Business Post: Copyright and Fables (Patreon)

Alright, let's talk about the recent news from Bill Williamson, copyright and how it all plays into this.

Let's be clear, not a lawyer, all this is just me puling information from things I've read and what I know. I might be wrong in my analysis and frankly, some of these questions are things that are going to get settled in court anyway.

I'll give the quick background that I understand it, what it means and then how it plays out / what it means for us as indie writers (or what it could mean).

Bill Williamson and Fables

So, as many of you might have heard, Bill Williamson has declared that Fables, his popular comic series, is now in the public domain. So, he's basically said (in his view) that it is open season on his copyright.

For those of you who don't know, Fables is a comic series that was created based off 'fables', myths and legends of basically open copyright characters. Things like Red Riding Hood, Snow White, Cinderella, the Big Bad Wolf and Pinnochio. Basically, stories, myths and other things that are now in the public domain; just adjusted and woven into a world that he created with alterations on their stories. He takes them all into the 'modern' world where they've escaped and well, shenanigans occur.

He created the world, owns the copyright (it's marked so in the copyright office) and licensed the rights to DC Comics to distribute.. 

I won't get into the specific complaints or why, you can read about it up there. And in DC Comics own quick statement disputing the comic issues.

Some Considerations

Now, this public dedication is weird. From what I understand, in itself it does allow people to make use of his world. However, there's not a lot of case law on this (mind you, talking US) right now and, what there is indicates that these kinds of open dedications might be yanked back. I'm open to getting corrected on this, but a simple public declaration as I understand it isn't actually very robust.

Cory Doctorow broke it down a bit, basically going into detail about problems with creative common's licenses and the need for a 'sample' license; but the problem on top of THAT about the complexity of intelectual property law (which covers a bunch of things including copyright, trademark, patents and more).

Anyway, broken down really roughly:

- he likely has the rights to make his comic scripts and his worldbuilding (in terms of what he wrote) licensable

- he does not have the ability to license the rights to the designs or the comics. So you can't reproduce them, can't copy them, or do anything else like that.

Basically, even as Williamson has said - you need to be creating new works from his fiction, not copying what is there.

Now. Further to add on to this, it's worth remembering that Fables is made off public works. The description of Snow White that you know (of her being fair and rosy red apple cheeks, etc.); that's probably in the public domain oo. The one you might see in the comic, the way she's drawn or described - that isn't likely. So, depending on how you create as work; and what you draw upon, you might find that your work is actually protected as a 'normal' change of public domain work.

Anyway. As much as we (or Williamson) might think it might be in public domain, or licensed to be sampled... DC Comics is quite clear they don't agree. 

Which means that the first person to poke their head out far (probably the first dozen or so till they've made the point); are going to get sued to obliviion. And whether or not you can win, they'll drag you through the courts till you run out of money.

Don't forget, there is absolutely no way they are going to allow something like this stand. If they did, it'd be a new quiver in the arsenal. I wouldn't be surprised if Williamson finds himself in court too.

Publishing Considerations

Alright, so how does this play out and why does it matter for publishing? 

Well, you see how the above mentions, everyone is pretty clear that Williamson's declaration does NOT include the Fables comics he created and were published through DC? Well, that's because it was a joint project, where things like Art (i.e. someone elses copyright) was made by someone else, the trademark for DC is showcased, etc.

I'm guessing (don't know the contracts); but it's likely that DC has the rights to the actual art. It's quite common for comic art to be done on a work for hire basis; but I'm not entirely sure here. In either case, he doesn't have the copyright.

So he can't assign it or make any changes unilaterally.

Why's it matter for publishing?

Seperate Copyrights

If you have work that is done by others, for any reason - see audiobooks, translations, a graphic novel adaptation, etc. - you are (often) no longer the sole copyright holder. You CAN have the work (if you're an indie publisher) be done as a work for hire, or have the copyright assigned to you (but not moral rights, which are a different thing entirely that I'm not touching in here) giving you control of that work. But they are seperate copyrights.

Now, as a working example... Say you sign a contract with an audiobook company. You LICENSE the right to produce an audiobook and you get royalties for a fixed term, say 10 years. After the 10 years, the term ends.

You CANNOT take the audiobook recording and just sell it. You could license the use of that copyright recording from the maker. You could buy the copyright and have the copyright assigned to you (and thus use the same recording).

OR, you could re-record the entire book. It's an entirely new copyright then. Do you recall someone else doing this? 

If you said Taylor Swift, you got it right! She did the same thing to her old recording company, basically re-recording the masters of her old songs.

Copyright Licenses, Sampling and Fan Fiction

Now, see Cory Doctorow's discussion about needing a sampling copyright license; which would clarify what is / isn't released, what people could do and what people would be covered by. If you wanted to release your own works, you'd probably want something like that.

If you wanted to, for example, make your work legally viable for Fan Fiction; you'd probably want to have a sampling copyright license too. Because right now, technically, fan fiction is illegal.

Yeah, it's kind of dumb. Thankfully, you (as the copyright holder) do NOT need to chase down every fan fiction user and take their work off the internet to keep your copyright (unlike, say, trademark).

Contracts & Licensing and Reversion Rights

On another note, something else to consider is if you're working with other parties; whether it's publishers, audiobook narrators or even co-authors, it's ALWAYS necessary to have a document in place detailing copyright, rights and the like.

You want to cover your bases and make sure everyone is very clear of what rights everyone else has. What they can or cannot do and the like.

You also, probably, want to NOT be in a position where you have to fight a super large company in the courts because doing so will cause you to lose significant dollars.

This is where a good series of reversion right clauses can save your bacon (Mind you, there's nothing stopping them from suing you and forcing you into court, but depending on your size, it might not happen. Williamson's probably large enough that even if had reversion clauses, they might not want to let him go that easily).  

The point though, is if they aren't paying you properly, it can often be easier to just that the 'loss' of a quarter or two of royalties, take your IP back and get a letter reverting it all. Rather than fight them because you would be stuck in court hell.

Also, it's worth noting that these reversion rights might include getting it for future works (i.e. being allowed to write book 3 of a series that your publisher has chosen not to support after book 2). 

Thoughts? Comments? Corrections? Always willing to listen.

Oh, and PS: Williamson himself is not a nice person at all (to put it diplomatically). While I enjoy the story, I would not personally hailing the man as any kind of hero. Nor do I support his or Doctorow's positions on a variety of things like length of copyright terms, etc.