The Siegel ruling is a model of clear legal reasoning, but because it’s written primarily for lawyers it leaves a number of basic concepts undefined. Among these: copyright and trademark.
Which one applies can make a huge difference in the protection your work receives. For example, the length of time for trademark protection is only ten years, but the trademark owner can keep renewing it indefinitely so long as the mark is being used in commerce. By contrast, copyright protection lasts for the life of the creator plus seventy years (in the case of works for hire, 95 to 120 years), but then that’s it–after the term expires, the material enters the public domain.
The various rules for copyright and trademark protection can get a bit confusing, but here’s a relatively simple way to distinguish between the two. Copyright protects original creative works, such as music, art, and writing. Trademark serves to identify and distinguish products in the marketplace.
Often the line between the two seems pretty obvious. For instance, this post is an original work of authorship protected by copyright; it isn’t a word, name or symbol being used to market goods or services. If you look on your computer, however, you’ll see a logo–an apple, “Vaio,” “Dell”–whose primary function is to tell you the brand.
But this is also where it gets a bit more complicated. Creative works don’t always fall neatly into one or the other category. Consider this original work of graphic design that DC registered as a trademark back in 1941:
Besides being a trademark, the graphic nonetheless also enjoys copyright protection as an original creative work. While trademark protection may seem like overkill, DC would have been foolish not to get it–not only were they using the image on covers at the time, but even after the copyright expires, the image will continue to have trademark protection so long as DC keeps the registration alive.
Here’s where the Siegel case gets particularly tricky. DC has an array of trademarks related to Superman, many of which include designs arguably derived from the copyrighted Superman material in Action Comics #1. The “S” symbol, the Superman character, his home planet and Lois Lane–these are but a few of the elements that the Siegels’ attorneys claim have been incorporated into trademarks used to identify or distinguish branded products.
Over the next few days we’ll have a lot more to say about copyright, trademark and what this means for the future of Superman. Until then, if you’re interested in finding registered trademarks for comic characters or companies, here’s the trademark search page for the U.S. Patent and Trademark Office.
April 1st, 2008 at 10:36 pm
Copyright and trademark have more significant differences, specifically copyright is meant to protect the creator’s work and trademark is for consumer protection. DC trademarks the name Superman so no company can pretend to create licensed materials without the license, most specifically for endorsing products. I can make an ad saying Mike’s Coke is better than Coke-Cola, but I can’t say Mike’s Coke is Coke-Cola.
Copyright is automatically granted to protect the copying of a creative work, but can be excerpted under the rules of fair use.
Several companies (and even the California state) are trying to expand the rules of trademarks to act more like copyrights which grant more protections over how others can use the creative works.
April 1st, 2008 at 10:56 pm
This answers one of my questions from earlier today… Perfectly clear now!
It does create some new questions… Such as whether or not the character we recognize as Superman, and the trappings that we also recognize as being uniquely “Superman,” will enter the public domain in the next 25-50 years(not to mention Batman, Mickey Mouse, or Bilbo Baggins one day).
Can renewing the trademark work to prevent that? Your comments above seem to suggest that. Hopefully you’ll discuss all of this in a future posting.
Thanks again, Jeff! Fascinating stuff!
April 2nd, 2008 at 7:19 am
A lot of stuff we regard as inherently Superman wasn’t in Action Comics #1, such as Luthor, Kryptonite, Krypton, the ability to fly, etc., so how does it impact on them?
April 2nd, 2008 at 7:21 am
A little trivia on trademark that might help explain it…
“Trademark” is derived from the concept of having a particular name associated with a particular brand. “Brand” literally goes back to the concept of the cowboy who would put a hot iron to his cattle with some symbol or name: there’d be no mistaking which ranch the cow came from.
Trademark, then and today, protects the owner’s reputation. Let’s take the name Coca-Cola, for example. If a generic soda company packaged its drink in Coke bottles, one of two things could happen. First, the generic company could thrive on Coke’s good name, arguably taking away profits that rightfully belong to Coke. Second, if the generic cola is lousy, Coke’s reputation would suffer, because people would assume Coke made the lousy product.
A great example is Disney’s characters: DC has no literary rights to, say, the basic stories of Cinderalla, Snow White, Pinocchio, or most of its other fairy-tale characters. However, the Disney images of those characters do belong to Disney under trademark law. (Disney’s specific film versions of those characters belong to it by copyright, but that’s another matter.)
So, applied to Superman: once the character enters the public domain for copyright purposes, anybody can publish a Superman book, comic, movie, etc. DC will likely still own the trademark, meaning that the “S” shield and Superman’s traditional appearance will all be DC property. An independent Superman work would need to look unmistakeably different from DC’s version. I suppose a blond, African-American Superman in a green and yellow outfit would work well (for trademark purposes, anyway).
April 2nd, 2008 at 9:04 am
That site was confusing, I searched for Batroc the Leaper and couldn’t find his trademark…or whatever.
April 2nd, 2008 at 9:23 am
That is because no man may own Batroc the Leaper.
April 2nd, 2008 at 9:37 am
The reason why you can’t find any Batroc under Trademark is because no one’s made any Batroc comic… but if you look at Copyrights: http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=6&ti=1,6&Search%5FArg=Batroc%20the%20Leaper&Search%5FCode=TALL&CNT=25&PID=6558&SEQ=20080402093634&SID=2
April 2nd, 2008 at 9:58 am
Thanks, Howard! That made my day!
April 2nd, 2008 at 12:55 pm
a question, could DC continue using some of the trademarks, even after losing all the copyrights, by just-say, putting Mr. Majestic in a Superman outfit not owned the Siegels and slapping him in Superman? maybe throw Supergirl in Action comics? that way even if they’re ordered to stop using certain copyights they can use the few they have and keep the trademarks.
April 2nd, 2008 at 1:52 pm
So in terms of copyright how does that affect the comic books themselves, so the stories enter the public domain as well? For instance, what about the previously published material containing Superman in them, could anyone compile their own Showcase type anthology and publish it? Also, do the copyrights lapse on the stories themselves? In twenty years could someone publish a collection of earliy superman stories from the 1930s, but not the 1940s because the copyright has not yet expired? Or am I thinking about this the wrong way…?
April 2nd, 2008 at 3:04 pm
In terms of the questions about expired copyright, a good answer for you are the Superman short cartoons produced for theaters in the 40s. They have entered the public domain for whatever reason, so when you look at the dollar dvd bins you see all sorts of different collections, but most of them feature things like a red Superman with a white S, stuff like that. DC still has the image of Superman trademarked, along with the various elements of his costume, etc etc. Even if your product contain public domain material, you still cannot use the trademarked images no matter how old they may be. Hence the Disney examples as well. Anyways, the question is mostly moot at this point. Action Comics #1 would not fall into the public domain until 2026 at the earliest under current law, regardless of who owns it, and that is assuming the copyright laws are not extended further. Under current law, because the copyright has reverted to the creator, you can also interpret the copyright to last life of the creator plus 70 years, meaning it won’t end until 2066.
April 2nd, 2008 at 3:15 pm
Chris, you are correct. Assuming copyright expired on Action Comics #1, the copyright doesn’t expire for Action Comics #2 until the following month (or whatever schedule they were released on). Also, your cover would have to be a different image and logo, as I mentioned before.
To correct my previous post, I meant the dvds feature a man in a red suit on the cover, the content of the dvds is still identical to the original shorts (if somewhat low quality usually).
Also, the copyright would expire 2033 at the earliest, not 2026.
April 2nd, 2008 at 3:32 pm
So looking at that trademark website the Spider-Man 2099 license is dead. I wonder if a company like IDW could pick it up and how much of the characters histrorical ties they could use.
April 2nd, 2008 at 3:34 pm
No comic company is able publish anything with “Spider-Man” in the title as long as Marvel maintains its trademark.
April 2nd, 2008 at 8:56 pm
No, actually the Superman material in Action 2 will not go public domain the month after Action 1. It will go PD long before. That’s because Action 2 was work-for-hire, which goes public domain after 95 years (so it will be PD in 2033) while the Action 1 stuff wasn’t work-for-hire, and the copyright lasts until 70 years after the death of the creator… in other words, until 2066!
April 4th, 2008 at 12:22 pm
@Nat: Congress actually established a firm 95 year limit on the copyright term for pre-’78 material in its renewal term. The text of the relevant statute is in Section 304(b) of the copyright statute, available here: http://www.copyright.gov/title17/92chap3.html#304
The provision basically is a hybrid of the extensions in the ’76 and ’98 reforms with the limited fixed terms of the 1909 Copyright Act.
Counterintuitive, I know, but hey, that’s law!
April 4th, 2008 at 8:54 pm
Ach, you’re right! Thanks, and my apology for any confusion I’ve generated.
February 21st, 2010 at 10:30 am
If someone was writing a short story and mentioned seeing “Superman” at the movie theatre, and he had a outfit of red and blue, would that come under copywrite laws and not be able to be published?
Or even in the case of Disney movies, the same questions would arise. I went to the movies, and saw Snow White. Or I wore a Snow White costume for Holloween. Or I names all of the 7 dwarfs in the story would that be under copywrite laws?
I understand no illustrations of any of the characters, but just mentioning them in a story, would it infringe on copywrite laws?
July 18th, 2012 at 4:12 am
I want to know will it cause any copyright infringement if someone wants to give away as free toy a ‘Superman’ Toy along with his product as a promotion. The promotion would be in India, where i suppose Superman is not registered.
Thanks for the help
Regrds
April 12th, 2013 at 4:20 pm
Howdy! This blog post could not be written much better! Reading through this post reminds me of my previous roommate! He continually kept talking about this. I am going to send this post to him. Fairly certain he’ll have a good read. I appreciate you for sharing!