Superman is going Public Domain: What's Next?

On January 1, 2034, unless something drastic changes with copyright law, the character of Superman will become a part of the public domain. That’s Superman, Clark Kent, Lois Lane, all that good stuff. The things that were introduced in that first year of the character. Superman is one of the rare characters that, if you read his early appearances, came fully formed: he was as he is, for the most part. Unlike, say, Steamboat Willie, who is so different from the character of Mickey Mouse that use of the character is still hotly debated, Superman is much more clear cut.

Or: Is it? Let’s go over some of the issues as we prep for an issue ten years into the future.

1. Copyright is WEIRD. Copyright is weird and tangely and there are entire legal professions devoted to sorting it out. People hang onto copyright claims for years after they should as it becomes the only way for business empires to retain their gravy train. Famously, the estate of Edgar Rice Burrows tried to exercise copyright claims over John Carter of Mars long after the property went into Public Domain, working from a logic that most people would not want to fight them even if they knew they were right. The Burrows estate banked on it being easier – and cheaper – for people to simply pay the family for the rights than to pay the lawyers needed to fight it (or, not use the character at all).

A then there’s the case of Sherlock Holmes, a character who went into public domain while the author was still alive because copyright rules were different back then, but novels produced after the laws changed were subject to claim. Sherlock existed in this weird limbo where nobody was claiming any of the books themselves were still under copyright, but until recently the Doyle family was claiming that a certain interpretation of the character was subject to copyright. To put it simply: Sherlock was portrayed a little nicer than usual in the final book that Conan Doyle wrote, and as a result, for years, the estate claimed that if Sherlock was “nice” then it was copyright infringement. So in BBC’s Sherlock because the character was mean, that was okay. But in Enola Holmes, because he was a nice older brother, that was infringement. And they really tried to make that case, it was weird. Thankfully the public domain status of Sherlock has been firmed up since, and now Sherlock can feel any emotion he wants.

But that was silly… right? You can copyright a character, but not an emotional reaction that character has… right? Well, we don’t know, because it never went that far in court as to actually get a decision. So there’s some people who claim you can, some people who claim you can’t. Which is bananas.

Another well-known example: The Wizard of Oz book by L. Frank Baum is Public Domain. The movie based on it is not. As a result, anything added by the film to the property cannot be used. Red slippers? Can’t use them, they were silver in the book. Green witch? Can’t use that, they didn’t specify her skin colour in the book. The rights holders have gone so far as to copyright the specific pigment of green used in the film, which is why when you sometimes do see her green, it’s slightly off. We thinks it’s a mistake in the costuming department, when in fact it’s a legal necessity.

But let’s translate that back to Superman: in the original comics, he could only leap tall buildings in a single bound: NOT fly. He could jump far, closer to the Hulk from Marvel. So if you accidentally portray Superman flying without knowing that, are you guilty of copyright infringement? Maybe! Another example: Kryptonite wasn’t introduced in the comics, but later in the Superman Radio Show. It’s PD has a different expiry date. So if you use kryptonite, that’s infringement… but, what about if you show Superman as weak to anything? Like, technically that radio play wasn’t just the first appearance of Superman, it was the first instance of Superman having a weakness. So does that mean you can’t show your Superman as being weak, in any way?

This might sound silly, but Superman’s copyright has always been a hotly debated subject. In the 40s, the creators of Superman pitched a sequel series called Superboy, showing the adventures of the character as a young man. DC passed on the idea, but later after the creators were drafted into war, used it without their permission or pay. As a result, a judge “split the baby in half” and ruled that “Superman” was owned by DC comics, while “SuperBOY” was owned by his original creators. And that’s why the show Smallville is called Smallville, not “Superboy,” and why he can never put on the suit as a young man in that show: even though DC had a deal with the creators at the time, they might not have always, and they couldn’t risk losing the rights to re-air episodes.

So… if in the year 2034 you write a Superman story and you show him in the costume as a young man, are you violating copyright? Maybe.

While we’re on the subject of weird Superman facts: before 1984’s Man of Steel miniseries by John Byrne, it was generally accepted that Superman was the character’s “real identity.” That is to say: his parents named him “Superman.” When he was a baby on Kent farm, they did not call him “Clark,” they called him “Superbaby.” When he got older, they called him “Superboy.” When he got older still, they called him “Superman.” Yes, I know that’s dumb as fuck, but Pre-Crisis DC Comics were wild and dumb sometimes, roll with it. That means that before 1984, “Clark Kent” was a made up identity, a fake name Superman used to pass alongside normies once he moved to the city. It’s been a hotly debated subject among Superman fans ever since: which is the ‘fake’ identity, Superman, or Clark? In which persona does he act “authentic” and in which is he “putting on a bit”?

And, just like with Sherlock, if in your 2034 story you show Clark being the main character… are you violating copyright because that interpretation of the character didn’t appear until 1984? Maybe!

2. Who bites the bullet first? This year, James Gunn and DC Studios are starting a new DC superhero film canon with 2025’s “Superman.” Currently, the Marvel Cinematic Universe is over 15 years old. The new DC Film Universe will not yet be that old when technically, technically, Marvel could make their own competing Superman film. The tenth phase of the MCU could involve bringing in Superman, technically. And a few years later, Batman. A year after that, Robin, and two years after that, Wonder Woman.

We all kind of accept that we live in a world where in 2034 small scale productions of Superman will exist. Like, I personally have had a Superman story pitch I have wanted to give to DC for years, but… maybe now I don’t. Maybe I write it when I feel like it and I just wait ten years and publish it under Engen Books in 2034. After all: why not? And there will be other small studios making their own versions, like the Winnie the Pooh horror movies that have popped up since that went PD. We all accept that.

But Superman has analogs in almost every other comic-book franchise. There are several “inspired by Superman” figures in Marvel Comics: Sentry, Hyperion, Wild Blue Yonder, Angel. In 2034, these characters won’t need to be “loosely inspired copyright allowed versions” of Superman: they can just be Superman. There are Superman analogs in Image Comics too, in almost every big comic publisher.

So my question is: who bites that bullet first? Will Marvel publish Superman comics set in the Marvel Universe… or will they show restraint, knowing that it’ll only be a few years before some of their characters are also in the Public Domain? Will this be a game of mutually-assured-destruction chicken where both publishers wait to see who blinks first? If Marvel uses Superman, sure it’ll be 20 years before Spider-Man and the X-Men are up for grabs, but Captain America is up soon. And the Human Torch.

Marvel is in the distinct advantage that their big-names don’t go PD until 20+ years after DC’s do. Do they publish Superman, Batman, and Wonder Woman comics hoping they can eat enough market share to destroy DC before twenty years pass and DC can do the same to them? Again: maybe. That’s a real possibility.

3. DC PRIDE, Elseworlds, Fan-Fiction, and Tin-Foil Hats. Things get a bit tinfoil-hatty in this section. DC has been lauded in recent years for its DC PRIDE line: as well it should. It was the first major publisher to really show its progressive chops loud and proud. Specifically, having a gay Superman. Yes, fine, it was Superman’s son that was gay, not Clark Kent, but he still carried the name Superman and he’s still around and he’s still accepted. Comic readers know it was Clark’s son that was gay, but the media went with the headline “Superman is Gay Now” and the public widely accepted it. Yay. Good.

And I want to be clear as I put on my tinfoil hat: that was and is a good thing. That’s a positive stance for them to have taken, along with Tim Drake Robin coming out as bisexual recently, DC has been making the stance that not only will they have 2SLGBTQIA+ characters, but they will be legacy characters that we have built our brand on, and that these will be characters that matter and that cannot be simply swept under the rug at the first sign of trouble.

But now my tin-foil hat is on. Hear me out.

What’s one of the most popular forms of fan-fiction category? It’s versions of the characters in different romantic pairings, specifically Slash fiction. “Superman is Gay” was already a very popular subject in the fan-fiction community. Hell, I mentioned different publishers’ legally-distinct analogs of DC characters earlier: Midnighter and Apollo from The Authority started under a different publisher, Wildstorm, and were legally-distinct versions of Superman and Batman who were in a same-sex relationship. The market for “fiction where Superman is homosexual” has existed in different versions and fan versions of the character for some time.

… so by openly publishing the stories of Jon Kent, son of Clark, as an openly gay Superman… has DC poisoned the well against anyone doing that once he goes public domain?

Think about it. You can’t use kryptonite, because that went public domain at a different year. You can’t have him fly, that happened a different year… is it possible now that you also won’t be able to show Superman being homosexual because Jon Kent first appeared in 2015 and won’t go public domain until… (checks math)… 2115 at the earliest?!?

And here’s a follow-up thought: was this deliberate? Did DC purposely narrow the field of things “about Superman” that would fall into Public Domain? Like, was there a board meeting where they asked themselves: “hey, Superman will soon be public domain and someone out there will probably make a version of him that’s gay. How much market share will we lose making fragile men mad by making him gay vs. how much will we lose by allowing that to be an option to writers once he hits Public Domain?”

You see what I’m asking? Was this altruistic on the path of the publishers, or was it calculated: “we will make a gay Superman, so now you can’t”? Or was it both? Or neither! I’m genuinely wondering.

Expanding out further, what about all the other possibilities for the character DC has explored over the years? They too, are copyrighted until those stories fall out of it, in theory. Superman as a vampire? Sorry, that was done in 1978, won’t be PD for a good long while. Superman as a Russian Asset? Done in 2024. Superman as a government experiment? 2011. In a very real way, the Elseworlds line of comics (that explore out-of-continuity stories of characters, like What If over at Marvel), is a platform for “calling dibs” on different versions of the character that writers then can’t do on their own once the character goes public domain.

And if you think that’s crazy, and that the sexuality of a character can’t be a part of their Public Domain status, I will remind you: Sherlock could not be nice until recently.