Experts say there's little precedent for characters like Superman's stature entering the public domain, and laid out obstacles people could face.
Warner Bros.
DC is going through a reset.
The comics and entertainment company's new corporate parent, Warner Bros. Discovery, recently announced a "10-year plan" for the DC brand on the big screen to better compete with Disney's Marvel.
But as DC charts a new path over the next decade, it could face even bigger issues at the end of the tunnel.
"Warner Bros. has a monopoly on making movies about Superman, Batman, and Wonder Woman, but the clock is ticking," Larry Zerner, an entertainment attorney, told Insider.
Beginning in 2034, DC's most prominent characters, and some of the most well-recognized characters in the world, will enter the public domain — at which point they could be up for grabs for use outside of DC and its parent company.
But Insider spoke to two legal experts that specialize in copyright and trademark law, who said that the matter is far more complicated than it appears on the surface, and that there's little precedent for characters of this stature and popularity — that drive millions of dollars in merchandising sales and lead big-budget tentpole movies — entering the public domain. The closest recent example might be Mickey Mouse.
"The courts will have a big say in sorting this stuff out," said Robert Greener, a New York City-based attorney. "There's no precedent I can think of ... this will be a developing area of the law."
Under US law, works introduced before 1978 enter the public domain 95 years after they were first published, officially taking effect the following January 1. In the case of Superman, Batman, and Wonder Woman, they made their first published appearances in 1938, 1939, and 1941, respectively. Therefore:
But these characters are the crown jewels of DC, and therefore extremely important to Warner Bros. Discovery. The company is likely to put up a fight, and anyone looking to take advantage of the them being in the public domain would face an uphill battle, Zerner and Greener told Insider.
For starters, Greener noted that there have been plenty of potentially "derivative" works of the characters — in other words, the copyright holder (DC) creates a second, separate work based on the original work.
"The Superman of 2022 is nothing like the Superman of 1938," he said.
When Superman was originally introduced, he could only leap tall buildings in a single bound — he couldn't fly. The character has gone through multiple revisions over the years, as have other comic-book characters, including Batman and Wonder Woman.
To put it simply, comic-book history is usually split up into several eras, including the Golden Age (1930s to 1950s), Silver Age (late-1950s to 1970), the Bronze age (1970 to mid-1980s), and modern age (mid-1980s to present).
"If someone was to do a Superman movie in 2034, and he didn't fly, is that still violating the copyright?" Zerner said. "This issue will be litigated."
The second biggest obstacle pertains to trademark law, the experts said.
"A copyright reflects the physical image, but a trademark has a public meaning and perception that goes beyond that," Greener said. "It's conceptual. The trademark covers brand identity."
He explained that Superman has for years been associated with a specific brand and storytelling at DC, and something else could "infringe on the public's mind with what they understand Superman to be."
"There would be two competitors in the market and trademark law doesn't like that," Greener said.
While there's no precedent on par with what could transpire from these DC characters being in the public domain, there are similar cases.
"Steamboat Willie," the first iteration of Mickey Mouse, is set to enter the public domain in 2024. That version of the character is far different from the modern-day Mickey Mouse, which would likely still be protected. Some Republican lawmakers have vowed to stop Disney from attempting to extend the copyright protection on Steamboat, The Los Angeles Times reported in May.
Still, Zerner said that artists would have to make clear that their version isn't associated with Disney.
"Trademark is an identifier," he said. "There isn't a character and company more synonymous than Mickey and Disney ... I don't know if there will be a surge of Mikey mouse ripoffs in the coming years, but there could be."
