Why Fables is NOT Public Domain (Yet)

Last week, Bill Willingham took to his Substack, entitled These Foolish Games, and announced that he was releasing Fables, a comic book series that he created and has worked on for over 20 years, into the public domain.

The primary reason, according to his post, was that his publisher, DC Comics, was not honoring his agreements with them, and he lacked the funds or the time to file a lawsuit against the company. 

The announcement sent shockwaves through the comic book scene. Fables is a long-running and very successful series. The series, which places characters from various fables in a more modern setting, has not only over 150 issues, but was the subject of the popular 2013 video game The Wolf Among Us and the planned sequel, which is slated to come out next year.

According to Willingham’s post, despite the success of Fables, he has grown increasingly frustrated with decisions made by DC and a lack of control that he has over his own characters. While he felt that the property was in “good hands” at the start of the run, he said that, “By virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.”

He goes on to say that: 

“The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.”

However, that statement turned out to be less than accurate. In a press release sent to various news outlets, DC Comics has stated that it “reserves all rights” to the property.

The release notes that “The Fables comic books and graphic novels published by DC, and the storylines, characters, and elements therein, are owned by DC and protected under the copyright laws of the United States and throughout the world… and are not in the public domain.”

It goes on to say that they will “take such action as DC deems necessary” to protect its rights.

So where does this leave Fables? Is the series in the public domain or not? The full answer is complicated. However, the short answer is that, for now, it’s probably wisest to treat it as if it’s not.

The Practical Issue

Disclosure: I am not a lawyer, this is not legal advice.

From a legal standpoint. There’s simply no way to answer this question. We don’t know the details of the agreements that Willingham signed with DC. We don’t know what rights Willingham retained in his work, what rights or licenses he granted DC Comics, and what the terms of those licenses are.

To make matters more complicated, though Willingham is the original creator of Fables, he was not the only person to work on the series. In fact, one of his major complaints about DC’s handling of the property is that DC and third parties, such as Telltale Games, were making changes to the characters he didn’t approve of.

In short, we don’t know the details of the agreement that Willingham is claiming was broken by DC, and we don’t know what elements of the series were developed by Willingham and which were developed by third parties. As such, don’t have nearly enough information to begin to answer the question of whether Fables, or some part of it, is in the public domain or not

But, ultimately, that’s a moot point.

DC Comics has made it clear that they believe they still hold the rights to the series. They’ve also made it clear that they will work to enforce those rights should someone attempt to infringe upon them.

This means that anyone who would like to create a project based upon Fables is on notice that, by doing so, they will have to deal with litigation and other enforcement action from DC. With that in mind, it is almost certainly easier, cheaper and safer to just license the property from them.

This is true even if Willingham is completely right. In fact, we’ve seen this exact problem before.

Happy Birthday to No One

The most famous example of this issue is the song Happy Birthday to You. For much of modern history, the song has been considered protected by copyright.

This is despite the fact the song has its origins go as far back as 1893, and serious questions remained about the renewal and ownership of the version that was still claimed to be protected. Most scholars agreed, even then, that the song was likely in the public domain, but no court hard ruled as such.

Because of this, Warner/Chappell Music made a great deal of money licensing the song, sometimes for as much as $10,000 to license it for a film. According to reports, this netted Warner/Chappell approximately $2 million per year. 

Things began to change in 2013, when filmmaker Jennifer Nelson filed a lawsuit against Warner/Chappell, attempting to prove that the song was in the public domain. 

In December 2015, following a ruling that Warner/Chappell did not own the lyrics to the song, the two sides reached a settlement, where Warner/Chappell agreed to acknowledge that the song is in the public domain.

The truth is that the song was almost certainly in the public domain for many decades before this. However, by having enough legal uncertainty and enough money to threaten users with expensive litigation, the song was effectively licensed for decades by Warner/Chappell, as well as the publishers that came before it.

At most, this is the situation that Fables finds itself in. Even if Willingham is entirely correct, and he owns all of the intellectual property rights and has released them to the public domain, there’s still more than enough uncertainty for DC Comics, Telltale Games and others involved in the series to effectively control it.

However, Fables’ situation is likely far more complicated than Happy Birthday to You’s. It’s a tangled web of multiple creators, complicated corporate contracts, licenses, sublicenses and, apparently, a great deal of disagreement over what those contracts say.

As Willingham pointed out in his original post, any such case would likely take decades, and it was time he said he didn’t have. He’s not the only one.

Bottom Line

If you’re looking to pirate Fables content, create a commercialized fan fiction based on the work or maybe thinking of creating a movie based on the series, it’s probably wise to pump the brakes.

Though I’m not a lawyer and I cannot give out legal advice, the mere fact that DC Comics has said that they still view the work as protected by copyright and that they will protect it as such, should give you pause. That’s not a legal issue, that’s just a matter of practicality.

One of the ironies of this is that Fables is based heavily on public domain characters. In 2003, in an interview with Orca Fresh, Willingham himself said that the sole factors in determining if he used a character was if he wanted to use and “Is the character or story free for use – meaning in the public domain?” 

The original version of the characters in Fables are public domain. There’s not much doubt of that. You, or anyone else, is free to use those ancient characters, you can even place them in original modern settings as that idea cannot be protected. This was why NBC was able to feature many of the same characters in Grimm, a similarly-themed TV series they launched after plans for a Fables-based TV show fell apart. 

In short, much of Fables is based upon is already in the public domain. It was from day one, and it was that way by design. The question now is how much more material that applies to, in particular, the work unique to Fables. 

That is a difficult and thorny question. Unfortunately, even though he clearly was trying to, Willingham’s statement has done more to muddy the waters rather than clear things up. It’s created less certainty, not more.

Unfortunately, the only way to resolve this will likely be through the very thing Willingham was trying to avoid: Litigation.

Whether it’s a fight between him and DC or DC tackling some other alleged infringer, remains to be seen. But if we’re going to get answers, it’s going to be in the courtroom.

Until then, it’s best to treat the property as if it’s still protected. That is, unless you want to be the test case that finds out the answers.