— Jessica Gutierrez Alm, Attorney
Spring is here with summer just around the corner. While many are preparing for barbeques and boating, others are finalizing plans and perhaps costumes in preparation for Comic-Con (Comic Book Convention) season.
As many know, DC Comics and Marvel Comics are the long-time competitors in comic book publishing. Both companies were started in the 1930s and have competed head-to-head for comic book fandom ever since. For a recent example, DC’s Batman vs. Superman movie was originally scheduled to release on the same weekend in 2016 as Marvel’s Captain America 3. After a bit of a standoff for the coveted May date, DC moved up their release. As part of that competition, the two publishers have developed a number of suspiciously similar heroes and villains over the years, with apparent disregard to intellectual property rights.
Here are a few of the most recognizable doppelgangers:
The similarities extend well beyond costumes—these characters share similar backstories, powers, and sidekicks with one another too. The apparent copying is not one-sided, either. Based on first publication dates, both publishers are guilty of borrowing character styles. Read about more close copies here, here, and here.
Comic books are typically protected by both trademark and copyright. The comic can also be protected at different levels—the character, the story, the art, individual panels, the entire book, the series, etc. Arguably, there is substantial similarity in at least some of these levels for the above characters, implicating potential copyright infringement. The close look of the characters may also lead to questions of source, implicating trademark infringement. But both DC and Marvel continue to use these and many other close comparisons.
DC and Marvel are no strangers to litigation. Many an author and artist have sued the publishers for the rights to their works. So the question remains—why aren’t we hearing about constant lawsuits between Marvel and DC over these apparent copycats?
It might be because the last time one major comic book publisher sued another over popular characters, the result was a bizarre character takeover, financial hardship for one publisher, and loss of many fans on both sides. In 1939 and 1940, National Comics Publications (later DC Comics), who had just found great success through their 1938 introduction of Superman, sued multiple publishers for alleged Superman infringements. The defendants included Fawcett Publications, creators of Captain Marvel. National/DC Comics alleged that Captain Marvel infringed the copyrights on Superman (similar stories, powers, and costumes). After a 1951 appeal to the Second Circuit, National/DC Comics won the suit, Fawcett agreed not to publish any more Captain Marvel comics, and the comic book division of Fawcett closed down due to financial troubles.
In the 1960s, Marvel Comics involved themselves in the trouble by trademarking the name CAPTAIN MARVEL. Soon after, DC Comics acquired the copyright rights to the original Captain Marvel from what was left of Fawcett Publications. So Marvel held the trademark, and DC held the copyright, to the very same character that neither publisher actually created. As a result, DC skirted the issue by publishing comics with the Captain Marvel character under a different name, Shazam. And Marvel, holding the name but not the character, used the name Captain Marvel to develop an entirely different character with different powers and story. And that, as one reviewer put it, is how copyright killed Captain Marvel.
Did the Captain Marvel fiasco convince DC and Marvel that they’re better off without crossing paths in litigation? Maybe DC and Marvel have realized that since they’re both potentially carrying liability for various infringements, it’s better to infringe and let infringe. The weird world of copycat characters may also continue due in part to comic book fandom. Fans can be intensely loyal to either DC or Marvel, and regularly follow particular characters or series. Many comic book fans also view litigious publishers as greedy.
Despite their competition, DC and Marvel have displayed cooperation in many situations. For example, the publishers have licensed limited rights allowing for character crossovers (such as where a DC character finds himself in a single Marvel comic issue). The two also co-published DC vs. Marvel Comics, an entire crossover series. The two even co-own the trademarks SUPER HERO and SUPER HEROES, and have teamed up to stop others from using or trademarking similar marks.
Whatever the reason for the publishers’ lack of enforcement against one another, one thing is clear: comic book culture has a strange relationship with intellectual property rights.