DISCLAIMER: I am not a lawyer, and I am neither allowed nor qualified to give legal advice. What follows is my understanding based on owning and operating a publishing company for over 15 years and having worked in a Canadian law firm as a researcher. If you want to act on anything you read in this article, make sure you consult an actual lawyer first.
A couple of days ago, Bill Willingham stunned the world of comic books by releasing Fables into the public domain. As he stated in his declaration on Substack, while he can’t get away from an exclusive contract with DC Comics, nobody else has signed his contract, and with this move they can now release as many of their own original Fables stories as they want.
Unfortunately, this would almost certainly get any writer or artist who tried sued into oblivion by DC Comics.
Before I go any further, I want to make it clear that my heart goes out to Mr. Willingham. By all accounts, it sounds like he is stuck in an exclusive deal in which DC Comics is operating in consistent bad faith. No creative artist should have to deal with this sort of nightmare, and it is unfortunate that even now so many are.
If you look up Bill Willingham in the US Copyright Office records, you will find 162 entries, many (if not most) are for various Fables books and collections. A sampling of 9 of these entries all show that DC Comics is listed as a copyright claimant. How they are listed varies — for example, Fables: Storybook Love (2004) is listed as “DC Comics (employer for hire)”; Fables: The Last Castle is listed as “Bill Willingham & DC Comics”; and Fables #82 is listed as “Bill Willingham. Address: c/o DC Comics, 1700 Broadway, New York, NY, 10019 United States. DC Comics, Transfer: By written agreement. Address: 1700 Broadway, New York, NY, 10019 United States.”
What this means is that as far as the US Copyright Office is concerned, DC Comics has either partial or full ownership of Fables. This in turn gives them the “standing” (or, put another way, the legal right) to attempt enforcement of that copyright in a court of law.
“Attempt” is the operative term. They would not necessarily succeed. Mr. Willingham’s understanding is that he is the sole owner of the copyright to Fables, and there are scenarios in which this can be true despite the Copyright Office records. For example, the copyright could have been registered and then transferred to him by contract without the Copyright Office being notified of the change of ownership. Alternately, he could have signed a contract with DC giving him sole ownership of the rights, only to have DC register the copyright as belonging to them anyway (which would be both scummy and probably very illegal). Unfortunately, it is also possible that either Mr. Willingham’s understanding of the contracts is mistaken, or that DC tricked him into signing a contract giving them ownership of the rights in the small print.
Either way, the only place this would be settled is in a court of law. As soon as DC Comics spotted somebody publishing their own Fables story, they would almost certainly pounce and file for copyright infringement. At this point, the defendant would have to prove the following to the court:
- That the rights were transferred by contract to Mr. Willingham. This would be done by providing the contract to the court as evidence.
- That Mr. Willingham wrote the Substack article transferring the rights into the public domain. This would be done by getting him to sign a sworn affidavit that he had written the article.
- That Mr. Willingham’s article did indeed transfer the rights into the public domain.
The first two of these steps would be pretty easy and inexpensive. After all, they amount to getting a copy of Mr. Willingham’s contract and getting him to sign a piece of paper saying that he wrote the article. It’s the third step that would be expensive and potentially bankrupting.
Assuming that Mr. Willingham’s understanding of his contract is correct, this now leaves questions that need to be answered. For example, can one transfer a copyright into the public domain without a signed legal document sent to the US Copyright Office? In the case of those Fables copyrights with Mr. Willingham and DC Comics jointly owning the rights, can one rights owner transfer a copyright into the public domain without the consent of the other? Also, many of the copyright records list DC Comics as the original rights holder for the illustrations, giving them the right to recover these copyrights from Mr. Willingham 35 years after publication — is Mr. Willingham allowed to deprive them of this right by putting Fables into the public domain?
These are complex questions. Answering them would require dozens of hours of research through legislation and precedent, and not just of American law. In the absence of American precedents, precedents from other countries can be brought in to make an argument for one side or the other. And all of this research would be expensive (keep in mind that a good lawyer can cost hundreds of dollars per hour).
Further, the research to answer these questions would be taking place in the background of legal manoeuvring. A lawsuit can be considered comparable to a long war, with strategies and tactics, and attacks and counter-attacks. Just bringing a motion before a judge can cost thousands of dollars, and there would be several.
What this means is that whoever attempts to test Fables being in the public domain will almost certainly find themselves in a very expensive lawsuit. And, because of the publicity, this is not a case where DC can turn a blind eye — they will need to prevent this from becoming an “open floodgates” situation, and the best way to do that is by making public examples of people.
Ultimately, the safest stance is to take the Copyright Office records as gospel for the time being — or, put another way, Fables belongs to DC Comics until proven otherwise in a court of law.