6:30am PT by Eriq Gardner
The Legal Battle to Bring Buck Rogers to the Big Screen
Don Murphy has been dreaming about making a Buck Rogers movie for quite a while. The producer behind such films as Natural Born Killers and Transformers grew up in Hicksville on New York's Long Island, reading the space adventures of Buck Rogers in comics and later watching the 1970s NBC series. Once Murphy made a name for himself in entertainment, he saw other producers including Jerry Bruckheimer and Avi Lerner claim adaptation rights even though the copyright on Armageddon 2419 A.D., the 1929 novella by Philip Francis Nowlan that introduced the Buck Rogers character, wasn't renewed in the 1950s. Timed to Comic-Con in San Diego in 2015, Murphy proclaimed he was making a film based on that early Buck Rogers story, presuming it had entered the public domain.
Three years later, Murphy is still fighting to realize his dream. In the time since he declared he would adapt the story of a coal mine inspector who awakens from suspended animation after 500 years to find himself in the middle of a planetary war, the behind-the-scenes battle has become comical itself, with legal actions in federal courts in Pennsylvania and California, the U.S. Patent and Trademark Office and, most recently, a Pennsylvania bankruptcy court. Next month, a hearing is scheduled that may determine whether the Buck Rogers rights — whatever those might be — can be put up for auction by heirs of John Dille, who published Nowlan's work in magazines some eight or nine decades ago.
To Murphy, the proposed auction is a farce, and in the past six months he's brought one motion after another aimed at stopping it. The 52-year-old producer is notorious in the industry for his volcanic personality, a reputation he leans into with a company called Angry Filmworks. "It's always bad to piss me off," he says. But Murphy's legal war has implications far beyond his own interests or even the Buck Rogers property itself.
The Copyright Act limits protection of creative works to 95 years from first publication (although the term varies depending on the nature of authorship and whether publication came before or after 1978). That's a lengthy term that was famously extended in the mid-1990s after a lobbying push from Disney (critics dubbed it the Mickey Mouse Protection Act). The U.S. Supreme Court upheld the extension, but there appears to be no concerted effort to further lengthen the copyright term. As a result, beginning in 2019, works will begin pouring into the public domain for the first time in decades, including some iconic characters at least ostensibly freed from copyright grips: Mickey Mouse (the Steamboat Willie version) in 2024, Snow White and the Seven Dwarfs in 2027, Pinocchio in 2030 and Superman and Batman in 2033.
But as demonstrated by the Buck Rogers dispute, what's in and out of copyright isn't purely about the calendar. And studios and author estates won't just stand by and let their most valuable intellectual property be exploited by others, no matter how much time has passed since original authorship. So the fight over Buck Rogers may foreshadow what to expect for decades.
Take another iconic character: Superman. Asked to acknowledge that the Man of Steel, who first appeared in Action Comics #1 in 1938, will indeed be free in 15 years, a Warner Bros. lawyer counters by citing trademarks — a separate form of intellectual property and a reference that raises the prospect that the 2003 Supreme Court decision in Dastar v. Twentieth Century Fox Film may not be the final word on whether ownership of source-signifying words and phrases can counter copyrighted work falling into the public domain. The Warner Bros. attorney also notes that not everything is black and white when dealing with serialized works like comic books. For instance, says the studio lawyer, "Superman's power of flight was not introduced until some years after the character first appeared."
So anyone wanting to co-opt Superman would have to ignore his key superpower. That may be true, but that doesn't mean Warners can stop, say, a leaping version. As influential Judge Richard Posner put it in a similar 2014 dispute over the public domain character of Sherlock Holmes, "the ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected."
Of course, the pictorial difference between a superhero flying and one leaping isn't exactly clear. One can easily imagine Warner Bros. or its DC Comics division making such a point in a threatening lawyer letter. "There will be a cloud over rights, and nobody is going to do Superman for fear of being sued," says Randall Newman, an attorney who worked to convince a judge to rule in 2016 that the song "Happy Birthday to You" is in the public domain. "It might require a court declaration."
A declaration that Armageddon 2419 is in the public domain was exactly what Murphy sought after receiving threats from Louise Geer, who administers the Dille estate. Not even tapping John Dille's grandson to co-write the Buck Rogers screenplay was enough for Murphy to avoid a fight to get his dream project realized. So Murphy sued in 2015.
The legal dispute has been adventuresome, to say the least.
A judge initially refused to hear Murphy's case because there was no actual movie produced to determine whether it amounted to a copyright violation. Never mind that no studio would greenlight the project without a judge signing off. A catch-22. An amended complaint brought word that Legendary Pictures was prepared to take on Buck Rogers once the legal situation cleared up. That helped convince the judge in March 2017 to allow the case. But later that year, the Dille Family Trust filed for Chapter 11 bankruptcy. The move not only put a halt to Murphy's quest for a declaration that Nolan's novella was in the public domain, but it also stalled a more than decade-long trademark fight between the Dille trust and the Nowlan Family Trust that was set to go to trial.
A lawyer for the Dille estate explained that Lorraine Dille Williams, a grandchild of the publisher, had advanced $250,000 to fund the trademark litigation but had cut off funding with the prospect that the case would ultimately cost three times that amount. The Nowlans and Murphy framed this all as a ploy to avoid the trial and obtain a back door to selling the Buck Rogers rights through an auction overseen by the bankruptcy court. They have been urging the bankruptcy judge to focus on the fact that the Dille trust isn't really eligible for bankruptcy protection and can't sell anything it doesn't own. They are demanding that the entire case be dismissed, or at least that the bankruptcy stay be lifted so that the other cases may proceed.
The Dilles, in turn, have been seeking to empower Heritage Auctions to liquidate their interest in Buck Rogers on an "as-is/where-is" basis, which essentially makes clear this is a distressed asset and a buyer will assume any risks. Indeed, Heritage already has a preview of what's for sale, including Buck Rogers copyrights, on its website. And after Murphy emailed Heritage to warn them that the Buck Rogers character was in the public domain, the Dilles brought a motion for sanctions alleging it was violation of the rule that pauses all pending litigation after bankruptcy. Never mind free speech. The Pennsylvania judge hearing the case seemingly is confused by the entire situation. At a hearing in May, when the issue of promoting this auction for potential buyers came up, the judge asked, "Is Variety magazine still published?" (It is.)
The next big hearing is scheduled for August 21. Murphy hopes it will ultimately result in a determination that Armageddon 2419 is in the public domain — he also has eyes on more copyrighted works soon becoming available. For example, he's enticed by the prospect of Edgar Rice Burroughs' John Carter of Mars entering the public domain in 2021. Sure, the 2012 John Carter film from Disney was a commercial disappointment. But Murphy raises the prospect of Buck Rogers, John Carter and other early 20th century science fiction heroes teaming up as Avengers-type heroes, a legal supersquad that would feature several public-domain characters together all at once.
Then again, Murphy muses that it might be wise to strike a settlement with the Dille trust — a wink-wink arrangement where everyone can present these rights as protectable. In recent years, he's had Buck Rogers film discussions with Sony, DreamWorks and Disney, according to court papers. Why settle now? Murphy notes with conscious irony, "Studios prefer to own something."
5 ICONIC PROPERTIES ABOUT TO GO PUBLIC
From Mickey Mouse to King Kong, some long-untouchable characters soon will begin slipping from copyright grasps.
The works of 19th century English author Mary Shelley have been in the public domain for quite a while, but in 2027, anyone who wishes to make a new Frankenstein movie at least won't have to worry about infringing on Universal's 1931 horror classic. That's important because Shelley's book left what the monster looked like to reader's imagination. The film studio offered that detail in its movie.
The Great Gatsby
The closest thing to the "Great American Novel," the 1925 book by F. Scott Fitzgerald has been adapted for the screen several times, most recently in 2013 with Leonardo DiCaprio in the lead. The copyright on Fitzgerald's book lasts 95 years and not a second more. Thus, everyone will be free to make their own version beginning in 2021.
Harold Lloyd's Safety Last!
Had the 1923 film been released a year earlier, it would have been in the public domain a long time ago. But thanks to the Copyright Term Extension Act, the comedy enjoyed another few decades of copyright protection. That's been important for Harry Lloyd Entertainment, which has filed several lawsuits in recent years against those using the famous image of the silent movie star dangling perilously from the hands of a gigantic clock. Safety Last! becomes public domain in 2019.
When Universal made a remake of the 1933 original in 1976, it went to court against RKO and argued that the original had already gone into the public domain. A judge agreed, but in the midst of an appeal, the parties settled, leaving perhaps a tinge of uncertainty. A few years later, Universal sued Nintendo with the contention that Donkey Kong was an infringement. The case failed, but come 2029, there will be absolutely no doubt that the giant ape is in the public domain.
Disney's fierce protection of Mickey is widely credited with causing the extension of the copyright term. Barring any new extension, his first appearance in the 1928 animated short, Steamboat Willie, becomes public domain in 2024. But watch out, as Disney has dozens of trademark applications and will surely point to how Mickey has "evolved" over the years. For example, Steamboat Willie was a black-and-white film.
This story first appeared in the July 18 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.