An author does not forfeit his original copyright to a piece of intellectual property if his work is contracted to another who fails to properly copyright works which incorporate the original property. Fawcett Publications' Captain Marvel comic strips were proven to have plagiarized those of National Comics' Superman character.
The suit resulted in Fawcett Publications shuttering the Fawcett Comics division and cancelling all of its superhero-related publications, including those featuring Captain Marvel and related characters. In the 1970s, National, rebranded as DC Comics, licensed the rights to Captain Marvel and revived the character. DC Comics then purchased the rights completely by 1991.[1]
Captain Marvel was not the first superhero comic book character, or even the first Fawcett superhero character, to be the subject of a copyright infringement lawsuit. In 1939, Detective Comics and its rights-holding sister company Superman, Inc. had filed suit against Fox Feature Syndicate for their Superman-like hero Wonder Man, and filed against Fawcett the following year for their Master Man character. In the case of Master Man, Fawcett simply did as Fox Features had done: they ceased publication of the character and replaced his feature in their Master Comics periodical with a new strip (Bulletman).
However, Fawcett decided to fight Detective's allegations that Captain Marvel, the star character of their Whiz Comics periodical, was also an illegal copy of Superman. Captain Marvel had proven to be very successful for the company, and had, within two years of his existence, become its flagship comic book character and had been the first superhero to be adapted into film, in The Adventures of Captain Marvel. By the mid-1940s, Captain Marvel had become the most popular superhero in the country, his Captain Marvel Adventures was the nation's highest circulated comic book magazine (selling 1.4 million copies an issue), and Fawcett had created an entire family of spin-off characters: Captain Marvel, Jr., Mary Marvel, Uncle Marvel, and even Hoppy the Marvel Bunny. While its lawsuit against Fawcett was still pending, a few of the elements unique to the Captain Marvel strip found their way into Superman comics, including making Superman fly, Superman's arch-villain Lex Luthor a bald "mad scientist" like Captain Marvel's Dr. Sivana, and introducing the adventures of Superman as a teenager under the title Superboy, after Captain Marvel's teenaged sidekick Captain Marvel, Jr. proved to be popular.
Initial hearing
Detective Comics tried and failed to both have Fawcett cease publication of Captain Marvel comics and have Republic Pictures withhold release of the Captain Marvel serial via a cease and desist in June 1941.[2] When the action went unheeded, Detective and Superman, Inc. filed suit against Fawcett in September 1941,[2][3] naming Republic as a co-defendant.[3] The lawsuit between Detective and Fawcett proceeded for seven years before trial finally began in March 1948.[3] By this time, Detective Comics and Superman, Inc. had merged to create one company called National Comics, which became the sole plaintiff in the case.[3]
National's argument was that Captain Marvel's main powers and characteristics (super-strength, super-speed, invulnerability, a skin-tight costume with a cape, and a news reporter alter ego) were derived directly from those of Superman.[4] Fawcett's counterargument was that although the two characters were indeed similar, the similarity was not infringing.[5]
National presented as evidence a binder over 150 pages in length, featuring panels from their comics of Superman performing superheroic stunts juxtaposed with panels of Captain Marvel doing the same stunts in magazines published at a later date than the Superman example.[5] Fawcett countered in two ways: by providing examples of Captain Marvel performing those feats at even earlier points of publication, or by providing examples of other heroic comics characters such as Popeye or Tarzan performing those feats in earlier published comic strips.[5] Testimony from Fawcett employees and artists hired by Fawcett on a freelance basis offered differing positions on whether or not the Fawcett creative teams had been required to copy from Superman comics.[3]
The trial was decided in Fawcett's (Captain Marvel's) favor because of information Fawcett's lawyers had uncovered about Superman's copyright status. The defense lawyers provided evidence that National Comics and the McClure Syndicate failed to copyright several of their Superman newspaper comic strips, and the trial judge decided that National had abandoned its Superman copyright such that it was no longer valid.[3]
The trial judge did find, however, that Captain Marvel was an illegal copy of National's Superman.[4][3]
Appeal
National appealed the decision in 1951 to the United States Court of Appeals for the Second Circuit, with Judge Learned Hand presiding. Judge Hand's ruling in National's favor reversed a part of the trial court's decision.[6] National's Superman copyright was held valid but the McClure strip was not under copyright, and the finding that Captain Marvel was an infringement of that copyright was affirmed.[6]. Judge Hand’s ruling focused on the similarities between the stories and elements used in Captain Marvel and Superman comics, rather than explicitly separating the character concept from the narrative similarities. The case was sent back to a lower court to determine whether specific elements, such as storylines and superpowered feats, constituted infringement.
Instead of trying to appeal the Second Circuit's decision to the Supreme Court or going through the damage assessment on how much of an infringement Captain Marvel was in district court, Fawcett decided to settle with National out of court.[4] Superhero comics sales had decreased dramatically during the early 1950s, and Fawcett decided that it was not worthwhile to continue fighting National.[4][7] National agreed to settle with Fawcett out of court, and Fawcett paid National $400,000 in damages and agreed to cease publication of all Captain Marvel-related comics.[5]
Results of the lawsuit
Shazam! #1 (February 1973), published by DC Comics. On the cover (a memorable symbol of the lawsuit's resolution), Superman cheerfully introduces the character once considered to be derivative of him. Cover art by C. C. Beck, Nick Cardy, and Murphy Anderson.
Fawcett Comics ended up cancelling all of its superhero comics, selling the reprint rights for Hoppy the Marvel Bunny to Charlton Comics, who re-lettered the artwork to identify the strip as Hoppy the Magic Bunny. The entire creative staff of the comic book division was laid off, including noted comic book creators such as C. C. Beck and Otto Binder, and the comics division was shut down.[5]L. Miller and Son, a small British publisher of black-and-white Captain Marvel reprints, adapted Captain Marvel into a derivative superhero, Marvelman, instead of folding their comic book business. This character enjoyed similar popularity in the 1950s and was revived in the 1980s, and itself became the subject of a copyright and trademark dispute after the publisher of its North American reprints ceased operations.
Captain Marvel remained out of print for the rest of the 1950s and the entirety of the 1960s, a period during which superhero comics regained their popularity. In 1967 Marvel Comics trademarked a character of the same name for use in Marvel Super-Heroes #12, and a follow-up self-titled series, which created some difficulties when DC licensed the rights to all of Fawcett's superheroes in 1972, and revived Captain Marvel in a periodical entitled Shazam!. They also obtained reprint rights to the original Fawcett comic books, and began running older stories in their various reprint titles as well as Shazam! itself. However, the license agreement required a per-use fee for every appearance by a Fawcett character, which limited DC's willingness to use the characters, and as a result most of them appeared very rarely once the Shazam! series ended in 1978.
In 1987, DC Comics relaunched Captain Marvel in a miniseries, Shazam!: The New Beginning, and purchased the full rights to all of the Fawcett superhero characters by 1991.[1] Captain Marvel has not proven to be a modern-day success for DC to the degree it had been for Fawcett, due in part to DC not being able to properly promote the character under the "Captain Marvel" name, which is a Marvel Comics trademark. As a result, when DC Comics rebooted its entire comic line under the New 52 initiative in 2011, Captain Marvel was renamed "Shazam" and was reintroduced to comics the following year under that name.[8]
National v. Fawcett is still an often-referenced case in the areas of copyright law and plagiarism because of its readily-accessible subject matter, and the popularity of its author, Judge Hand, among legal scholars. It was occasionally nicknamed Kent v. Batson, a reference to the two superheroes' respective secret identities: National's Clark Kent and Fawcett's Billy Batson.
Superduperman vs. Captain Marbles
In Mad #4, 1953, the story "Superduperman" was published. While it did not specifically reference the lawsuit, the story recounts the battle between Superduperman and "Captain Marbles", which ends in the defeat of Captain Marbles.
1 2 Thomas, Roy; Jerry Ordway (July 2001). "Not Your Father's Captain Marvel! An Artist-by-Artist Account of a Doomed Quest for a 1980s Shazam! Series". Alter Ego. 3 (9). Two Morrows Publishing: 9–17.
1 2 Hughes, Bob. "DC Timeline". supermanartists.comics.org. Archived from the original on February 3, 2006. Retrieved August 9, 2005.
↑ Gore, Matthew H. (June 24, 2001). The Origins of Marvelman. Wayback Machine. Retrieved January 16, 2014. Quote: "With avenues of appeal still open but their outcome obvious after the first court ruled for National Periodicals, Fawcett Publications settled out of court in late-1953. Fawcett agreed to cease publication of all Captain Marvel related titles. However, Fawcett's decision to give up the legal battle came when all of the company's superhero titles were reporting greatly diminished sales was no circumstance".
DC Comics, Inc. is an American comic book publisher and the flagship unit of DC Entertainment, a subsidiary of Warner Bros. Discovery. DC is an initialism for "Detective Comics", an American comic book series first published in 1937.
Superman is a superhero who appears in American comic books published by DC Comics. The character was created by writer Jerry Siegel and artist Joe Shuster, and debuted in the comic book Action Comics #1. Superman has been adapted to several other media including radio serials, novels, films, television shows, theater, and video games.
Charles Clarence Beck was an American cartoonist and comic book artist, best known for his work on Captain Marvel at Fawcett Comics and DC Comics.
Jerome Siegel was an American comic book writer. He is the co-creator of Superman, in collaboration with his friend Joe Shuster, published by DC Comics. They also created Doctor Occult, who was later featured in The Books of Magic. Siegel and Shuster were inducted into the comic book industry's Will Eisner Comic Book Hall of Fame in 1992 and the Jack Kirby Hall of Fame in 1993. With Bernard Baily, Siegel also co-created the long-running DC character The Spectre. Siegel created ten of the earliest members of the Legion of Super-Heroes, one of DC's most popular team books, which is set in the 30th Century. Siegel also used pseudonyms including Joe Carter and Jerry Ess.
Captain Marvel, also known as Shazam, is a superhero in American comic books originally published by Fawcett Comics and currently published by DC Comics. Artist C. C. Beck and writer Bill Parker created the character in 1939. Captain Marvel first appeared in Whiz Comics #2, published by Fawcett Comics. He is the alter ego of Billy Batson, a boy who, by speaking the magic word "SHAZAM!", is transformed into a costumed adult with the powers of superhuman strength, speed, flight, and other abilities. The character battles an extensive rogues' gallery, most of them working in tandem as the Monster Society of Evil, including primary archenemies Black Adam, Doctor Sivana and Mister Mind. Billy often shares his powers with other children, primarily his sister Mary Batson and their best friend/foster brother Freddy Freeman, who also transform into superheroes and fight crime with Billy as members of the Marvel Family, also known as the Shazam Family or Shazamily.
Fawcett Comics, a division of Fawcett Publications, was one of several successful comic book publishers during the Golden Age of Comic Books in the 1940s. Its most popular character was Captain Marvel, the alter ego of radio reporter Billy Batson, who transformed into the hero whenever he said the magic word "Shazam!".
The Marvel Family, also known as the Shazam Family, are a group of superheroes who originally appeared in books published by Fawcett Comics and were later acquired by DC Comics. Created in 1942 by writer Otto Binder and artist Marc Swayze, the team was created as an extension of Fawcett's Captain Marvel franchise, and included Marvel's sister Mary Marvel, their friend Captain Marvel Jr., and, at various times, a number of other characters as well.
Spy Smasher is the name of two fictional characters appearing in comics published by Fawcett and DC Comics. The first is a superhero that was formerly owned and published by Fawcett Comics. The second is a female anti-terrorism government agent and published by DC.
The Power of Shazam! is a 1994 hardcover graphic novel, written and painted by Jerry Ordway for DC Comics. The 96-page story, depicting the revamped origins of former Fawcett Comics superhero Captain Marvel, was followed by an ongoing series, also titled The Power of Shazam!, which ran from 1995 to 1999.
Thaddeus Bodog Sivana is a fictional character appearing in American comic books published by DC Comics. Created by Bill Parker and C. C. Beck, the character is a recurring enemy of the superhero Captain Marvel, who first appeared in Whiz Comics #2 by Fawcett Comics. A mad scientist and inventor bent on world domination, Sivana was soon established as Captain Marvel's main archenemy during the Golden Age, appearing in over half of the Fawcett Captain Marvel stories published between 1939 and 1953.
Adventures of Captain Marvel is a 1941 American 12-chapter black-and-white movie serial from Republic Pictures, produced by Hiram S. Brown, Jr., directed by John English and William Witney, that stars Tom Tyler in the title role of Captain Marvel and Frank Coghlan, Jr. as his alter ego, Billy Batson. The serial was adapted from the popular Captain Marvel comic book character, then appearing in the Fawcett Comics publications Whiz Comics and Captain Marvel Adventures. The character is now owned by DC Comics and is known as Shazam.
Captain Marvel Adventures is a long running comic book anthology series that was published by Fawcett Comics, starring Captain Marvel during the Golden Age of Comic Books.
Whiz Comics is an anthology comic book series that was published by former American comic book publishing company, Fawcett Publications between February 1940 until June 1953. It is widely known for being the comic run in which hugely popular superhero character Captain Marvel (Shazam) made his debut.
Hoppy the Marvel Bunny is a fictional character appearing in American comic books originally published by Fawcett Comics and later DC Comics as a spin-off of Captain Marvel. He was created by Chad Grothkopf (1914–2005), and debuted in Fawcett's Funny Animals #1. A comic book superhero and an anthropomorphic animal, Hoppy has made periodic appearances in stories related to Captain Marvel, today also known as Shazam or The Captain.
Wonder Man is a fictional superhero created by American cartoonist Will Eisner, whose only appearance was in the comic book Wonder Comics #1. The character is of some historical significance due to a lawsuit that resulted from his only appearance.
L. Miller & Son, Ltd. was a British publisher of magazines, comic books, pulp fiction and paperback books intended primarily to take advantage of the British ban on importing printed matter. Between 1943 and 1966, the firm published British editions of many American comic books, primarily those of Fawcett Comics and American paperback books, primarily those of Fawcett Publications' Gold Medal Books. The company is best known for the 1954 creation of Marvelman – a blatant imitation of the Golden Age Captain Marvel – after America's Fawcett Publications capitulated to National Periodicals. L. Miller & Son also published a large line of Western comics — many reprints but also some original titles - and both category fiction and non-fiction paperbacks.
Tawky Tawny is a fictional character, an anthropomorphic tiger who appears as a supporting character of Captain Marvel and the Marvel Family in superhero/talking animal comic book stories published by Fawcett Comics and later DC Comics.
Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432, the case of Superman v. Wonderman, is a 1940 decision of the Second Circuit in which the court held that the archetype of a comic book hero, in this case a cape-wearing benevolent-Hercules figure (Superman), is an idea, which the copyright in the comic strips does not protect against copying; only the specific details of the strips, their particular expression, enjoy legal protection. The author of the court's opinion was Judge Augustus N. Hand and the panel of Second Circuit judges included Judge Learned Hand.
In 1938, Jerry Siegel and Joe Shuster gave away the copyright to Superman to Detective Comics, Inc., the predecessor of DC Comics. In 1948, National Comics settled ownership and royalties disputes and paid $94,013.16 for Superman and Superboy rights. In 1969, a court ruled that Siegel and Shuster's grant of copyright included their renewal rights. Shuster died in 1992 and his heirs re-granted their rights for a $25,000 annual stipend. In 2001, the Siegel heirs took back their rights using the termination provision of the Copyright Act of 1976 and accepted a new purchase offer from Warner.
The 1940s were an essential time for DC Comics. Both National Comics Publications and All-American Publications would introduce many new featured superheroes in American comic books in superhero comics anthology tales like More Fun Comics, Adventure Comics, Detective Comics, Action Comics, All-American Comics, Superman, Flash Comics, Batman, All Star Comics, World's Finest Comics, All-Flash, Star Spangled Comics, Green Lantern, Leading Comics, Sensation Comics, Wonder Woman, Comic Cavalcade and Superboy that would be a staple for the comic book company. Examples of the superheroes include the Flash, Hawkman and Hawkgirl, Johnny Thunder and Thunderbolt, Spectre, Hourman, Robin, Doctor Fate, Congo Bill, Green Lantern, Atom, Manhunter, Doctor Mid-Nite, Sargon the Sorcerer, Starman, Johnny Quick, the Shining Knight, the Star-Spangled Kid and Stripesy, Tarantula, Vigilante, Green Arrow and Speedy, Aquaman, Wonder Woman, Sandy, the Golden Boy, Mister Terrific, Wildcat, Air Wave, Guardian, Robotman, TNT and Dan the Dyna-Mite, Liberty Belle, Superboy and Black Canary. These characters would later crossover in superhero team titles in the 1940s such as the Justice Society of America and the Seven Soldiers of Victory helping pave a way to a shared universe of the publication company. Other used featured characters outside of superheroes included kid titular heroes like the Newsboy Legion and the Boy Commandos. Later Western heroes would be used such as Johnny Thunder, Nighthawk and Pow Wow Smith.
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