Comics Startup 101: Legal and Business Tips for the Independent Comics Creator
Part 9: The Infringement of Others' Intellectual Property - Part III, Copyright
This post is part of a series that grew out of my Comics Startup 101 panel I presented with comics creators at various comic book conventions around the Midwest. You can find the first post discussing doing a clearance search here, the second post discussing choosing a business entity here, the third post discussing contracts (part I) here, the fourth post discussing contracts (part II) here, the fifth post discussing an overview of intellectual property here, the sixth post discussing ways to protect your intellectual property here, the seventh post discussing infringement of the right of publicity here, and the eighth post discussing the infringement of another's trademark rights here. Today, we'll discuss copyright infringement lawsuits involving Superman.
As always, I must disclaim that this is not meant to be an in-depth guide, nor is it meant to be complete legal advice. Any information provided in these posts is general in nature and should not be relied upon as legal advice. Meaningful legal advice cannot be given without a full understanding of all relevant facts relating to an individual’s situation. As such, you should consult with an attorney for specific legal advice that you might need.
The Infringement of
Others’ Intellectual Property – Part III, Copyright
In the last two
posts, we discussed DC being sued for right of publicity and trademarkinfringement. The final set of cases we’ll discuss in the Comics Startup 101
series also involve DC Comics. However, this time they are the ones doing the
suing.
The first case
is a precursor to the Captain Marvel case I discussed previously. In Detective Comics, Inc. v. Bruns
Publications, Inc., et al., DC sued Bruns because it believed its Wonder
Man character infringed on DC’s Superman copyrights.[1] The court found that Wonder Man did infringe
on DC’s copyrights due to the fact they are both “a man of miraculous strength and speed[,]” the “antics” of both characters
are “closely similar[,]” each
hides their identity “beneath ordinary clothing” and when removed stands in
“skintight acrobatic costume[,]” each is shown crushing a gun in his hand, each
is “termed the champion of the oppressed[,]”
each is pictured stopping bullets, each are “endowed with sufficient
strength to rip open a steel door[,]” and “[e]ach is described as being the
strongest man in the world and each as battling against ‘evil and injustice.’”[2] Of
particular note in this case is the court’s statement that even though Superman
might be derivative of a Hercules, or other “heroes of literature and
mythology[,]” since the Superman comics “embody an original arrangement of
incidents and a pictorial and literary form” they are subject to copyright
protection.[3]
The court stated, “So far as the
pictorial representations and verbal descriptions of ‘Superman’ are not a mere
delineation of a benevolent Hercules, but embody an arrangement of incidents
and literary expressions original with the author, they are proper subjects of
copyright and susceptible of infringement because of the monopoly afforded by
the act.”[4] After winning this case and establishing
their copyright interests in protecting Superman, and proving that a comic book
character can be subject to copyright protection, DC initiated the lawsuit
against Fawcett over Captain Marvel.
After their two successful attempts
protecting their Superman copyrights in the ’40s and ’50s, DC tried
again to sue under this theory in the ’80s. They believed the television show The Greatest American Hero infringed on
their copyrights to Superman.[5]
Part of what appears to have prompted the dispute was that after the success of
Superman: The Movie, ABC sought to
license Superboy for a television series.[6]
After failing to secure a license, ABC created a television series about a
normal guy who becomes a superhero.[7]
The television series “contain[ed]
several visual effects and lines that inevitably call Superman to mind,
sometimes by way of brief imitation, sometimes by mention of Superman or
another character from the Superman works, and sometimes by humorous parodying
or ironic twisting of well-known Superman phrases.”[8]
The character also had powers similar to Superman’s.[9]
However, the court found that the lead character in The Greatest American Hero did not infringe DC’s right to Superman
because the way he looks and acts “marks him as a different, non-infringing
character who simply has some of the superhuman traits popularized by the
Superman character and now widely shared within the superhero genre.”[10]
Our lesson from the Wonder Man and The Greatest American Hero cases: any
similarities to an existing character could leave you susceptible to an
infringement lawsuit. Personally, I believe that over the years courts have
become more adept at analyzing the differences and similarities between
characters in a way that promotes creation, which partially explains the
different outcomes DC obtained in the Wonder Man and Captain Marvel cases and
the result in The Greatest American Hero
case.
The
end?
This post brings to an end my initial series of
Comics Startup 101 posts. I hope you enjoyed reading them as much I enjoyed
writing them. Fear not, there will still be plenty of useful posts in the future
dealing with similar topics.
Do not let anything contained in these
posts frighten you from making your works. The intent is not to frighten you,
but to educate you about possible problems that could arise. None of the things
we discussed should scare you away from making the comic book you want to make.
Even though I barely scratched the surface of the issues you will need to be
aware of as you start your business, I believe I have given you a great base of
knowledge with which to proceed forward.
As you start your career making comics,
keep in mind the topics and lessons we discussed. If you choose to start
another type of business, the lessons learned here should still prove useful. These
issues are universal to most businesses, and understanding them and learning
from them will help keep you and your business out of trouble.
[1]
Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432, 433 (2nd
Cir. 1940).
[2]
Id.
[3]
Id.
[4]
Id. at 433-34.
[5]
Warner Bros., Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, 238
(2nd Cir. 1983).
[6]
Id. at 236.
[7]
Id.
[8]
Id. at 237.
[9]Id.
[10]
Id. at 243.
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