Judge Rejects Film Producer's Bid to Have Buck Rogers Character Declared in Public Domain

Don Murphy can only clear rights if he potentially violates them first.
Courtesy of Didactic Press

How's this for a Catch-22?

Don Murphy (TransformersNatural Born Killers, League of Extraordinary Gentlemen) wants to make a film about the fictional space explorer Buck Rogers. He believes that the character entered the public domain in the United States in 1956. He has gotten preliminary interest from Warner Bros. and Sony on financing a big-budget motion picture, but neither studio wants to take a chance if rights are in question. And he might not be able to clear up the rights unless the Buck Rogers film gets studio support and goes into production.

That's the conundrum facing Murphy and Team Angry Filmworks thanks to a ruling (see here) on Monday from U.S. District Judge Joy Conti in Pennsylvania.

Over the past few years, in part due to the length of the statutory copyright term, there's been a rash of cases attempting to have works declared in the public domain including Sherlock Holmes, Zorro and "Happy Birthday."

Last August, Murphy made his own move in court after announcing at Comic-Con that Philip Francis Nowlan's 1928 novella Armageddon 2419 A.D., featuring Buck Rogers, would become a film. After the announcement, Murphy received an objection from the licensing representative of the Dille Family Trust, which owns the assets of John F. Dille, who published Nowlan's works.

The Trust was claiming that Murphy needed a license despite the contention that copyright expired and despite the fact that one of the two beneficiaries of the Trust — Robert Dille — was a co-screenwriter on Murphy's adaptation.

Team Angry Filmworks wanted to have a judge look at the facts and determine whether Armageddon was or wasn't in the public domain, but the judge has decided to dismiss the case because there's no "actual controversy."

Courts can only entertain cases of a justiciable controversy, and after a 2007 Supreme Court decision (MedImmune), it no longer became enough for plaintiffs to bring legal actions based upon a "reasonable apprehension" of being sued for infringing activity. Instead, the test became a totality-of-the-circumstances. 

Looking at the Buck Rogers case, Conti applies the Supreme Court's holding by questioning whether the dispute rises to an actual controversy from "immediacy" and "reality."

Regarding immediacy, Conti writes:

"In this case, the amended complaint does not contain specific, or even approximate, allegations about when plaintiff could begin film production, let alone release the allegedly infringing film, assuming a declaratory judgment is entered in plaintiff’s favor. A dispute 'lacks immediacy' where there are no allegations about 'when, if ever,' the product will be 'used in a manner that could potentially infringe' the intellectual property rights of another. Plaintiff’s nebulous allegations that 'development of the [film] is well underway' and that 'further production efforts could be undertaken in short order' are conclusory and insufficient to show the immediacy required by Article III."

Examining reality, Conti continues:

"At this early stage, the production and release of plaintiff’s film are 'contingent future event[s]' that may not occur 'as anticipated' or 'indeed may not occur at all.' As pleaded by plaintiff, the film project is still in an inchoate stage. Plaintiff does not allege it hired or entered into preliminary agreements with the parties 'integral to the commencement of production' — let alone the release — of a 'major motion picture.'... Plaintiff received 'preliminar[y,] ... firm interest' in the project from Warner Bros. and Sony. Without allegations of actual commitment or intent to commit — through, for example, letters of intent — plaintiff’s vague, equivocal assertions fail to demonstrate the reality of this dispute. Plaintiff does not allege it entered into finalized, or even preliminary, financing, acquisition, licensing, or distribution agreements with these companies in connection with its potential film."

The judge dismisses the complaint without prejudice and is allowing an amended version, but the insane result is that in order to find out whether Buck Rogers is in the public domain, a potentially copyright infringing work has to be made. Who wants to take that $100 million chance?

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