Captain Marvel was not the first superhero comic book character or even the first Fawcett superhero character to be sued for copyright infringement, there have been several similar cases.
In 1939 Detective Comics and an affiliate of Superman, Inc. sued Fox Feature Syndicate for the superman-like character Wonder Man, and the following year they sued Fawcett for the character Master Man. In the case of Master Man, Fawcett did the same thing as Fox Features, they stopped publishing the character and replaced him in the periodical Master Comics with the new Bulletman hero. However, Fawcett decided to fight DC’s accusations that Captain Marvel, the main character in their periodical Whiz Comics, was also an illegal copy of Superman. This article will detail all the stages of the longest running superhero litigation.
A suit against Fawcett Publications, Inc. and Republic Pictures Corporation, together with a subsidiary of Republic Pictures, Inc. for copyright infringement under the Copyright Act of 1909, as amended, 17 U.S.C.A. § 1. Thereafter, and for unfair competition. The suit was filed on September 5, 1941, by Detective Comics, Inc. and Superman, Inc., later merged into National Comics Publications, Inc. which was substituted as the sole plaintiff. An amended complaint was filed in November 1945, but the suit did not go to trial until March 1948. In the complaint the plaintiff sought damages and injunctive relief for alleged copyright infringement of all issues of two comic book magazines, namely Action Comics and Superman. Plaintiff alleges that these magazines published a great deal of original material, including “many and a series of original cartoons, scenes, characters, incidents, and pictorial sketches revolving primarily around the figure and character of “Superman”.
In more detail:
The violations alleged in the complaint are as follows:
- Fawcett’s publication of two magazines entitled “Whiz Comics” and “Captain Marvel Adventures,” which contained “a continuous series of comics revolving around the main character known as ‘Captain Marvel,‘” which were copied from plaintiff’s copyrighted material.
- Fawcett’s publication of additional magazines entitled “Captain Marvel, Jr. “, “Mary Marvel Comics“, “WOW Comics“, “America’s Greatest Comics” and “Master Comics“, also containing the continuous strip cartoon known as “Captain Marvel”, which violates DC’s copyright.
- The production and exhibition throughout the United States between 1940 and 1941 by Republic of a serial photoplay entitled The Adventures of Captain Marvel, which infringes DC’s copyright.
- The production and distribution, in connection with these magazines and the film, of certain merchandise depicting a Captain Marvel figure, which constitutes unfair competition.
For its part, Fawcett argued in its principal defenses, non-infringement of copyright, invalidity thereof, and lack of unfair competition, as stated in the complaint from plaintiff.
An important element in the present case was to actually prove DC’s copyright of its character, since it was the “revoked” or unconfirmed copyright of Superman that was an important detail and basis for the victory. The “Superman” stories in the first six issues of Action Comics, published between June and November 1938, were reprinted by Detective with the 1939 copyright date in issues 1 and 3 of Superman, published in the summer and winter of 1939, respectively. Fawcett insists that this resulted in a loss of copyright in the stories. This would be so if it were not for the fact that these two issues of Superman magazine contained substantial new and original material, in addition to the Superman stories, making them “new works subject to copyright” under Section 6 of the Act.
This section contains no provision for the copyright notice date to be used with respect to such “new works,” but it does provide that “publication of any such new works shall not affect the force or validity of any existing copyright” in the original works or be “not construed” to secure or extend copyright in such original works. Thus each issue contained 64 pages and sold for ten cents a copy. Publication continued until the time of the trial. Each issue was copyrighted in the name of DC. The magazine contained several comic strips depicting various characters. The strip consisted of a series of panels, and the panels contained scenes and incidents related to the main character and, in what was called a balloon, a catchphrase, or remark, or description of the event presented. Under Co. v. Edward Thompson Co., 2 Cir., 176 F. 833, 837; Adventures in Good Eating v. Best Places to Eat, 7 Cir., 131 F.2d 809, 813; Amdur, Copyright Law & Practice, Chap. XIV, § 29, pp. 495-497; Ball, Law of Copyright and Literary Property, § 76, pp. 173-174. the publication of these two issues of Superman with a 1939 copyright date did not result in the loss of copyright in the stories originally published in Action Comics from 1938.
The next evidence was already comparing the actual similarity of the characters. However, the evidence of actual copying was inconsistent. Plaintiff called some of Fawcett’s employees. They testified that they received instructions from their supervisors to imitate Superman’s stripes, dialogue, and script as accurately as possible, and that they subsequently did so. Fawcett called the supervisors, who denied giving such instructions and denied any copying. An independent artist testified to Fawcett’s admission by the head artist, who drew the first Captain Marvel cartoons, that he had copied Superman. The head artist, however, denied making such admissions. Both sides called in experts, who contradicted each other about the significance of the claimed similarities and differences between the depictions of the two characters, their appearances, costumes, etc., and the superhuman feats they accomplished. As such, all issues of Action Comics were properly copyrighted on behalf of DC and the copyrights to them and to the Superman stories published in them were not lost as a result of reprinting in Superman magazine. However, the court considered the arguments of defense attorneys, who insisted that some of the comics that were printed in newspapers (rather than being published in separate issues) were not properly registered. Subsequently, that is what allowed them to question the validity of DC’s copyright on Superman. The judge agreed with the defense attorneys and found the copyright invalid and Fawcett acquitted. All this did not prevent the same judge from stating that, de facto, Captain Marvel was an illegal copy of Superman.
As a result of the decision in favor of Fawcett in the court of first instance, DC (National Comics) filed an appeal.
National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951), is the name of the decision of the U.S. Court of Appeals for the Second Circuit in a twelve-year litigation between National Comics (also known as Detective Comics and DC Comics) and Fawcett Comics division of Fawcett Publications over the fact that the character Captain Marvel Fawcett Publishers infringes the copyright of the Superman comic book character published by National.
The judge, after considering the appeal, noted, “…they leave no doubt that the copying was intentional. Indeed, one need only look at the respective ‘stripes’ of Superman and Captain Marvel to see that the plagiarism was deliberate and unconscionable.”
It is worth noting that this lawsuit is known as one of the longest legal battles in the history of comic book publishing.
The lawsuit led Fawcett Publications to close its Fawcett Comics division and cancel all of its superhero-related publications, including those featuring Captain Marvel and related characters. In the 1970s, National, renamed DC Comics, licensed the rights to Captain Marvel and revived the character. In 1991, DC Comics bought the rights outright and gave the character a new name, Shazam, to avoid more litigation.