3rd August 2021
Over at Prospect, my column this month is on the (to me) fascinating relationship between the law of intellectual property and fictional characters – in this case superheroes.
Enjoy – and please leave any (non-irksome) comments or questions below.
NPR did a short series on a related theme earlier this year, if anyone’s interested…
https://www.npr.org/series/967404527/planet-money-buys-a-superhero
Congratulations on finally getting to write someting you actually wanted to write :)
Looking forward to the next one being *even geekier*
Great piece, David. No surprise to me that Neil Gaiman’s leading the way for creatives. Simple question: if you had to decide who of Gaiman or a studio exec would go on the Hitchhikers’ Guide ship full of hairdressers and telephone-sanitisers, which would you pick ?
Fascinating topic. George Lucas is very interesting in this regard. He apparently tried to buy the rights to Flash Gordon but when he failed, came up with Star Wars instead. If I recall correctly, his deal with 20th Century Fox when he made Star Wars meant they could not make a Star Wars film without him, but that he could not make the sequels without them. And then when Star Wars became a universe, he was fairly flexible in indulging other creators, I think describing it as his “sandbox that they are playing in”. The biography by Dale Pollock (from which I learned most of the above) is very good.
A curious aspect of this is that much of the successful Marvel and DC canons were created when future film adaptations are unlikely to have been considered. The creators were probably neither constrained nor inspired by future film deal possibilities.
Perhaps it is an accident due to the costs of production of comics, meaning a funding publisher is more needed than with, say, novels, and there is less publisher competition, that meant that Marvel and DC became repositories of interlinked intellectual property that make them such a modern day phenomenon. A filmmaking entity that encountered a run of a science fiction magazine might find the same diversity of excellent content but would find multiple copyright owners with varying agendas.
Sorry but I could not resist. So the industry is changing and the people creating the “Product” are not as exploited as they used to be and the Owners don’t get really poorer. maybe just maybe a concept the British Gig economy should look at ( or should have).
Sure there aren’t so many good creators as lets say nurses or lorry driver, although at the moment the jury is still out on that one imho.
Another interesting (perhaps paradoxical) dimension here is that corporate copyright ownership appears in some ways to be promoting increased creativity by creators. Wandavision and Loki which you have mentioned, along with multiple Spider-Man and X-Men narratives, are unlikely to have ever been developed by Stan Lee working alone. Identifiable characters are being given new interpretations – from Marvel and DC through Agatha Christie and James Bond to Postman Pat. Contrast this with plays by Samuel Beckett, where the author’s executor does not allow even a single line of the text to be changed in performance.
There are parallels in the pre-copyright era: Romeo and Juliet is based on earlier versions of the same story by multiple other authors. Hamlet is sometimes thought to be based on a similar ‘lost’ contemporary play described as the ‘ur-Hamlet’. The characterisations and facts in many of Shakespeare’s other plays are apparently lifted directly from Holinshed’s Chronicles. Nowadays these methods would probably be described as derivative, plagiarism or breach of copyright. ‘Homage’ is the judgment in only more rarefied and distant treatments.
I can think of few instances where authors have promoted their own copyrighted characters for use by others. Michael Moorcock encouraged it with his Jerry Cornelius character – but without apparently attempting to retain any control or derive commercial benefit. Other living creators may have done it through a corporate (and controlled) umbrella – Star Wars again comes to mind.