Tales of IP hell: The saga of Captain Marvel

Captain Marvel

The original Captain Marvel and his alter ego, Billy Batson.

What qualities make up the perfect arch-nemesis?

Such a villain would have to be totally committed to a hero’s destruction, swearing to fight said hero until the end of time, and to dance on his or her corpse.

An arch-nemesis has to be powerful, too. They wouldn’t be very threatening if the hero could casually brush them off.

Who has all of these qualities? How about a corporation claiming copyright infringement?

Protection of intellectual property (IP) has become a major concern for corporations since the Internet made distributing information so easy.

People may be surprised when Viacom or Disney comes down on them for illegal downloads, but this is not the first time corporations have called in the troops to protect their copyrights. In fact, one superhero, Captain Marvel, has spent more time fighting lawyers than supervillains.

Captain Marvel made his debut in February 1940. Published by Fawcett Comics, Captain Marvel was a 14-year-old boy–Billy Batson–who transformed into a superhero by saying “Shazam,” the name of the wizard who gave him his powers. The Captain had super strength, and speed. He could also fly and summon lightning bolts.

Almost immediately, there was a problem. In 1941, National Comics (a.k.a. DC) sued Fawcett for copyright infringement, saying that Captain Marvel was a rip-off of Superman. After all, National argued, both were flying, dark-haired, strong men who wore tights and capes. The similarities end there (Clark Kent isn’t 14, nor does he get his powers from a magical wizard), but that was enough to convince a judge that Captain Marvel was an illegal copy of Superman.

However, Fawcett won the initial decision on a technicality: National had not copyrighted Superman newspaper comic strips, which constituted neglect, and invalidation, of the copyright. Fawcett was able to make their Superman “copy” because he was based on an un-copyrighted newspaper strip.

National appealed the decision in 1951, and the next year the United States Court of Appeals for the Second Circuit reversed the trial court’s decision.

Superman’s copyright was valid, Captain Marvel was in trouble.

Fawcett settled with National out of court, paying the owners of Superman $400,000 and agreeing to cease publication of Captain Marvel.

Some characters are too good to die, though. A few years later, Captain Marvel was recruited by his former foe.

In 1972, DC licensed Captain Marvel from Fawcett, gaining total control of the character when Fawcett eventually went out of business. This time, DC found itself facing a lawsuit over the Captain.

Captain Marvel

Marvel Comics’ Captain Marvel

During Captain Marvel’s hiatus, Marvel Comics had made the obvious decision to create its own Captain Marvel.

Fawcett’s copyright on the name lapsed in 1966, so Marvel quickly created its own character and copyrighted the name. This version–Mar-Vell–was an actual captain in the Kree army. When DC tried to revive the original Captain Marvel, Marvel Comics sued it over the use of the name.

The result didn’t work out well for either party. DC was allowed to continue calling Billy Batson’s alter ego Captain Marvel, but it could not publish any comics using that name. To this day all of DC’s Captain Marvel comics are titled Shazam, and the company recently changed the character’s name to Shazam to avoid confusion.

Marvel’s Captain Marvel was never as successful as the original, but the House of Ideas needs to continue publishing Captain Marvel comics to maintain its copyright.

Today, Marvel has an unpopular character with a popular name (although the latest series with Carol Danvers as Captain Marvel is a great read), while DC has a popular character with no name.

The story doesn’t end there, though, because Captain Marvel had more (legal) battles to fight across the pond.

Fawcett reprints were sold in the United Kingdom until Captain Marvel’s cancellation, when publisher Len Miller decided to continue the series. In what was surely genuine copyright infringement, writer Mick Anglo turned Captain Marvel into Marvelman. This new version, a young reporter named Micky Moran, got his powers from science, instead of magic. He became Marvelman by saying “Kimota” (“atomic” backwards).

Due to pressure from Marvel Comics, the publishers changed Marvelman’s name to Miracleman. The renamed superhero was in the process of a complete overhaul, courtesy of Alan Moore (author of Watchmen and V for Vendetta) and, later, Neil Gaiman (creator of Sandman). In Moore’s apocalyptic revision, Miracleman’s deranged sidekick destroys London, and superheroes establish a totalitarian world state.

Miracleman

Miracleman

This darker version of Captain Marvel/Marvelman got a lot of praise from comic fans, but you won’t see it on any bookshelf. Even an atomically invigorated superhero can’t fight copyright lawyers.

Eclipse Comics, the company that published the Moore/Gaiman stories, went bankrupt in 1985.

Since 2002, Gaiman has been in a legal battle with Spawn creator Todd Macfarlane over the rights, even using all of the profits from Marvel:1602 on legal costs.

This story’s ultimate irony is that what started out as a fraudulent copy of Captain Marvel has become a disputed property in its own right.

In 2009, Marvel announced that it had acquired the rights to Marvelman, and is reprinting the old Mick Anglo stories. The ownership of the later Miracleman stories is still disputed. Captain Marvel’s arch-nemesis has struck again.

Copyrights are supposed to protect creators of art by making sure that their ideas cannot be stolen. In the case of Captain Marvel, they prevented those ides from being developed.

Captain Marvel/Marvelman/Miracleman/Shazam had the potential to be a really interesting character, but sometimes business gets in the way of art. Maybe DC’s next Shazam series will feature a villain in a three-piece suit, waving cease-and-desist orders.

UPDATED: Miracleman is back. Marvel will reprint the entire series, including Neil Gaiman’s previously-unpublished ending. The first issue hit comic stores January 15.

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