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How Copyright Killed Superboy and Captain Marvel

Update 28 Acts of Pure Spite Happening Behind the Scenes of Marvel Movies — how copyright law is basically inducing Marvel to kill off X-men and mutants.

Update: Apparently Marvel and DC jointly applied for a trademark to the term “Super Heroes.” (From Wikipedia: “While the word “superhero” itself dates to at least 1917, the term “Super Heroes” is a typography-independent ‘descriptive’ USA trademark which is co-owned by DC Comics and Marvel Comics[2]“)

I’ve noted before how copyright and trademark distort the market and culture (see The Effects of Patent and Copyright on Hollywood Movies; and Leveraging IP). Here are a few interesting–albeit sad–examples of the baleful effect of copyright on the comic book industry.

As background, be aware that the two big comic competitors for decades have been DC and Marvel. DC is the home of Superman, Batman, the Flash, the Green Lantern, and Wonder Woman. Marvel is the source of Spider-Man, the Hulk, Thor, the Fantastic Four, and so on.

The Superman character was created by Jerry Siegel and Joe Shuster in 1932, and sold to Detective Comics, Inc. (later DC Comics) in 1938. Superman debuted in Action Comics that year. A “similar” character, Captain Marvel, sometimes known as “Shazam!”, was originally published by Fawcett Comics, and created in 1939 by artist C. C. Beck and writer Bill Parker. Both are powerful, both have alter egos. But of course there are many differences. In any case, Captain Marvel is now a DC character. Wanna know why? Because, as the Captain Marvel wikipedia page explains:

Fawcett ceased publishing Captain Marvel-related comics in 1953, due in part to a copyright infringement suit from DC Comics alleging that Captain Marvel was an illegal infringement of Superman. In 1972, DC licensed the Marvel Family characters and returned them to publication, acquiring all rights to the characters by 1991. DC has since integrated Captain Marvel and the Marvel Family into their DC Universe….

Got that? DC killed  Fawcett’s “Captain Marvel” character, using copyright law, on the grounds that he was a copy of Superman. Evidently not too much of a copy, as they gobbled the wounded character up and then incorporated him into the DC universe–since he’s a distinct character, you see, and not a mere copy of Superman.

Interestingly, however, DC can no longer use “Captain Marvel” for comics featuring, er, Captain Marvel. This is because Marvel Comics has its own Captain Marvel which it secured trademark rights to during the copyright squabbling between DC and Fawcett over the DC Captain Marvel.

Marvel Comics trademarked their Captain Marvel comic book during the interim between the original Captain Marvel’s Fawcett years and DC years, DC Comics is unable to promote and market their Captain Marvel/Marvel Family properties under that name. Since 1972, DC has instead used the trademark Shazam! as the title of their comic books and thus the name under which they market and promote the character. Consequently, Captain Marvel himself is frequently erroneously referred to as “Shazam”.

Even though the Marvel character is not that popular, lore has it that Marvel publishes some kind of book featuring their Captain Marvel every year or two, just to keep their trademark alive so that DC can’t get it back.

In another copyright-superhero twist, the young or alternate version of Superman, known as Superboy, has also had name problems. The estate of one of Jerry Siegel, the original creators of Superman, sued DC claiming that it owned “the original ‘Superboy’ character” and that it “is an independent creation that used ideas from Jerry Siegel’s original rejected pitch and was created without his consent.” In 2006, a judge ruled “that Jerry Siegel’s heirs had the right to revoke their copyright assignment to Superboy and had successfully reclaimed the trademark to the name as of November 17, 2004.”

“Since the ruling, the name “Superboy” has rarely been used in print to refer to any version of the character,” and the Superboy character (in his current “Superboy-Prime” variation) started being referred to as Superman-Prime.

Ah, freedom of speech, wherefore art thou!


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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.