A hot trend in copyright law in the past few years has been attempts to get judicial declarations that popular works are in the public domain. Such efforts succeeded for Sherlock Holmes, could be headed that way for “Happy Birthday,” while Zorro is still being litigated. The latest public domain challenge involves the fictional space explorer Buck Rogers.
Team Angry Filmworks, run by Don Murphy (Natural Born Killers, League of Extraordinary Gentlemen, From Hell), filed papers on Tuesday in California federal court to get a declaration that Buck Rogers is in the public domain so as not to worry about threats from the person currently managing the trust of John F. Dille, who published the works of Philip Francis Nowlan.
Buck Rogers originally appeared in Nowlan’s 1928 novella Armageddon 2419 A.D., which Angry Filmworks announced at July’s Comic-Con would be turned into a film.
According to the complaint (read here), shortly after the announcement, a letter was sent asserting that “the Dille Family Trust has not given permission or license for the use of ‘Buck Rogers’ or any of the elements of the ‘Buck Rogers’ Universe.”
But Angry Filmworks asserts that the character entered the public domain in the United States in or about 1956 and worldwide in 2010. Though it’s not spelled out, that’s presumably because copyright registration wasn’t renewed after the first term. Also, Nowlan died in 1940, so if international treaties apply, it would be 70 years after the death of the author. (Interesting to note that the character of Buck Rogers appeared the same year as copyright term icon Mickey Mouse did.)
The lawsuit also asserts that the Lanham Act (trademarks) doesn’t apply thanks to Dastar, a Supreme Court decision described in more depth here.
One peculiar aspect of this lawsuit: The pending Armageddon 2419 A.D film is co-written by Flint Dille, the grandson of John and a beneficiary of the trust.
But whatever family drama is happening, the copyright issue at the moment is front and center.
The filing comes the same week that the filmmaker wishing to free the “Happy Birthday” song filed new court papers over the “smoking gun” evidence of lyrics appearing without a copyright notice in a 1922 children’s song book. In that case, Warner/Chappell is defending the proposition that the world’s most popular song is still under copyright and is now arguing there’s factual issues over whether that 1922 publishing was authorized. In a reply brief filed on Wednesday, plaintiffs pointed to more evidence the lyrics were published with permission and emphasize the concessions made by the other side. See here for those arguments.