RKMBs Forums .::Robegories::. Comic Books View from the Other Side of the World: Copyright and Superheroes

As most people here know, I've been writing an article with Big Bad Voodoo Lou on legal disputes over superhero concepts.

I have promised to post the article here once it is published. The article however presupposes that the reader has a basic knowledge of intellectual property law.

By way of general discussion (and certainly not as legal advice which any of you should rely upon, given I'm not familiar with US laws) I thought I'd give a crash course in copyright.

Some of you are budding writers and artsist and if you're successful in your field then you'll come to know about this stuff sooner or later anyway.

So, what is copyright? Put most simply (and slightly inaccurately) it means "the right to copy". Yes, its all in the name. This means when you bought Marville #1 by Bill Jemas, you had bought the right to read it, loan it, sell it, frame it and put it up on your wall, use it to clean up after your dog's mess on the lawn, or anything else, except copy it. The sole right to copy the thing resides with Marvel Comics.

There is an English case called Re: Dickens which illustrates this very well. Charles Dickens (who knew a lot aboout copyright) died, leaving an unpublished manuscript in his estate. In his will, Dickens decided to annoy the crap out of his relatives. He bequested all of his immaterial property (including all copyright) to one of his relatives, and all of his material property (furniture, house, manuscript, other thing that can be touched) to another. So one person owned the manuscript, and another person owned the copyright in the manuscript. The unpublished manuscript was worth a fortune, and so the two parties got into a legal fight over it (families can be stupid about such things). The court found that regardless of the fact that one relative owned the physical, in-your-hands manuscript, the other person relative the right to copy it (ie. the right to publish).

So why doesn't Bill Jemas own the right to copy, and not Marvel Comics? He, after all, wrote Marville #1.

The simple answer to that is that he almost certainly assigned all of his rights in Marville #1 to Marvel Comics. That is usually the way things are done in the publishing industry, although we all know about "creator-owned works". This concept simply means that the creator has not assigned over all of his rights to the publisher, and can control it. This is how Jim Lee was able to jump ship from Image to DC. Lee owned the copyright, not Image. Over he went.

The more complicated answer is that even if he had not signed over all of his rights to Marvel Comics, Jemas only owns one aspect of the copyright in the comic. The artist also owns copyright - the copyright in the art, as opposed to the text. With some of the issues of Promethea, where Moore uses photographs of real people, the copyright in the photographs is owned by the photographer. With newspapers, it becomes even more complicated, because you've got separate copyrights in photgraphs, editorial cartoons, the layout of the newspaper... All of the copyright is conceptually stacked over each other like hotcakes. Several different people can own several different types of copyright in a comic, or indeed any type of publication. It all co-exists, quite happily.

Most importantly for people here, how do you infringe someone's copyright? If you come up with a great superhero idea and it looks remarkably like Wolverine, will you get sued? Or what if youo actually use Wolverine in your comic? Is that an infringement? I recall flipping through one issue of the Hulk, years ago, in which Rick Jones was getting married. A character very closely resembling Death of the Endless gave Jones' wife a silver hair brush as a present. How did Marvel get away with that?

Well, the short answer is that they would not have gotten away with it, if they had done soemthing other than show the back of the head of a pale Gothic girl. If Marvel has shown the face of Death of the Endless, in such a way as to be identifiable as her (eg. the make-up and ankh), DC could have happily sued them.

The test is whether an essential element of the material protected by copyright has been taken. All Marvel did was depict an unidentifiable girl who may or may not have been a property owned by DC. Its usually done by a side-by-side comparison, and its all rather subjective.

So, with Liefeld's Fighting American (before he cannily merged Fighting American with Agent: America, which I won't get into here), Liefeld was in big trouble. He has a guy who looked like Cap, wore a similar costume, had a similar sidekick, fought a similar bad guy. There were too many key, essential elements which had been taken. The "flavour" of the character, if you like, was swiped.

Now, some elements of the superhero genre are generic. Capes, masks, flight, undies on the outside, that sort of thing. But if I developed a character who had wings, carried a mace and was the reincarnation of an Egyptian prince, I dare say DC might be quite upset.

If I wrote a story about some guy with a cape, who flies, and has super strength, no one is going to get too bothered by it. If my character is from an alien planet and is powered by sunlight, however, and perhaps has a weakness to radiation from a type of rock, I might be in some trouble.

All of whch begs the question as to how Liefeld and Moore got away with Supreme. Here we have a character who so vastly resembles Superman in a number of key ways that it seems to most people to be clearly an infringement of copyright. And the short answer to that question is, I don't know. I have read commentary which suggests that DC decided not to go after them in court because the elements Moore used for the Supreme character were from the Silver Age Superman, and not currently in use by DC. Perhaps DC has become a little less litigious since the days of hounding Captain Marvel. Who knows. But in my view, it was a clear infringement of copyright in the Superman character concept.

What about fan fic? I know some of you have indulged in this horrific practice before. Its the slimy depths of creative ingenuity, taking a character owned by someone else, without their permission, and writing abut them, in the extremely unlikely hope that an editor of a comic book company will see your stuff and become enamoured of it. I, of course, have done this myself, and believe me it was horrible. The best that can be said for writing fan fiction is that it hones your skills as a writer. But the key question is, will you get sued over it?

As Rob will tell you, DC for its part is only interested in stomping on people who are making a profit from their copyright works. (When I was in Hong Kong, on instructions from DC, I started proceedings against a guy who wanted to register the trade mark "Superman" in Chinese characters, for use on underwear.) If you're not making money from fan fic, then most publishers are unlikley to bother you. This is how Rob gets away with www.batmanandrob.com If Rob was charging you a lot of money to visit his site, then DC would rake him over the coals. George Lucas is famously tolerant of Star Wars fan fic, but sued someone a few years back for making and commercially selling Stormtrooper armour. (There are some legal resaons for not suing someone not making a profit on character concepts, but they differ from country to country so I won't go into that here).

That's it in a nutshell.

If you made it thorugh all of that, congratulations. I must now complete numbing your brain by discussing Sonny Bono, and how copyright can expire.

As well as being a very bad skier and the wife (heh heh) of Cher, Sonny went into politics and became a congressman. I suppose he can be forgiven for entering politics, but not for poinking Cher.

Sonny had friends in the entertainment lobby (primarily Disney). I have this mental image of Michael Eisner (Disney's CEO) and Sonny Bono sharing a cigarette in stained silk sheets in a cheap Hollywood motel, but that's just my sordid imagination at work.

Disney and others lobbied Sony to introduce legislation to Congress which extended the term of copyright from 50 years to 70 years. This is generally known as the Sonny Bono Act.

I had a very intelligent conversation with some peole on the old DCMBs about this, including whomod, IIRC. At that stage I supported the extension, because it meant that comic book publishers including DC would not lose their copyright in old Superman and Batman stories. They have invested a lot of money in promoting their character concepts, and they were shortly going to lose them.

Sonny's extension has allowed DC and Disney to keep control over the Mouse, Bats and Supes for another 20 years.

I have since changed my mind on this issue. It seems to me that Disney and DC knew full well how long copyright would last for, and made a business decision to run that risk.

And as whomod pointed out at that time, the extension means that a cultural commodity - early images of the Mouse, the Bat and Supes - are not in public control, as are the works of Shakespeare and Dickens.

It would be outrageous if someone still controlled Shakespeare. It is similarly outrageous that DC still control the copyright in the first issues of Superman.

So does the fact that I can still get sued for fanficcing the shit out of old supes and bats concepts give me one more reason to hate U2's Bono?

Plus, I thought you were pro-bono?

Dammit, you two, leave U2 out of this!

BTW, Dave, I'd be interested in knowing your thoughts about what Amazon.com has done with hundreds of thousands of books: They've had them scanned and every book converted to text in order to allow text-based searches on their site.

Currently, though, an authors' guild is planning on suing Amazon for breach of copyright, claiming that it's all too easy for someone to read an entire novel online through Amazon's search engine, which brings up several pages of scans at once through a certain use of the search engine. I'll look for some links that describe the situation a bit better, but that's it in a nutshell. What are your thoughts? Is Amazon.com out of line?

THE TIME FOR TALK IS OVER. NOW I MUST READ ALL THE EROTIC NOVELS FROM AMAZON USING THE PROCEDURE YOU JUST SPECIFIED.

They say our love won't pay the rent...Boy Wonder!

Porky? Is that you?

Porky?

I know Adam West had a lovehandle, but that's kind of rude, Dave. Even for you.

Thanks for the copyright info, Dave. One thing I've always wondered is how anal do publishers like DC or Marvel tend to be on names. Obviously, if I named one of my characters any variation of Super- Bat- or Spider- I'd be asking for trouble, but what if I named a character, say, Champion, and then remembered that Marvel had a character by that name?

Are they even allowed to copyright such a common term?

Largely, it depends. Northstar put out a book called Omega in the late eighties and were promptly slapped by a suit from Marvel over the Omega name. (Despite the fact that Marvel had not used "Omega the Unknown" for several years at that point and continues to not use him.) Northstar was legally forced to change the name of the book to Omen. (They even printed the notice from Marvel in the back of the book, a nice little Romita Sr. Spider-man on the bottom of the page.)

"Champion" is probably as good a name as "Samson", "Hercules", or "Thor". I'm more worried about trademarks than copyrights. Though many of the characters roaming in my head are similar to some DC or Marvel characters, it shouldn't be too hard to make them unique. My "Champion" may have super strength, speed, and durability, but his origin and personality are VERY different from Superman's. However, like with superpowers, it seems that all the good names are already taken. Keeping away from the well-known names isn't that hard, but DC & Marvel have created thousands of characters, many of whom are obscure. How many good names are there for sorcerors or super-strong types or speedsters? And how many of those names are already taken? Of course this is academic; the odds of my stuff hitting the "big time" (or even the "small time") are very slim.

Impakta is a tagalog word which means "Female ghoul"

I always thought "amuck" was an incorrect spelling: turns out it is a variation.

Squishing smaller guys' ideas is part of maintaining market share. Even if they don't have a strong case, they can drain the smaller guy's resources.

All of which means its important to do a lot of research before you kick off with a new concept. Why give the competition ammunition?

Actually, there was a character named Amok in the recent low-budget superhero comedy film The Specials, and he was played by Jamie Kennedy. I think he was more of a berserker-type than a speedster.

But Dave, I couldn't have said all of that any better myself. Bravo!

Seriously, I could not have. :)

Sorry about that.

I wonder if anyone was ever sued by Mr. Rogers or Sesame Street.

Childrens Television Workshop Inc. v.
Woolworths (NSW) Ltd (1981) 1 NSWLR 273

I wonder if the cease and desists went out on Big Bird stationery.

The case is quite well known in my circles. The supermarket chain tried to sell Oscar the Grouch, Big Bird and Cookie Monster toys in conjunction with some sort of promotion. This was done without permission of CTW, who successfully sued.

Woolworths must have thought the same thing I did. Those lefty, drug-addled, ex-hippie puppeteers can't possibly have teeth. But what Woolworths didn't realize was that Jim Henson showed up to work every day in a Che T-shirt. Power to the People, Dude!

I found a Judge Dredd case too, yesterday.

"I AM THE LAW!"

My job is fun sometimes.