Fables property to the public domain.” Is this good enough to do what he wants to do and give up his rights in Fables? Does this mean that Fables is truly in the public domain? Maybe, but we don’t know for sure.

For its part, DC Comics disputes Willingham’s claim and seems ready to take legal action against anyone who takes Willingham at his word. Moreover, Willingham was not exactly clear on what rights he wanted to give away. The examples that he provides for how other people can use his works seem to contemplate others using Fables to create new works – derivative works, in copyright terms. So maybe I could write a new Fables story or create a Fables animated feature. But he never says “now you can share digital copies of Fables so no one ever has to buy it again” which is something I could do if Fables is truly in the public domain.  

Where does that leave us? Unfortunately, I can’t say for sure. For now, I wouldn’t go out and copy Fables until we see how everything shakes out. In the meantime, if you want to read some Fables comics we have several in our collection (as well as other works from Bill Willingham). They’re great; you should check them out!