I was looking for other comic book information and stumbled on an extended article on Comic Book Resources having to do with "myth-busting" comic book questions of all types. One concerned the Quality Comics characters, of which the Freedom Fighters, Plastic Man, and the Blackhawks were once part.

COMIC URBAN LEGEND: The recently killed off Phantom Lady, Human Bomb and Black Condor are in the public domain and are not actually owned by DC, therefore with their deaths, anyone can now come along and publish stories about them.

STATUS: False

The key to this question (which was posed to me by Kelvin Green) is the “with their deaths” aspect of the question. The fact that the characters have been killed off is irrelevant. All you need to be able to write a public domain character is for that character to be IN the public domain, which is the case for all of the Freedom Fighters. The Freedom Fighters were all published by Quality Comics until it went out of business in the 1950s, and eventually sold all its rights to DC Comics. The thing is, during this period in time, Quality allowed the copyright to lapse on their characters. This was not a strange occurance at the time, as very few companies actually bothered to renew their copyrights, as Quality quite reasonably did not feel as though there was anything to be gained by sustaining the copyright on the characters. Comics were a month by month enterprise. In addition, even had they WANTED to renew the copyrights, as the terms expired while the company was out of business, they couldn’t ANYways.

So there you have it - you CAN write a comic book featuring the Ray, Phantom Lady, Human Bomb, etc.

The next question is, though, can you title the comic Phantom Lady, Human Bomb, The Ray, etc.? That is an issue for trademark to address. Copyright just dictates whether you can use the characters and/or reprint their stories. Trademark protects consumers by assuring that if they see, say, a comic with Batman on the cover, that the comic book WILL be by DC Comics. This is designed to protect consumers from bootleg (i.e. inferior) material.

The strongest protection regarding trademarks comes when someone registers a trademark with the federal government. However, this is NOT the only way to protect a trademark, it is just the easiest (for if it is registered, the presumption cuts directly to the person/group who registered the trademark). A great deal of comic book characters have NOT been registered as trademarks. Of the Quality Comics characters, DC has only registered Plastic Man and the Blackhawks for trademark protection. For the others, you would have a SHOT, but even though DC did not REGISTER the names as trademarks, the fact that they published a comic book titled The Ray and Black Condor would be a strong argument in DC’s favor that they have a trademark on those characters.

So, while you can certainly write a comic featuring the Human Bomb, Phantom Lady, etc., you would probably not be able to advertise it as such.

Their deaths, though, mean basically nothing (except there is less chance for a comic featuring them to be placed into the stream of commerce, which, after awhile, would bolster an outsider’s attempts at claiming DC was not protecting their trademark. In addition, if they are dead, perhaps DC would not even TRY to defend their trademark on the characters).

Does anyone know the accuracy of these statements above? Finding out the Human Bomb or Phantom Lady are in the Public Domain is mind-boggling in a sense.

But is it creative thievery to even attempt to take the Human Bomb and produce a comic about him? That's one issue in itself.

However, Roy Lincoln died in INFINITE CRISHIT, and the Freedom Fighters do currently have a comic. Now I'm wondering what the deal is with the Quality characters. Recently, one site indicated that DC DID have the rights but had never done anything with the characters.

So what is the truth?

I'm not up on all the legalities, but here are a few points to consider.

The reason the Fawcett/DC Captain Marvel can't use the Marvel name as the title of his comics is that Fawcett allowed the trademark to lapse and Marvel called dibs on it before DC started doing their new Captain Marvel comic. Even if a copyright has lapsed, the Trademark or the declared intent to use a title as a trademark can be reasserted in a way that a lapsed copyright cannot.

A decade or so ago, some independent publisher realized that the earliest Mickey Mouse strips were in the public domain, so they decided to reprint them. Mainly because many of these strips portrayed Mickey in a manner inconsistent with his later family friendly image, which means Disney had banned all it's licensees from running them. The Problem they ran into was that hey could not, neither in advertising or on the cover use the name, the silhouette or the likeness of MIckey Mouse as they were all covered under trademark. This could theoretically affect all superheroes.

Even if DC does not have proper copyrights on these characters, it will cost you tens of thousands , maybe hundreds in legal fees to establish it. They will not open the floodgates without a fight.

If you just create an 'Homage' -- the practice of copying other people's characters is so widespread even the big two have done it for years - you can avoid these problems entirely.

Or. You could ask DC to license the characters for a limited time or limited number of projects.

You are also free to create derivitive works based on the characters, so
new stories and artwork starring the originals or legacies, you're free and
clear. Trademarks protect conducting trade, so where you run into issues
is in the titling of your book as well as artwork on the covers and in any
advertising that contains new material. And DC of course owns the actual
"Freedom Fighters" as a superhero group name as well as that was their
invention. The way around it is an anthology book that features either
public domain cover artwork OR one particular character you do own, and
then all new stories of the Quality characters inside.

It looks like was done by having a "legacy" successor to Midnight appearing in MS. TREE QUARTERLY in the 1990s.

EDIT: of course I say that before realizing Ms. Tree's comic is published by DC in this incarnation at least. Does this mean Midnight was trademarked by DC?