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THE LAW IS A ASS for 10/24/2000
"The Law is a Ass" Installment # 66
Originally written as installment # and published in Comics Buyer's Guide issue # 602, May 31, 1985 issue and Alter Ego Vol. 3, No. 3
About the time I was thinking about what to write for this column, Tony Isabella suggested that a column about some of the real-life lawsuits involving comic books might be interesting. So did I, not only because it saved all that thinking I was thinking about. Tony even pointed out a recent article in Variety, which listed many of the most famous such suits, which immediately peaked my interest even more. After all, half the research required is already done. So, I decided to write such a column.
I had only two problems. The first was convincing Don and Maggie Thompson, my editors at Comics Buyer's Guide, that it would be an interesting article. We, that is the editors and I, went back and forth on this one, neither side willing to give in to the other until I pointed out hat it was either a column on copyright suits or a column on Flash #'s 346 and 347.
I knew they find it interesting.
The second, and bigger, problem was keeping the column within some manageable length, after all the law has more suits than a Men's Warehouse clearance sale, I guarantee it. Moreover, the law is the only profession which routinely produces one hundred page documents written on eight and one-half by fourteen inch paper and still calls them a "Brief."
So, what I decided to do was compare three famous suits, all involving DC as the plaintiff; one in which DC successfully sued over copyright infringement, one which was kind of a draw, and one where DC lost; to help you see what is and isn't infringement. Hopefully, in that I succeeded. As for the manageable length part, well...
One more thing, kind of an historical note. This is one of the more extensively re-written of my columns. Not because the law changed or anything. Still two things happened which prompted this column to be changed a bit more.
First, the beginning section of the column discussed the ramifications a news story that T.H.U.N.D.E.R. Agents had been optioned for a movie. And as said movie never actually materialized, the discussion seemed rather dated and pointless. So I took it out.
The fact that it wasn't particularly funny helped in that decision, too.
The second thing that happened occurred almost fifteen years after I wrote the column. That's when Roy Thomas asked me to revise it as a stand-alone article for his excellent magazine Alter Ego, information about which can be found at www.twomorrows.com. Tell 'em Bob sent you. Largely, because I'm a better writer now than I was fifteen years ago, at least I hope so, I'd hate to think I peaked at my beginning, the version I did for Alter Ego is better than the original. So, whenever possible, I used the Alter Ego version.
I didn't think you'd mind.
"The Law is a Ass"
Installment # 66
If imitation is the sincerest form of flattery and flattery will get you nowhere, then there was a time when Superman was going nowhere fast.
Since that first day in 1938 when Superman appeared in Action Comics # 1 and reshaped an industry in his image, everybody was scrambling to be the first to be second. Every comic-book publisher wanted to publish its own version of Superman.
The winner of this rather dubious derby was Bruns Publishing. Bruns had a comic-book division known by Fox Comics and in May of 1939, Fox Comics published Wonder Comics # 1, a book which featured the first appearance of Wonderman. (As a sidebar, it should be noted that the artist on Wonderman was one Will Rensie, a name that should be familiar to all even without resorting to a road trip to Mr. Mxyzptlk's Fifth Dimensional land of Zrrrf.)
Wonderman was a cape-wearing hero who had a civilian secret identity; wore a skin-tight costume under his street clothes; had super strength, super speed, flight, and invulnerability; and tended to rip open steel doors, bounce bullets off his chests, leap between buildings and generally made the world safe for the girl next door. The most important attribute of Wonderman for our purposes was that Harry Donenfeld and M.C. Gaines, head honchos at Superman's publisher Detective Comics, Inc., thought he bore too great a resemblance to Superman. In fact, Detective Comics, Inc. did more than simply notice a resemblance between Wonderman and Superman, they filed a lawsuit in the federal district court in New York City against Bruns Publishing claiming that Bruns and Wonderman infringed on the copyrights that Detective Comics had in Superman. (Federal court, because the copyright law is a federal law.)
The battle between these publishing houses was fought in the district trial court and, well to make along story--as civil trials aren't wont to be--short, Detective Comics won. The judge ruled that Bruns and Wonderman did infringe on the Superman copyright. Of course, that didn't end the war; Bruns appealed the trial court's decision to the United States Court of Appeals for the Second Circuit. The decision of that case as written by Judge August Hand--and yes that really is his name--and can be found in volume 111 of the Federal Reporter, Second Edition, page 432. For those of you familiar with the legal profession's shorthand form for case-citing, that would be Detective Comics, Inc v. Bruns , 111 F. 2d. 432 (2nd. Cir., 1940). Those of you unfamiliar with legal case-citing form should remember what I just said, it will turn up again.
In his decision, Judge Hand acknowledged Bruns' defense that Superman was based on the Hercules myth--a benevolent man of great strength who used his abilities for good--but disagreed with Bruns' second point, that because Wonderman was based on the same myths, he duplicated Hercules not Superman. Judge Hand ruled that despite Superman's and Wonderman's joint classic origins, Superman's stories were arrangements of incidents and literary expressions which were original and properly copyrightable. He found that incidents in Wonderman's stories were so similar to incidents in the copyrighted Superman stories, that the Wonderman stories infringed on the copyright of DC's Superman stories. Indeed, the major difference Judge Hand found between Superman and Wonderman was that Superman's skin-tight costume was blue, while Wonderman's was red.
As a result of Judge Hand's ruling, Bruns Publishing could not publish any more stories which infringed on Superman's copyright; in other words, stories in which Wonderman did basically the same sort of thing that Superman did. Given that all Wonderman could do was the basically same sort of thing that Superman did, that particular restriction was impossible to follow, and Wonderman was seen no more.
Well the Bruns/Fox Wonderman, anyway, let's leave Marvel's Simon Williams out of this.
I'll have to accept Judge Hand's ruling. I've never seen a Wonderman story, so I can't really say if he infringed on Superman's copyright. I don't suppose anyone of you out there would want to send me your copy of Wonder Comics # 1 so I could compare? Remember, I ask this in the name of journalistic fairness, so the First Amendment commands your compliance.
(Of course, I know the First Amendment doesn't say anything of the sort, Justin. Mind your own business! I'm trying to score a thirteen thousand dollar freebie here .)
Still, Detective Comics' success against Bruns, Fox and Wonderman didn't stop other publishers from releasing comic books with characters which Detective thought was too similar to Superman. In 1940, Fawcett Publishing released Whiz Comics which featured the Big Red Cheese himself--good old Fred MacMurray in skin-tights, himself--Captain Marvel. National Comics Publications, which is what Detective Comics, Inc. was being called by then, thought that Captain Marvel infringed on the Superman copyrights. Buoyed by its success against Bruns, National sued Fawcett in federal district court.
National's claim against Fawcett was the same as it was against Bruns: that Captain Marvel was in costume, powers, appearance, and storylines a clone of Superman. This was a long, hard fought lawsuit, which dragged out from the forties into the mid-fifties. The fact that for much of that time Captain Marvel was more popular, appeared in more comics, and sold better than Superman probably didn't help either side in trying to reach an out of court settlement either.
Most comic historians will tell you the suit finally ended when Fawcett signed an agreement to cease publishing Captain Marvel and his entire multi-speciesed family. Thus, most feel that the suit never came to a definitive conclusion. This is not exactly true. Although the case settled out of court before a final resolution could be reached, what that resolution would be was a foregone conclusion. What many comic historians don't realize or remember is that in 1950, after a lengthy trial, the trial judge ruled that Captain Marvel did, in fact, infringe on Superman's copyright.
The trial judge cited Judge August Hand's ruling in the Wonderman case to hold that in overall concept and execution, Captain Marvel was so similar to Superman that his stories infringed on Superman's copyright. The judge cited the same type of similarities in costume, appearance, powers, and actions as were listed in the Wonderman case as well as other points of interest, like the fact that both Superman and Captain Marvel had as a recurring antagonist a bald mad scientist bent on conquering the world, both were reporters, and the testimony from some Fawcett employees that they were ordered to imitate Superman.
(Yes, I know other Fawcett employees vehemently denied that they were ever ordered to imitate Superman, and even testified that they were ordered not even to look at Superman stories so as to avoid the possibility of unconscious imitation. The statement of some Fawcett employees doesn't change the fact remains that the original court opinion specifically mentions the testimony of some employees who said they were ordered to imitate Superman. As I wasn't there in that courtroom during the trial and doubt very much that any of you were either, I'll have to rely on the judge's opinion as to what the testimony was--after all, he read the actual transcript of the actual testimony--and believe that at least some of the Fawcett employees testified they copied Superman.)
However, despite the fact that the trial judge ruled Captain Marvel infringed on Superman's copyright, Fawcett still won the trial. Why? Well, Fawcett had a two-pronged defense, it argued first that it did not infringe on the Superman copyright, then argued in the alternative that even if it did violate the Superman copyright, National had abandoned its copyright on Superman and couldn't enforce it in a court of law. (Yes, we lawyers do that sort of thing all the time; advance two contradictory simultaneously and do it with a straight face. It's the second most useful thing they teach in law school, right after how to hide ones bill padding.)
The basis for Fawcett's argument that National had abandoned the Superman copyright was the Superman comic strip. In the 40s, National licensed the rights to a Superman newspaper strip to the McClure Syndicate. These strips were to be copyrighted under the McClure Syndicate initially, but would revert to National after six months. Under this license McClure produced several years worth of a Superman comic strip. The trial court felt that this agreement went beyond the boundaries of a simple licensing agreement, and that DC and McClure were business partners in a joint venture, each jointly liable for the actions of the other. That was where the problem lay.
The McClure Syndicate was negligent in copyrighting the newspaper strip stories and failed to affix the correct copyright symbol--that familiar C enclosed in a circle followed by the year of publication and the name of the copyright holder--on the strips. In fact, many strips appeared without any copyright notice of any kind. The trial court ruled that when National didn't take steps to insure that its business partner copyrighted the newspaper stories properly, National abandoned its copyright on Superman. In other words, because the McClure Syndicate didn't copyright the Superman newspaper strip, National had given up its copyright on Superman and didn't have it anymore, so couldn't enforce it against Fawcett. Thus, the court ruled, even though Captain Marvel infringed on Superman's copyright, National could not sue Fawcett for infringement. There was no longer any copyright, so there could be no copyright infringement.
Naturally, National appealed. It had a major cash cow in Superman, a character who had appeared in comics, comic strips, movies and TV and was earning lots of money, but whose stories, because of the trial court's ruling, were not protected by any copyright at all. Literally anyone could publish Superman stories. Why both Fox and Fawcett could publish Superman stories and there wouldn't be a thing National could do about it. National realized that if it let the decision of the trial court stand, it would be closing the barn door long after the cash cow had left.
The appeal went to the Second Circuit and in 1954 Judge Learned Hand--Yes, that's August's brother, and yes, that's really his name, too. What I want to know is: how did Mrs. Hand know her little boys were going to become judges, so as to give them such unquestioningly judicial names in the first place?--partially reversed the trial court's decision. This decision is reported in--and you remember how to read that legal case-cite form, don't you, I warned you it was coming again--National Comics Publications v. Fawcett Publishing, 191 F. 2d. 594 (2nd Cir., 1954).
Learned Hand agreed with the trial court that Captain Marvel infringed on Superman's copyright. In fact, he wrote, "The evidence... leaves no possible doubt that the copying was deliberate; indeed it takes scarcely more than a glance at corresponding strips of Superman and Captain Marvel, to assure the observer that the plagiarism was deliberate and unabashed." However, he disagreed with trial court's ruling that National had abandoned its copyright on Superman.
Judge Hand ruled that copyright abandonment requires some overt action by the copyright holder which makes its intent to abandon the copyright clear and unambiguous. National never manifested such an intent with regard to its copyright on Superman. Hand noted that National published all of its Superman stories in Action and Superman with a proper notice of copyright, which was a clear manifestation of National's intent to preserve, not abandon, the Superman copyright. Judge Hand also ruled that the McClure Syndicate and National were not partners in a joint venture; McClure was nothing more than a licensee of National. Thus, National wasn't legally bound by the failure of the Syndicate to copyright the Superman strip; the licensor could not be held liable for the lapses of the licensee. All of which meant that National's copyright on Superman was, according to Judge Hand, fully enforceable.
Judge Hand send the case went back to the trial court for further proceedings consistent with his ruling. As he had already ruled that Fawcett infringed on National's copyright, that ship had, legally speaking, sailed. Basically the remand was an order for further proceedings to determine the extent of the damages that National had suffered at the hands of Fawcett by Fawcett's copyright infringement. Those further proceedings never concluded, however, as Fawcett and National settled out of court.
Why did these two parties settle now, when they had resisted a settlement through the many years of trial and appeal? The reasons decision were varied. In the first place, Fawcett had already lost the important question; the trial court had already ruled, and Judge Hand agreed, that Captain Marvel infringed on Superman's copyright. That issue could not be litigated again. So the result of any new trial was a foregone conclusion; Fawcett would be found to have violated Superman's copyright and would have to pay monetary damages.
The second reason was, according to an article written by Mike Uslan for Amazing World of DC Comics # 15, that Judge Hand noted the trial court did not rule exactly which Captain Marvel stories infringed on which Superman stories. Judge Hand ruled that to assess the amount of damages, there had to be a determination of the exact amount of infringement which had occurred. That, Judge Hand reasoned, would require a story-by-story comparison of all the Superman and Captain Marvel stories published up to that time. National would have to do was go through every Superman story and every Captain Marvel story to find instances in which Superman did some feat which Captain Marvel seemed to copy later, while Fawcett would have to go through every Superman and Captain Marvel story to find instances in which Superman did something that Captain Marvel had done first, to try to mitigate its damages. "Yes this panel of Captain Marvel fighting a giant cave man does appear to be similar to that earlier panel of Superman fighting a giant gorilla, but in this even earlier Captain Marvel story, he's fighting a giant orangutan ..." and so it went. According to Uslan, each side prepared huge scrapbooks of stories and comparisons, which consumed both time and money--lots of it--on both sides. Okay, the time might not have mattered to these publishers. Both had low-level interns and this sort of scut work--Presidential interpretation of the functions of interns notwithstanding--was exactly what interns were for. It was the money, the lots of money that the lawyers would charge to pour over these scrapbooks that probably had the most influence on the two opponents.
The third reason was that by the mid-fifties, things were not rosy for comic books. Sales were slumping to all-time lows, although most companies today would probably kill for those slumped sales of forty years ago. Moreover, comic books weren't as popular. They were being attacked in Congress and by noted psychiatrists, with one such noteworthy in the forefront. And even though now we're not sure his criticisms were Wertham damn, back then, they commanded a lot of attention. A comic-book censorship board was being formed. Fawcett decided it wasn't worth the battle, economically speaking, to continue publishing comic books and closed up its comic-book division--except for the licensed Dennis the Menace comics it was doing. As for the lawsuit, Fawcett settled out of court for four hundred thousand dollars and an agreement not to publish Captain Marvel again.
Almost two decades later, Fawcett agreed to let DC Comics, Inc. publish the adventures of Captain Marvel, figuring that way they would get some money out of the character and DC could hardly sue itself for copyright infringement and the Big Red Cheese returned. In fact, he and Superman are even the best of friends, now.
Our third case is more recent. After the success of Superman: the Movie, ABC TV tried to option the rights to do a Superboy TV series from Warner. Warner refused on the belief that any such TV series would hurt the success of the planned Superman movie sequels. ABC's response was, fine we'll do one of our own, and commissioned Stephen Cannell to create and produce a super hero show for prime time television. The result was The Greatest American Hero and a law suit.
Warner Bros v. American Broadcasting Companies, 720 F2d. 231, (2nd Cir., 1983) was filed by Warner Brothers, the corporation that owned DC Comics, Inc. and the Superman movies, claiming that The Greatest American Hero was... you guessed it, a copyright infringement of Superman. Again the issue before the court was, was Hero "sufficiently similar" to Superman to constitute infringement. But this time the theory of the suit was a little different.
In the suits against Bruns and Fawcett, the argument was that published stories of Wonderman and Captain Marvel infringed on the copyright of published Superman stories, because they had so many scenes showing the heroes doing the same acts. In the Hero suit, Warner was trying to prevent any Hero stories from ever appearing in the first place. Warner wanted to keep the concept of a cinematic flying hero fresh enough to attract repeat business at the box office, and feared that the weekly exploits of Hero would cause audience saturation and box office death for any Superman movie sequels. So, Warner couldn't wait for any Hero stories to appear, they had to strike on a different theory.
Warner's argument was that Hero's concept would "inevitably call Superman to mind"; that Hero was so similar to Superman in concept that the concept itself infringed upon the concept of Superman, whether the individual stories did or not.
Ultimately, Warner's strategy caused Warner to lose the suit. The court ruled that in order to prove conceptual copyright infringement DC had to show more than that there were similarities between Superman and Hero, Warner had to show that the concepts of both properties were "substantially similar."
The court looked at how flying or super strength or whatever were portrayed in both properties, not just at the fact that both properties shared the same powers and abilities far beyond those of mortal men. It compared the total concept and feel of the properties to see if there was so much similarity as to evidence infringement. Under this test, even if there are substantial similarities in the heroes' powers, apperance or exploits, there would not be an infringement if there are sufficient differences in the concept and feel of the properties.
Conceptually, Superman is a straight super hero strip. Superman is proud, competent, almost as handsome as I, has full control of his abilities, and has dedicated his life to heroics out of some selfless desire to do good. (All together now: With great powers...)
Hero, on the other hand was a satire. Ralph Hinkley was ordinary looking, used his powers reluctantly, even begrudgingly, had little control over them, couldn't fly worth a complete set of Brother Power, the Geek, and preferred the normalcy of his civilian life, if teaching a retred of the "Sweat Hogs can be considered normal.
To quote the court, "Hero is to Superman as Inspector Clouseu is to Sherlock Holmes."
So where does this leave all of us? Exactly where it found us. I don't think any one out there is considering recreating Superman in a new package anyway, so the likelihood of a new such suit is slight. We have learned that new creators should look to the concept and over all feel of a new strip to see if it along with the hero's powers and appearance are similar to something that already exists. If new creations share the same powers as Superman and are also of the same concept and feel, then probably the prospective creator should forget the creation. A creation which is that similar in both powers and concept would likely be nothing new, but a redoing of something old. And the world doesn't really need another Superman.
Extra Saturdays, now that's what the world needs.
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