Can Bill Willingham release ‘Fables’ into the public domain?

Fables is a popular comic book series written by Bill Willingham that follows characters from fairy tales who have formed a clandestine community in New York. Willingham is the sole writer of the entire series, which features artwork from several artists, primarily Mark Buckingham. The comic books are published by Vertigo, a DC property. While I’m not personally acquainted with the series, it’s known for its inventive take on cultural archetypes and has even had a few crossovers with other DC properties, especially Batman.

Recently, Fables has made headlines because Willingham has decided to relinquish his copyright and release the work into the public domain. He mentions that when he signed with DC, it was led by honorable individuals and any conflicts would be resolved amicably and swiftly. However, he now feels that “the Fables properties have fallen into bad hands.” He believes that releasing the works into the public domain is the most practical decision:

“Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.”

This is an incredible statement, and perhaps a sad indictment on the sorry state of copyright as a whole. He goes on to make an interesting case that copyright perhaps shouldn’t last so long:

“In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.”

Beyond the intriguing discussion about the merits of copyright, Willingham has touched on a particularly compelling copyright issue. You might have noticed that I phrased the title of this blog post as a question; this was intentional. “But hold on, Andres,” you might interject, “surely an author can dedicate their own work to the public domain! It’s their property, and they should have the freedom to do with it as they please!” I once held that belief, but as with many aspects in the crazy world of copyright law, the issue is more nuanced than it appears.

One challenge lies in the inherent nature of copyright law. Unlike other forms of IP, copyright doesn’t necessitate registration, adhering to the Berne Convention. In some respects, it “flows from the pen to the paper.” This absence of formalities (with a few notable exceptions) implies that while it’s relatively straightforward to obtain, provided the criteria for subsistence are met, relinquishing it can be somewhat tricky. This is because having no registration system, it becomes more difficult to let people know that a work no longer has copyright, there is no recognised “No Copyright” symbol, and while copyright law tells us how to acquire protection, it does not say how to abandon such protection. Should you use a letter? A blog post? An advertisement in a national newspaper? A notarised deed?

This raises a crucial question: Imagine you’re someone who came across a social media post where an artist declared they had relinquished their copyright. Later, the artist changes their mind, deletes the post (which hasn’t been archived), and then sues you for copyright infringement. Is that permissible? How would you defend yourself and prove that you weren’t infringing?

Surprisingly, this is a legal question that has not received a lot of attention from legal scholars. A few years ago WIPO commissioned me to write a comparative analysis of different jurisdictions with regards to copyright relinquishment (report here, and Prezi here). I was operating with very narrow terms of service so I was only told to look at a few jurisdictions, of the ones studied only Chile and a few others had provisions that specifically allowed for an author to abandon their copyright. Regarding the UK, Phillip Johnson wrote a great article in 2008 on the subject, and he concluded:

“There is no authority in English or Scots law that copyright can be dedicated to the public domain.The authorities relied upon in favour of this proposition are ancient and sketchy at best (Miller, Rundel and Platt) or widely discredited (Catnic). Combine this with the English courts’ long reluctance to allow a person to give up a legal right and the Scots rule transferring rights to the Crown, and it is difficult to see how copyright can be dedicated to the public.”

Willingham is from the US, so what are the rules there? There’s silence on the subject in the actual copyright legislation, just as with many other countries. The US does have a registration system for the purposes of litigation, so this makes abandonment a bit easier. If the work that is intended to be abandoned has been registered, then the US Copyright Office allows owners to deposit a declaration of abandonment (section 2311 of the Copyright Compendium), the effect of this is not clear, other than making a memory of such decision for registration purposes, the USCO is clear that it will record these documents “without offering any opinion as to the legal effect of the document.” In the best article on the subject that I’ve read, Fagundes and Perzanowski looked for records of abandonment, and found only 190 from 1973 to 2018.

But what about the courts? In the same article, Fagundes and Perzanowski conducted an exhaustive review of existing case law. They found only 17 instances where courts determined that a work had indeed been abandoned, out of 163 decisions that directly addressed the question. By any measure, this is a remarkably low success rate. I won’t delve into the specifics, you should consult the paper for a comprehensive discussion, but the authors observed significant conceptual confusion from the courts regarding this topic. When we also factor in various other considerations, such as the practicalities of abandonment, it’s reasonable to question whether Mr. Willingham has truly succeeded in relinquishing his copyright over ‘Fables’.

Because of all of the above confusion, there is a much better mechanism for those people who want to dedicate their work into the public domain, and this is a Creative Commons licence known as CC0. This is a clever legal hack that acts as both a licence and a public domain dedication. So in jurisdictions that allow abandonment, the document acts as a dedication of the work into the public domain. Where copyright law doesn’t allow this, then it works as a full licence of all of the exclusive rights of the author, in other words, you can do anything with the work, just as if it was in the public domain, with no conditions whatsoever. And even in case that this licence was struck down in court, the CC0 legal text contains a unilateral promise not to exercise any of the existing copyright.

Concluding

This situation is indeed intriguing, and it would be interesting to see if DC will pursue any legal action to challenge it. While more case law in this area would be beneficial, I genuinely believe that DC has little to gain by contesting Mr. Willingham’s intentions in this matter. There are several other unresolved questions that I won’t delve into, such as the fate of the artwork. My assumption is that Willingham is only relinquishing the written content of the comics—the narrative itself—not the artwork, which likely remains DC’s property. However, he has declared to everyone, “you have the rights to produce your Fables movies, cartoons, books, toys, and utilize the property in any way you see fit, because it’s yours.”

If his wishes stand, the public domain will be all the richer for it.

Update: And unsurprisingly, DC have responded that ‘Fables’ is not in the public domain.