But there’s another side to the Superman story, which reveals another equally destructive aspect of copyright. Superman’s popularity led to a boom in ‘superhero’ comics, with dozens of new characters introduced by every publisher in the business. One in particular, the red-costumed Captain Marvel (created by C C Beck and Bill Parker for Fawcett Comics), became so popular it eventually overtook even Superman in sales. Captain Marvel was witty and clever, with distinctive and playful art, and helped push the young American comics industry to new heights of quality and sophistication. But National, searching for a way to crush its biggest competitor, sued Fawcett for copyright infringement.HT: Techdirt
The case dragged on for years before Fawcett finally gave up, settling out of court and promising to shut down the Captain Marvel line. Many comics fans remember the end of Captain Marvel as the day their favourite hero was finally slain – not by alien invaders or supernatural powers – but by copyright lawyers. Looking back today, National’s lawsuit looks weak indeed. But in the battle between Superman and Captain Marvel, the better comic lost.
Dylan Horrocks notes another nasty example:
In 2004 Nigel Cox’s highly acclaimed novel Tarzan Presley looked set to make a big splash – not only here in New Zealand, but around the world. It was nominated for awards, had rave reviews and was selling like crazy. But then Cox’s publisher, Victoria University Press (VUP), received a threatening letter from none other than Edgar Rice Burroughs (ERB Inc.), the private company that oversees Edgar Rice Burroughs’ literary estate, including Tarzan. Of course, by the time Cox’s novel was published, Burroughs had been dead for more than 50 years (the first Tarzan story came out in 1912), which in most of the world puts his work in the public domain. But not in America, where corporations like Disney have repeatedly – and successfully – lobbied congress to extend copyright terms.I don't agree with Horrocks' generalized anti-corporate stance, but I think he's right on copyright and the commons. As I wrote in April:
So even though Tarzan has been a part of our shared mythologies, daydreams and fantasies for nearly 100 years, shaping stories and art around the world, he’s still – as far as ERB Inc. is concerned – the company’s exclusive private property. And Nigel Cox was trespassing. VUP’s lawyers advised that ERB Inc.’s case was weak (at least in New Zealand), but fighting it in court would cost a fortune. There was nothing VUP could do. ERB Inc. insisted that Tarzan Presley never be reprinted or sold overseas. Cox’s masterpiece slipped out of sight, becoming a great lost treasure of New Zealand literature, buried in the depths of the copyright jungle.
Peter sensibly argues that the creative innovator deserves to enjoy the fruits of his creation - and I'd agree - but some portion of those returns come from the artist having free access to the existing body of common culture. Again, on moral grounds rather than economic, how can it be right that Walt Disney Productions and Tim Burton get to take the Alice story from what's now the commons and enjoy greater protection applied to their movie than Charles Dodgson ever enjoyed from his original book? I rather liked Tim Burton's remixing of the Alice story into something wonderful and new, and that remix wouldn't exist if Burton and Disney couldn't earn a return from it. But Walt Disney will lobby for the rest of its corporate life for the extension of the term and scope of copyright such that some other re-mix artist a hundred years from now won't be able to mash up scenes from this version of Alice with something currently unimaginable to make a new work every bit as creative as what Tim Burton achieved. That future work will fail to be created, and unnecessarily so.