We left off with Lovecraft, Batman and Branding. As my buddies and I gathered around the Dominion board once again, I told them that I was going to write the previous blog and they said that I needed to tease that out into a second posting dealing with copyright issues around Lovecraft.

Or lack thereof.

Lovecraft saw his works as the tip of a much larger iceberg. He encouraged his friends- what critics have dubbed, The Lovecraft Circle- to partake in world building after his death and the practice continues to this day (Evil Dead, anyone?). Noteworthy contemporaries like August Derleth and Clark Ashton Smith began borrowing from Lovecraft during his lifetime. These authors further bolstered their noteriety, while Lovecraft went largely unknown in his time, despite the fact that many popular pulp fiction anthologies published his works.

But Copyright Law is not about ideas. It’s all about expression. So while Lovecraft may have died in obscurity and relatively… crazy, Derleth & Smith did not violate Lovecraft’s copyright by taking concepts of C’Thullu and reimagining or expanding upon those ideas. Near as I can tell, these authors did not directly copy or produce direct sequels to the writings of Lovecraft, thus no copyright violation. They just riffed off of his ideas.

Rendering the issue even further moot, most of Lovecraft’s works went into the public domain years ago.

But back in the early ‘70s? Not unlike Derleth and Smith, Denny O’Neill did not harm any copyrights in the making of Detective Comics. He tipped his hat to a Lovecraftian concept and recast it as a brand new trope- otherworldly town to creepy insane asylum. But the truth of the matter is that H.P. Lovecraft would have loved that his universe was referenced in Batman. Copyright Law actually recognizes the value in continuity- authors need to reference and build upon each other’s work because it makes for great art!

However, I would argue that based on Lovecraft’s initial intent, as expressed in letters to members of his Circle, Lovecraft provided an implicit license to directly use and derive further works from his copyrights. Beyond this, there has been such a longstanding history of unauthorized/unlicensed derivative works that it would be near impossible to put the genie back in the bottle.

But… how implicit can we allow licenses to be?

Next week: The Hammer Falls.