I've been advised that in the US it's not possible to declare something public domain, that the closest thing is CC0 or a similar license.

But surely if he doesn't have the right to give specific licenses to individuals he doesn't have the right to CC0 license it either. Based on what I understand, DC will be able to win this that he can't actually do this.

Some countries like Germany and Japan don't recognize public domain dedication. But afaik the United States does. There is one oddity in the US which is that Section 203 of the Copyright Act grants the author of a work the right to cancel "the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright" up to thirty-five years after the grant or transfer occurred (only applicable to works not created "for hire"). So you could argue under that until 35 years have elapsed the work isn't truly in the public domain because the original author of the work has the statutory right to reclaim its copyright.

That said, could the author here have used Section 203 to revoke DC's license? I see section 203 requires that "Notices of termination may be served no earlier than 25 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 30 years after the execution of the grant or 25 years after publication under the grant (whichever comes first)."

So maybe the author could have waited a few more years and done that?

The other way around. The US has a public domain, and in many other countries CC0 is the best you can do.

Since Wikipedia deals quite often with licensing and public-domain works, there's a reasonably relevant summary at https://en.wikipedia.org/wiki/Wikipedia:Public_domain.

I'm not entirely sure you need to republish a work in order to disclaim copyright on it. The only thing I'm aware of in US law is that you have to make some kind of 'overt act', which just means you have to actually intend to make something public domain. I think posting two Substack posts detailing contractual breaches and bad faith at DC as motivation qualifies.

Germany and Japan don't recognize public domain dedications in the law. However, this isn't a German or Japanese creator we're talking about - Bill Willingham is American. And generally speaking, the Berne Convention is just a promise to treat other countries' copyrights the same as your country would, not an obligation to provide more copyright to foreign works than domestic ones[0]. I doubt Germany is going to ultimately enforce copyright that has already evaporated in America, especially on behalf of DC, a party that doesn't actually own the copyright in question and only has an exclusive license.

What's really going to complicate this is the nature of the agreement between Bill and DC. DC could argue that an exclusive license is equivalent to copyright transfer. Copyright is corporate Calvinball, so we could see American courts trying to roll back the public domain dedication purely for the sake of submission to monied interests. I could see all sorts of stupid arguments being adopted by judges that want to see DC win and artists lose:

- Well actually, he was trying to revert rights from DC by making his work public domain, but he didn't follow the notice period requirements, so the dedication is null and void

- Well actually, the publishing agreement constitutes an effective copyright transfer, so he's just releasing DC of their obligations to him, so DC now owns Fables in perpetuity

- Well actually, Bill Willingham didn't draw the art[1], so you can't put Fables on Project Gutenberg, Standard Ebooks, or Wikimedia Commons, all you can do is have all the male characters in your folklore be one man named 'Jack' and nothing more

As far as I'm aware, "artist burns down the copyright on their work to moot a publishing agreement" is uncharted legal territory. How any of these arguments would fare would depend on the exact text of the DC Comics publishing agreement Bill signed, which isn't public, and Bill probably can't proactively publish it. If he can, he should. Otherwise you'd only learn how much he can actually disclaim iff you get sued by DC and are able to bring the contract into the scope of discovery, which isn't exactly guaranteed.

[0] https://en.wikipedia.org/wiki/Rule_of_the_shorter_term

[1] Copyright is not only viral, but also leprotic: every new instance of creativity accrues a separate copyright on that part of the work that is owned by that creator insamuch as it can be separated from the whole. This is why the GPL needs to have a copyleft clause.

>Otherwise you'd only learn how much he can actually disclaim iff you get sued by DC and are able to bring the contract into the scope of discovery, which isn't exactly guaranteed.

Wouldn't the legal and financial burden be only on him?

He is by all account the copyright holder. He says you can do the f. you want with his work. You haven't signed any contract with DC.

You release some derived work commercially.

DC might sue him for granting rights to a third party that infringe n exclusivity clause.

But you aren't bound by any contract with DC, you aren't infringing anything if the sole copyright holder expressely gave you the permission.

DC's argument would be that the exclusivity clause bars Bill from declaring his work public domain, and thus the dedication is null and void.

The law does distinguish between a license and a public domain dedication. If Bill had instead put Fables under, say, CC-BY, that license absolutely would be invalid - you can't license rights you don't have, and the person with exclusive rights would be able to sue anyone who used the work under CC-BY[0]. But the public domain is not a licensing agreement, it's dissolving the foundation of that license agreement, and there's no precedent for what happens when there's exclusivity clauses in play.

Because there's no clear precedent[1], that means any lawsuit involving these rights would survive a motion to dismiss, meaning that the "fuck around and find out" liability falls on anyone actually trying to use Fables as a public domain work. This is to DC's favor: if they sued Bill directly, Bill would be able to point out the numerous contractual breaches DC executed, which would dissolve their agreement. But if they sue a rando, they might just settle to make the suit go away. Even if the rando was motivated to prove DC wrong, they don't have standing to legislate contractual breaches DC made to third parties, so DC would be able to legally assert rights they might not even have.

[0] While Creative Commons wasn't involved, the situation would otherwise be identical to the Harmony Gold/Mechwarrior lawsuit. BattleTech, a tabletop giant robot miniature game, licensed some mech designs from various Japanese cartoons. Those same cartoons were also licensed by Harmony Gold and Frankensteined together into a single cartoon called Robotech. BattleTech licensed out their miniature game to Activision to make a PC game called Mechwarrior. Harmony Gold sued because mechs from their cartoon were in their PC game, and the ultimate result was that because of the exclusivity clauses in play, BattleTech's license to Activision for those specific mech designs was null and void, so Activision was infringing Harmony Gold's rights.

Yes, this is one of those legendary lawsuits that you hear about from MechWarrior fans in the same way that rhythm game fans will never forget what Konami did to In The Groove.

[1] I fully expect an actual lawyer to reply with clear precedent in DC's favor. The best search engine is to reply with the wrong answer on Hacker News.

>>>> you aren't infringing anything if the sole copyright holder expressely gave you the permission.

It's clear he's transfered some rights to DC via an exclusive license. He may be the sole copyright owner, but he isn't the sole person with an ownership interest in Fables, and it's not clear that a third party with an ownership interest (DC comics) can't sue you.