With the possibility that the Supreme Court will take a look at the copyright issues raised by the estate of legendary comic book artist Jack Kirby, intellectual property issues related to sequential art are receiving more attention than ever. But the medium of comic books has faced a number of copyright and trademark issues since its inception 80 or so years ago. The super hero genre, in particular, has been a thorny landscape for IP, and that is most evident in the saga of one particular hero – or at least a series of heroes with the same name: Captain Marvel.
After Superman burst onto the scene in Action Comics #1 in 1938, publishers began creating their own super-powered adventurers to star in comics. There was Green Lantern and Star Man at National Comics and the Sub-Mariner and Human Torch at Timely Comics, among others. And Fawcett comics had Billy Batson, who would say the word “SHAZAM” and transform into Captain Marvel, selling millions of comics as a result. Captain Marvel became so popular that National Comics, home of Superman, sued Fawcett Publications, claiming that the character infringed on the Superman copyright. The case dragged through court for years, and Fawcett eventually settled, deciding to cease publication of the character and later selling Captain Marvel’s rights to National (then known as DC Comics) outright.
This copyright tussle had international implications as well. During the 1950s, the adventures of Fawcett’s Captain Marvel character were reprinted in Britain. After Fawcett abandoned the character, the flow of material ceased, and British publishers were forced to invent a substitute hero. This character, known as Marvelman, shouted a magic word, had a bunch of sidekicks and was, in just about every possible way, a thinly veiled knockoff of Captain Marvel. The characters’ adventures sold poorly for a few years, but when star comic writer Alan Moore brought the character back in the 80s, people took notice. Among those noticing was Marvel Comics, home to Spider-Man and Captain America, who flexed their IP muscles to convince the publisher to change the comic name to Miracleman. Interestingly enough, Marvel Comics recently purchased the rights to the character.
Captain Marvel – Marvel style
Anyone who is familiar with intellectual property law knows that in certain cases, you have to use it or you’ll lose it. And when Fawcett Comics stopped publishing the adventures of Captain Marvel, the trademark to the name lapsed. By the 1960s, Marvel Comics was a big player in the superhero game, with Spider-Man, Fantastic Four and Avengers selling millions of copies. Marvel, then, decided to capitalize on the lapsed mark and created their own character named Captain Marvel, an alien soldier. In the last 50 years or so, Marvel has used the name for several different characters and, in the process, made a tricky situation for rival DC Comics – they can use their Billy Batson version of Captain Marvel, but can’t call him by that name on comic covers.
The saga of Captain Marvel clearly shows a competitiveness – if not occasional animosity – between comic book publishers. And this rivalry goes right to the core of the genre, to a debate about who should own the copyright to the term “super hero.” The term, of course, has its origins in DC Comics character Superman, first published in 1938. But by the 1960s, Marvel Comics had its own roster of popular super-powered heroes. So, in a Solomon-like ruling, it was decided that the two companies would share ownership of the phrase. And the two publishers have been adamant about protecting that IP, such as when they forced the independent comic “Super Hero Happy Hour” to drop the word super from its title.
Sometimes, heated rivalries can create a bit of paranoia. Comic companies are accustomed to creating franchises of characters (Batman has allies known as Batgirl and Batwoman, for example) to extend a brand. Sometimes, though, characters are created for defensive reasons. During the 1970s, for example, “The Six Million Dollar Man” and “The Incredible Hulk” were popular TV shows. To capitalize on the popularity of “The Six Million Dollar Man,” the show’s creators developed a female version of the same concept, “The Bionic Woman.” Afraid that the folks behind the Hulk TV show would create a female version of the character that they would then own the rights to, Marvel Comics decided to get there first by creating a female version of the Hulk, and Jennifer Walters, cousin to Bruce Banner, debuted as The Savage She-Hulk in 1980.