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2025 Ⓒ Boston Intellectual Property Law Association
Batman v Superman v Copyright v Trademark: The Future of the Public Domain & Source Identification
Batman v Superman v Copyright v Trademark: The Future of the Public Domain & Source Identification
by Luke Colomey, Second Place Winner, BIPLA 2024 Writing Contest
Introduction
The public domain has been the subject of recent headlines as famous characters such as Winnie the Pooh (2022), Mickey Mouse (2024), and Peter Pan (2024) have been made available to the public for their own use. Fans and creators have wasted little time crafting their own stories. “Winnie the Pooh: Blood and Honey,” a horror movie based upon the world of the titular character, was released in January of 2023, grossing $5 million dollars on a $100,000 budget.1 From the same studio, “Peter Pan: Neverland Nightmare” is set to release in October of 2024.2 Similarly, the trailer of a horror movie using Mickey Mouse was released in early 2024 and the famous episode “Steamboat Willie” has been edited to “make it sound as if Mickey is using profanity.”3
Listed among the characters whose copyrights will also lapse in the next 10-15 years are many well-known superheroes that have captured the world’s attention for the past century.4 It is these characters that will be the focus of this article. They include: Superman (2033), Batman (2034), Namor (2034), The Human Torch5 (2034), Captain Marvel6 (2034), The Flash7 (2035), Green Lantern8 (2035), Captain America (2036), Aquaman (2036), and Wonder Woman (2036).9 Quite an array of characters to be sure. A quick observation will show that DC is far more affected by this round of copyright expirations,10 but Marvel will find themselves in a similar situation in the not-so-far future of the late 2050s when characters entering the public domain will include the Fantastic Four, The Hulk, Spider-man, Thor, Iron Man, Dr. Strange, The X-men, and Daredevil.11
The earnings of these characters is an instructive tool to understand how “some properties have values that can’t easily be duplicated.”12 Starting with those that are already publicly available, Winnie the Pooh has netted approximately $48 billion and Mickey Mouse and Friends has made a staggering $52 billion.13 Turning to superheroes, Batman has earned approximately $29 billion and Superman an impressive $7 billion.14 Further, while the other listed superheroes soon to enter the public domain have not approached these numbers (although they have certainly still made money), they all contribute to both DC and Marvel’s immensely successful movies,15 television shows, comic books, and merchandise.16 Although these are rough estimates, it is clear that superheroes have evolved well beyond the “silly pictures” that some in the legal world once thought of them as.17
This article will explore how intellectual property laws will affect these superheroes once they inevitably enter the public domain. Part I will touch upon how copyright law works, whether an extension of the copyright term is possible, and what derivative copyrights mean for public domain properties. Part II will delve into how trademark law functions, how trademark law interacts with the public domain, the current landscape of trademark infringement and dilution claims, and how the “aesthetic functionality” doctrine could be used as a tool to strike a new balance between trademark and copyright.
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