Archive for the ‘Trademarks’ Category

Whoever owns the Man of Tomorrow?

Wednesday, April 9th, 2008
Contracts Copyrights Trademarks

Although I’m “retired” from blogging these days, I’ve had a number of people asking me about the Siegel family getting half the rights to Superman.  It’s a somewhat complicated situation, and depending on whom you ask it’s either a landmark victory for the little guy or a shameless money grab spelling doom for the greatest superhero ever.  But it’s really neither.  I’ll try to sort it out.

As a Distant Planet Was Destroyed…

Action Comics #1, panel 1It’s probably best to start at the beginning, which in this case is the early 1930s.  Two young men from Cleveland (one a childhood immigrant from Toronto) created a character named “Superman” whom they made the hero of a proposal for a newspaper comic strip.  Jerry Siegel and Joe Shuster shopped this strip around to the syndicates, but didn’t get any takers until 1938, when an editor at National Publications (the company that would become DC Comics) offered to buy it from them for $130.  

It wasn’t a good deal, but it was a deal, and they took it.  After all, this was nearly a decade into a global economic depression with wars looming overseas, and the sale included a promise that Joe and Jerry - by this time 23 years old - would have a job, writing and drawing the strip. Their first assignment was to rework the first several strips into a 13-page story which would be the lead feature in Action Comics #1.

It may be a familiar story, but the sequence of events is pivotal to this case. Siegel and Shuster didn’t create Superman as employees of National Publications, as an assignment from their boss. If they had, the character would have been National’s property, and that would be the end of it. In fact, they created him independently, then sold him to the publisher. The end result is nearly the same - the publisher owns it - but copyright law treats the situations differently.

We all know what happened after that: Superman became a huge success, spawning a newspaper strip, a radio program, motion picture serials, and a novel… all in just a few years. Shuster and Siegel tried to get National to compensate them better for their rather profitable creation, but were unsuccessful. To put it bluntly, Superman was worth far more to the publisher than Shuster and Siegel were, so the only time the company treated them well was when it was shamed into it, in the PR run-up to the release of Superman: The Movie. From a legal standpoint, none of this had any significance, because it didn’t affect the original facts of the matter: DC owned Superman, and Siegel and Shuster were just a couple of ex-employees. (The ownership of Superboy is a separate issue; I’ll cover that in another article.)

Congress Gets Involved

Meanwhile, the U.S. Congress was getting busy. To anyone who follows the history of copyright law, that’s an ominous statement. That’s because the reason Congress got involved was to protect the interests of big entertainment companies. At the time, the longest a copyright could last was 56 years, which would mean that Mickey Mouse would be in the Public Domain in 1984. With only years to spare, Congress acted quickly, extending copyrights to 75 years. Mickey would be securely in Disney’s hands until 2004. Superman would be the exclusive property of DC until 2014.

Or maybe not.

In a somewhat surprising outbreak of common sense and compassion, Congress acknowledged that they were giving copyright owners a free gift. When National bought Superman, their lawyer understood that the company would get exclusive rights to the character for 56 years at most. After that, he’d be public property, and their ability to make money from him would be undermined, because anyone could produce and publish Superman stories. The extra 19 years this legislation gave them was a windfall. A free gift.

Meanwhile, Congress recognized that it was common for unsophisticated creators, especially those in the early parts of their careers, to sell their creations to publishers in bad deals. Giving Siegel and Shuster $130 for Superman was like the legendary $24 for Manhattan: in retrospect an obvious rip-off. So Congress included a provision in the Copyright Act of 1976 that allowed creators who sold their creations like this to reclaim them when the original copyright would have expired. In other words, the free gift didn’t necessarily have to go to the current owner: if the original creator or his immediate family were still around to benefit from it, the free gift could go to them.

The Widow and the Orphan

Jerry, Joanne, and Laura SiegelJoe Shuster died in 1992 and Jerry Siegel died in 1996. But Siegel’s widow Joanne and their daughter Laura were eligible to reclaim their half of the copyright from DC. In theory, Shuster’s heirs could have done the same thing, but the 1976 law limited who was eligible to exercise this right. They didn’t want a second cousin once-removed or the church to which a childless author left his estate to try profiting from this provision. It was strictly for reasons of fairness to the creator and his family, not to transfer the windfall from one undeserving party to another. But Shuster didn’t leave any immediate family when he died. (More about this later.)

Joanne Siegel and her daughter Laura Siegel Larson filed the necessary paperwork to reclaim their husband/father’s copyright in 1999. DC understandably tried to prevent the transfer back. They tried negotiating with the Siegels. They argued that her transfer-termination notice wasn’t done properly. (Admit it: If you worked for a company that owned Superman, and your stockholders were bugging you about your profitability, you’d probably do the same thing.) But in March 2008, a judge ruled (mostly) in favor of the Siegels.

Action Comics #1, Clark and LoisMore specifically, the judge ruled that the 13-page Superman story in Action Comics #1 belongs to two parties: 1) DC and 2) the Siegels. As far as copyright law is concerned, Joanne and Laura Siegel wrote the story (Jerry’s contribution), and DC Comics drew it (Joe Shuster’s contribution). So they are co-creators of Superman. They are also co-creators of his alter-ego Clark Kent, his co-worker/love interest Lois Lane, his employer The Daily… Star, his boss… who apparently isn’t Perry White, his home planet… which isn’t named, at least in this story. And that’s about it. There are quite a few things associated with Superman that the Siegels can’t claim co-ownership of. Even though Jerry Siegel co-created many more aspects of the Superman mythos (e.g. Jimmy Olsen), he did that later, as an employee of National. So National automatically owned those things, which means DC owns them entirely today.

One could argue that the Superman of today is a different character than the one who appeared in Action Comics #1. That Superman didn’t fly, didn’t have X-ray vision, could only outrace an express train, and (by implication) could be harmed by a bursting shell. DC even presents the current Superman as a different character; the “original” Superman was sent into exile in the 1980s at the end of Crisis on Infinite Earths, and died recently at the end of Infinite Crisis. (You don’t have to be a raving conspiracy theorist to think that this is not a mere coincidence.) But it’s a weak legal argument. The Superman appearing in Action Comics #864 this month is clearly derived from Siegel and Shuster’s Superman, and the Siegels’ copyright entitles them to half of the profits from the character.

It’s Nice to Share

Co-ownership of a copyright isn’t like co-ownership of a house. In the case of physical property, if one owner wants to do something with it, he needs permission from the other owner. But with intellectual property such as copyrights, each owner is free to do whatever they want with it (within reason). The only real catch is that they have to share the profits. So DC is perfectly free to continue doing what they’ve been doing with Superman: publishing comics featuring him, licensing him for use in cartoons and feature films, selling overpriced statues of him to collectors, etc. But starting in 1999, they have to give half of the profits to the Siegels.

Superman logoLikewise, the Siegels are also free to exploit Superman. But they have some serious limitations on them, because of all the things they don’t own. If they were to produce and publish their own Superman comics, they couldn’t use Jimmy Olsen. Or Lex Luthor… or any of his classic villains. No Daily Planet. No kryptonite. Using superpowers which were added after Action #1… they might get away with that, but only after an ugly legal battle with DC, who’d be almost certain to sue them over it. I’d advise against it.

Oh, and they couldn’t put the name “Superman” on the cover. Or the familiar gem-shaped “S” logo. That’s because those are trademarks belonging to DC, and this copyright transfer doesn’t affect them. If any other publisher tried marketing their character as “the man of steel” (a registered trademark), DC’s lawyers would come down on them like a ton of bricks. So if the Siegels did it, the same thing would happen. The judge also ruled that the Siegels rights only extend to the U.S., and that DC’s international licenses stand as they are.

This means that - as a practical matter - the Siegels can’t do anything with Superman, and DC can do pretty much anything they want. (If DC were to turn him into a baby-raping sociopath, the Siegels could probably successfully sue them for damaging the character’s commercial value, but that’s not going to happen.) They just have to share the profits with the Siegels.

Women of Steal?

So the online detractors of the Siegels who shriek that “they’re only in it for the money”… are right. I don’t think Mrs. Siegel or her daughter have any interest in getting into the publishing business. They don’t have their own vision of Superman that they want to implement. They just want a cut of what DC is doing. And you know what? I think that’s just fine.

Personally, I think copyright terms are way too long. The old terms of 28 years with a 28-year renewal (if you’re still exploiting the property) were reasonable. I’ve even argued that copyrights should expire with the creator: Jerry’s daughter Laura didn’t create Superman, so why should she be entitled to control and profit from the character after her father died? My father’s law practice won’t keep writing checks for me after he dies, so why should her father’s work do that for her?

Superman vs. wife-beaterIn this case, there’s a good answer: Because her father was cheated. He didn’t get to profit from his creation while he was alive. If he had, his wife and his daughter would have inherited a small fortune when he died, instead of the little bit he was able to get out of DC. Copyright law is a bit broken, but given how it’s structured, letting the man’s elderly widow and his daughter start claiming some of the profits at this point is a simple matter of fairness. (If you want to bring this up again in another 40 years, when Jerry Siegel’s great grandchildren or whatever are making money off a character created by a man they never even knew, I’ll be happy to change my tune. But for now, I like the sound of this one.)

Man of Tomorrow

Speaking of the future, this story isn’t over. And the ending could turn out very badly for DC.

Remember Joe Shuster? And how his heirs weren’t eligible to reclaim his half of the copyright? About 10 years ago, Congress got involved again. Apparently someone convinced them that the requirements listed in the 1976 act for who could reclaim the copyrights were too restrictive, and when they extended copyright terms again in 1998 (to 95 years), they expanded the eligibility for reclaiming copyright to include more distant relatives. So when the 75-year copyright for Superman would have expired in 2013, Shuster’s heirs could do the same thing that Siegels did. And that would leave DC with no copyrights to Superman at all.

DC would still have the trademark rights, and nothing short of special legislation is going to take Jimmy Olsen and Lex Luthor away from them. But they’d be at the mercy of Laura Siegel Larson and the survivors of Joe Shuster for permission to use Superman, and in theory those heirs could demand that 100% of the profits be split between them, making it pointless for DC to continue using the character (unless they want to publish him at no profit just to keep the trademark licenses fresh). But the heirs wouldn’t be able to exploit the character themselves because of the trademark rights. This could end in a stalemate in which nobody can do anything with the character. Which is pretty damn unlikely, because I’m pretty sure everyone in the Siegel and Shuster families is familiar with the story about killing the goose that lays golden eggs. They’ll work something out… the only question is what. (My prediction is that DC will continue challenging all of this however they can in court, but end up with a cash buy-out of the heirs’ rights.)

In the meantime, the judge in this case has ordered both DC and the Siegels to negotiate a couple of unresolved issues: the ownership of any changes the DC has made to the character since the Siegel’s filed to reclaim their copyright, and how the copyright and trademark rights relate to each other (for example, the DC-controlled trademarks are based on copyrighted material the two parties now share). If they fail to reach a settlement on those points, it’ll go back to court. The court will settle the Superboy issue later. (The gist of that case is that the Siegels claim that Superboy is a separate character, with a separate copyright… which is theirs. And it is definitely not a coincidence that the name “Superboy” has not appeared in any DC comics lately.)

And What About Naomi?

There’s plenty of anxiety about what this bodes for the future of Superman, but this case also has fans nervous about the fate of other beloved characters. The good news (from that perspective) is that the case of Superman is relatively uncommon. Most of the superhero characters published by DC and Marvel were created “in house” by employees or commissioned by the publisher from freelancers, and in either situation the publisher has a pretty secure claim on the characters as “work for hire”. It’s the fact that Siegel and Shuster walked in the door of National Publications with a completed story and characters which they already owned, that gives their heirs the right to reclaim them.

Stan Lee, Jack Kirby, and Steve Ditko were all working for Marvel when they created most of the Marvel-U pantheon in the 1960s. The most notable exception is Captain America, whose real-world history is remarkably parallel to Superman’s, leading to the Joe Simon filing for his half of the character back. And again - perhaps not coincidentally - the original version of the character was recently killed off. But that’s another case for another day.

Icon icons

Wednesday, April 21st, 2004
Trademarks

One of the questions that’s come up following the announcement of Marvel’s new “Icon” imprint is with the name itself. The comics industry is often a trademark minefield that’s difficult to navigate safely, so any new name has to be carefully chosen.

The first trademark question that popped up was about the character Icon, who starred in his own series for several years during the 1990’s, produced for Milestone Media mostly by Dwayne McDuffie and M.D. Bright. Wasn’t Marvel’s Icon an infringement on his name? Maybe not. One of the key aspects of trademarks is that they expire if you don’t use them. Icon was cancelled several years ago, and the one collected edition is no longer in print. Marvel could (and presumably does) argue that Milestone and DC (the company that published the series) have abandoned the trademark. (Ironically, “Icon” was Milestone’s second choice for the character’s name. McDuffie wanted to call him “Paragon”… but there was a trademark conflict.)

Another possible conflict is Icon Comics. I know nothing about this publisher at this point except the logos Rich Johnston posted in his rumour column Lying in the Gutters. Given the fact that both are the names of publishing imprints, it seems like a pretty strong argument that Marvel’s use of it could lead to “confusion in the marketplace”. The similarity of the logos could compound that.

The logo similarities probably doesn’t indicate that Marvel deliberately stole the name and imagery from the other publisher, however. It’s just as easily explained by the concept of the name itself. An icon is a graphic symbol. Although its modern meaning refers mostly to computers, and its earlier meeting evokes totems of Roman Catholic worship, the idea also dates back to Pharoahic Egypt. If you want an icon for “Icon” and you don’t want to risk infringing on computer operating systems or offending some of your Christian readers, Egyptian symbols make sense.

I don’t know if either of these parties is actually pursuing legal action against Marvel. I doubt Marvel decided on the name “Icon” and this logo without first running it past their legal counsel, so they presumably think it’s safe. But like Icon himself, there’s plenty of historical precedent for a comics property having to change its name before going to press.

put it away

Super-Heroes® a Trademark of DC and Marvel

Friday, January 30th, 2004
Trademarks

The publisher of Super Hero Happy Hour, a comical comic series about superheroes hanging out at a bar during their off hours, is changing its name to just Hero Happy Hour. The reason has nothing to do with a change of focus of the series. It’s because they’ve been advised that “Super Heroes” is a trademark, belonging… to DC Comics. And to Marvel Comics. That’s right: both of them.

My goal here isn’t to argue whether it’s “right” or not, but to explore the facts and what the legal implications are.

Yes, it’s kind of a weird situation, but the two rival publishers filed a joint trademark registration of the phrase “Super Heroes”. One version of how it came to pass (which seems consistent with what other facts I’ve been able to confirm) is that it was precipitated by Mego making a line of action figures called “World’s Greatest Super Heroes” which included both Marvel and DC characters. This may have raised the question of who owned the trademark rights to the term (such as whether Mego could put “Super” on a package with a Marvel character in it). The joint registration may have been an easy way to settle it without a fight.

This co-registration allows either publisher to use the term in the marketing of their products, but no one else. It is USPTO registration #73222079, and gives them exlusive rights to the name in the marketing of “PUBLICATIONS, PARTICULARLY COMIC BOOKS AND MAGAZINES AND STORIES IN ILLUSTRATED FORM”. The registration cites a “first use in commerce” of 1966, and it was filed in 1979. Evidently no one challenged it, so it went into effect in 1981. Marvel and DC also share registrations of the name in the “MASQUERADE COSTUMES”, “BELTS”, and “TOY FIGURES” categories.

Meanwhile, Marvel and DC each own a few variations on the trademark, individually. For example, DC has a registration for “Legion of Super Heroes” (their long-running team series), and Marvel has registered “Marvel Super Heroes”.

There are other companies who’ve registered terms such as “Super Hero Ice Cream”, in categories of commerce that Marvel and DC don’t have anything to do with. They can do that because trademark registrations are category-specific. DC and Marvel don’t own exclusive right to the phrase for the whole universe of commerce. (Fred McDonald could probably start a software company called “McDonald’s Software”, for example, as long as he avoided using a rounded “M” in his logo, or anything else that might make it look like he was somehoe connected to Ray Kroc’s fast food chain.)

Trademarks don’t put any restrictions on ideas or the expression of them (like copyright does). So while Marvel and DC might jointly own “Super Heroes”®, they don’t own the concept of super-heroes. This doesn’t give them a lock on the super-hero publishing market; they’ve managed to maintain their joint dominance of that by various other means (some less ethical than others).

The trademark registration does not mean that only DC and Marvel can use the phrase “super heroes”. It means that only they can use it commercially. You and I can talk about “super heroes this” and “super heroes that” all we want. We can fill a whole book with the phrase. That’s because this is a trademark, not a copyright. (The differences between copyright and trademark are pretty substantial. I could go on for kilobytes about it.) I could even revive my childhood team “the Union of Super Heroes” and publish a series featuring them. DC and Marvel couldn’t do a thing to stop me.

But I couldn’t put that name on the cover, because DC & Marvel’s trademark prevents me from using “super heroes” as part of the marketing of a comicbook (or a costume or a toy figure or a belt). And the title is obviously a big component of the marketing. That’s where creator Dan Taylor and “guerilla publisher” GeekPunk ran afoul of Marvel and DC’s legal departments. I suspect that this is part of the reason why Malibu Comics decided to refer to the heroes of their Ultraverse comics as “ultras”, so they’d have freedom to use this term wherever and however they wanted, including the books’ covers, action figure packaging, etc.

The trademark also doesn’t mean that you can’t use just “Super” or “Heroes”. In fact, trademark registrations routinely declare that they’re not claiming the exclusive right to use some subset of the phrase they’re using. Putting this disclaimer on it makes it easier to get the registration approved, because it means the US Trademark Office doesn’t need to research whether anyone’s used “Super” as a brand of comicbooks. So you could publish “Super Comics” without conflicting with this trademark. (Of course you’d probably run into some problems with DC alone, who’d argue that it conflicts with their trademark on the name “Superman”.)

Some fans (and to a lesser extent, Taylor) have groused that The Big Two are picking on the little guy here, and there’s certainly an element of that here. Why else register the term (at a time when Marvel and DC together clearly dominated the comics business) if they didn’t intend to use it to keep other publishers from using it to promote their own books?

But it’s also true that DC and Marvel have some level of obligation to do this. Unlike copyright and patent registrations, which last __ years and you have pretty much absolute rights for that whole period, trademarks have indefinite terms. They last as long - but only as long - as you maintain them. First of all, that means you have to continue using the trademark. If you don’t it lapses into the public domain and anyone is free to use it. (See Captain Marvel vs. Captain Marvel for more about that.) Second, you pretty much have to sue anyone who infringes on it, or a competitor who tries to treat it as a generic term. You can’t just turn the other cheek if it’s a publisher you “like” (assuming they feel that way about GeekPunk) and then go after someone you don’t. You have to be nasty to everyone, or the judge is likely to decide that you weren’t serious about it, or you gave the public mixed messages.

It’s important to note that this is subjective. There isn’t a formula you can plug all this into and get an answer. The American judicial system is based on people making decisions based on what they’re told and what they feel is right. (Personally, I like that fact. I don’t trust machines to make decisions for humans.)

Some years ago, Johnson & Johnson put a fortune into pushing the phrase “Band-Aid® brand bandages”, to reinforce the idea that it’s a trademark, not a generic term for little plastic things to put on boo-boos. The Kleenex® and Xerox® people went through similar efforts. That’s because it’s possible for a registered trademark to become generic if enough of the public use it that way.

You could argue that this has happened with “super hero”. If GeekPunk (or some other publisher of comics featuring heroes with supernormal abilities) wanted to challenge the Big Two’s trademark rights, they’d have to demonstrate to the court that “super heroes” is no longer associated in the minds of most consumers with just Marvel’s and DC’s characters. I’m not sure what the burden of proof would be, but I’m sure you’d have to do more than wave your arms and point at Spawn, Savage Dragon, Madman, He-Man, and Go Boy 7 as other examples of “super heroes”. DC and Marvel would probably assert that, if you asked people to name “super heroes”, most would recite a short list of Marvel- and DC-owned characters only.

The case could probably go either way, depending on how well it was argued. There’s probably some relevant case law out there that I’m not in a position to research, which could also tip it one way or the other. I suspect it hasn’t been challenged (and won’t be) for much the same reason DC and Marvel agreed to share the term in the first place: it isn’t worth the time and money to fight over it. At least that’s what GeekPunk has decided.

Captain Marvel vs. Captain Marvel

Tuesday, October 14th, 2003
Copyrights Trademarks

[AndyRooneyVoice]You know what really bugs me? Captain Marvel. I never know which one somebody’s talking about! I’m not talking about the fact that there’s a new Captain Marvel, or Captain Marvel Junior and Captain Mary Marvel, and so on. I’m talking about DC’s Captain Marvel and Marvel’s Captain Marvel. What’s up with that?[/AndyRooneyVoice]

Seriously, this is exactly the kind of confusing situation that intellectual property laws were supposed to prevent. But obviously they haven’t. How can two different companies both have characters called Captain Marvel? Isn’t that a violation of copyright or something?

Well, it’s not a violation of copyright, because you can’t copyright a name. Copyright can only be applied to something more substantial, like a novel, or an essay, or (at the short end of the scale) a short poem. A complete comicbook character can also be copyrighted. But that means his appearance, his origin, his characterisation, etc. Not his name.

Character names are only covered by trademark law, and trademark protection isn’t nearly as broad or secure as copyright protection. It only covers “marks” (such as logos or names) used “in trade” (the packaging and marketing of goods and services). Think of it this way: copyright applies to the entire contents of a book, from cover to cover. Trademark applies to only the cover. That’s because the cover is what shows on a retailer’s display rack: the marketing part.

The idea is that the producers of a product should have a way to uniquely identify their product, to avoid their competitors using the same name or logo to trick people into buying theirs instead. If Pepsi could put the name “Coca-Cola” and that curvy white line with a red background on their cans, that would lead to what’s called “confusion in the marketplace”. Even if they put “Pepsi” on the back of the can, and it tasted like Pepsi, people might still mistake it for The Real Thing.®

The DC “bullet” is a trademark. The Marvel “M” is another one. And so is the name “Captain Marvel”. Marvel Comics owns it. This means that DC can’t put that name on the cover of their books… not even the ones starring their own Captain Marvel. This is why his most recent comics series was called The Power of SHAZAM! instead, and why the 1970’s Saturday morning TV show was simply call SHAZAM! As a consequence, the character is actually better known among the general public by that name, rather than his own.

It didn’t used to be that way. Captain Marvel (referring to the lightning bolt guy) used to be a household name. The words “Captain Marvel” could be seen on comics racks across America. For a while, his creative, whimsical superheroic adventures sold even better than Superman’s. But in those days, he was published by Fawcett, a rival of DC Comics. DC sued, claiming that Fawcett’s flying, super-strong, caped hero was a rip-off of theirs. To an extent, he was, but no more so than countless other superheroes to come along since 1938. He was actually unique from Superman in many ways (his alter ego was a human boy, he was magically powered, and the lightning bolt schtick was completely original). But Cap was a threat to DC’s übermensch, so they sued. Fawcett fought for years, but eventually settled, and agreed to stop publishing the character. The name “Captain Marvel” disappeared from the public eye for over a decade.

One thing that makes trademark rights different from copyrights is that they don’t last a fixed term and then expire. They can last forever. Or they can evaporate from disuse. So as the years passed and the name “Captain Marvel” lay unused, it lapsed into the public domain. Then some clever folks at Timely Comics got the idea of rebranding the company as “Marvel Comics”. If they’d done that during Billy’s heyday, Fawcett could have sued them for using that name, but it was no longer an issue. Then Marvel dusted off the name “Captain Marvel” and applied it to a new character, one whose real name was Mar-Vell. They registered it as a trademark. It was theirs.

More time passed, and DC licensed the rights to Fawcett’s catalog of characters, including Billy Batson and his alter ego. They later bought the property outright. They’d acquired the copyrights, but the associated trademarks no longer existed. And Marvel now had a lock on “Captain Marvel”. Which is pretty much where we are today.

Mar-Vell has never reached Billy’s public familiarity; if you asked people on the street to describe “Captain Marvel” most would just shrug or stammer, but of the rest, the majority would describe the guy with the lightning bolt on his chest. Between his comics run in the 1940’s and his TV show in the 1970’s, he’s simply had more exposure. Being one of the few superheroes to die and stay dead hasn’t helped Mar-Vell’s current familiarity either. But with trademark law firmly on his side, he can beat Billy Batson any month of the year, in any court in the land.

Then there’s the matter of Billy Batson’s British cousin: Marvelman. But that’s a huge can of wiggling, writhing, and still-very-much-in-question intellectual property worms. I’ll save that for another time.

Jenny Everywhere, open-source hero

Monday, October 6th, 2003
Copyrights Trademarks

Jenny Everywhere is an interesting concept: a comics character that tries to follow the intellectual property model of open-source software (such as the Mozilla web browser, the OpenOffice productivity suite, the Linux operating system, etc.) The idea is that, unlike the proprietary approach taken by so many software companies and nearly every comics publisher out there (from Marvel and DC, through the indies, and all the way to your typical zinester), the original creators of Jenny Everywhere are giving her away for anyone to use. In an era of unprecedented attention on creator rights and ownership, Jenny puts an odd twist on the question.

The concept of the character meshes nicely with the idea of open licencing. She’s called “the shifter”, a person who exists in all dimensions at once. As her creators explain it, her “super power” is to not be bound by continuity. Which is pretty much an essential aspect of any character so freely licenced.

She’s certainly not the only freely available comics character. For example, the Yellow Kid, the Katzenjammer Kids, Mutt and Jeff, and Krazy Kat are all in the public domain, because the copyrights on them have expired. This is true of any character first published in 1922 or earlier. There are also some more recent characters who’ve moved into the public domain due to failure to register or renew the copyrights, back when that was still required.

She’s not the only character in the modern era to be openly licenced, either. I’ve heard of other characters whose creators have taken a “whatever” approach to other people using them. But as far as I know, Jenny is the first to have an explicit licence attached to her. Dave Sim - a long-time critic of corporate ownership of characters - has said that anyone is free to use Cerebus if they want. But he retains ownership of the trademarks (the name and logo for “Cerebus” and the distinctive likeness of his aardvark character), which would make it rather difficult for anyone else to publish their own Cerebus comics after Sim finishes next year. And he still controls the actual artwork and stories he and Gerhard have produced over the past couple decades, so bootleg reprints are also not allowed. He’s merely saying that if you want Cerebus to appear in a book you’re creating, go ahead. Just don’t expect him (or anyone else, really) to accept those stories as “canon”.

Jenny Everywhere is not in the public domain. Her creators have stipulated that a notice be included with any stories people produce: “The character of Jenny Everywhere is available for use by anyone, with only one condition. This paragraph must be included in any publication involving Jenny Everywhere, in order that others may use this property as they wish. All rights reversed.” This requirement by itself means they are explicitly not releasing all rights to the public. They are merely licencing her, free of charge, and with full creative freedom. They ask that people try to keep her generally “on model” and “in character”, and suggest how they’d like the character to be used, but given the terms under which they’re licensing her, they can’t enforce any of that. Of course, if you vary too much from the core of the character, you’ll have a difficult time convincing people that she’s really Jenny Everywhere. (Electric Blue Superman, anyone?)

This license is inspired by the various “free” or “open source” software licences (the two terms are pretty much interchangeable, despite some different shades of intent), but it varies from most of them. The requirement that the licence itself be included with any use of the character is typical of open-source software licences. The GNU General Public Licence is the best known free software licence and is quite a bit more complicated than this one. For example, it has provisions that require anyone distributing software licenced under the GPL to also provide the source code (including any changes they’ve made) and licence that under the GPL or another similar licence. This effectively requires that any changes or additions to a GPL program be given back to its developers… or anyone else.

The “source code” provision makes no sense in the comics context (which is why I prefer to call her “openly/freely licenced” rather than “open source”), but the “give it back” aspect could apply. However, Jenny’s creators don’t require that you relicence your own Jenny stories as freely as they’ve licenced the character. They don’t even claim any rights to your material for themselves. So if you don’t want people copying your Jenny story, you don’t have to let them. In this sense, the Jenny licence is more like the Lesser GPL, which allows developers to use and distribute GPL software libraries (the character of Jenny) for their proprietary software (proprietary comics).

Many people are under the impression that you cannot charge money for GPL-licenced software, but this is not actually true. If you use openly-licenced software, then add your own software on top of it, you can charge as much for that as you want. But the “free” part has to remain free. Likewise, the Jenny licence allows you to sell Jenny stories for money. But you can’t actually sell Jenny along with them. The right to use her comes along freely, meaning exclusivity or ownership isn’t possible. So you can’t submit Jenny stories to Epic Comics (because Marvel wants to own anything they take the trouble to publish).

Although there’s no formal “canon” of Jenny Everywhere stories, there is a form of official sanction for some of them. The original creators of Jenny produce a print edition in standard comicbook format, to which independent creators can submit their work. But like any publisher, they reserve the right not to accept whatever they don’t feel like accepting. Fortunately, this works a lot like using a creator-owned character: you can take your story and submit it to another publisher or even publish it yourself. In this sense, a freely-licenced character is as good as a creator-owned one.

They don’t specifically cover this on the web site, but I would say that “Jenny Everywhere” does not qualify for trademark protection. Unlike copyright, which you can assert once and hold onto without effort until your grandchildren are dead, trademark requires you to actively defend exclusive rights, and they don’t appear to be doing that. So go ahead and put the name “Jenny Everywhere” and her picture (your own drawing, not someone else’s) in big bright colors on the cover of your book.

Jenny’s an interesting experiment, and I hope more people follow its lead. Freely licenced software has been a Very Good Thing for the technology industry, allowing the kinds of innovation that the proprietary model doesn’t always foster. It has the potential to foster the same kind of creative innovation in the comics universe. Although I’m a strong proponent of the right of comics creators to retain ownership control of their creations, I think the decision to give up that control (but not ownership) is an admirable one. I plan to join in some of the ongoing discussions about Jenny and the Jenny licence. And I’d like to do a Jenny story, to participate in the process.