| National Comics Publications v. Fawcett Publications | |
|---|---|
 | |
| Court | United States Court of Appeals for the Second Circuit |
| Full case name | National Comics Publications, Inc. v. Fawcett Publications, Inc., et al. |
| Argued | May 4 1951 |
| Decided | August 30 1951 |
| Citation | 191F.2d 594 (2d Cir. 1951) |
| Case history | |
| Prior history | Complaint dismissed,93 F. Supp. 349 (S.D.N.Y. 1950). |
| Subsequent history | Clarified,198 F.2d 927 (2d Cir. 1952). |
| Holding | |
| An author does not forfeit his original copyright to a piece of intellectual property if his work is contracted to another who fails to properly copyright works which incorporate the original property. Fawcett Publications' Captain Marvel comic strips were proven to have plagiarized those of National Comics' Superman character. | |
| Court membership | |
| Judges sitting | Circuit JudgesHarrie B. Chase,Jerome Frank,Learned Hand |
| Case opinions | |
| Majority | Hand, joined by Chase, Frank |
| Laws applied | |
| Copyright Act of 1909 | |
National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951). was a decision by theUnited States Court of Appeals for the Second Circuit in a twelve-year legal battle betweenNational Comics (also known as Detective Comics and DC Comics) and theFawcett Comics division ofFawcett Publications, concerning Fawcett'sCaptain Marvel character being aninfringement on the copyright of National'sSupermancomic book character. The litigation is notable as one of the longest-running legal battles in comic book publication history.
The suit resulted in Fawcett Publications shuttering the Fawcett Comics division and cancelling all of its superhero-related publications, including those featuring Captain Marvel and related characters. In the 1970s, National, rebranded as DC Comics, licensed the rights to Captain Marvel and revived the character. DC Comics then purchased the rights completely by 1991.[1]
Captain Marvel was not the firstsuperhero comic book character, or even the first Fawcett superhero character, to be the subject of a copyright infringement lawsuit. In 1939, Detective Comics and its rights-holding sister company Superman, Inc. had filed suit againstFox Feature Syndicate for their Superman-like heroWonder Man, and filed against Fawcett the following year for theirMaster Man character. In the case of Master Man, Fawcett simply did as Fox Features had done: they ceased publication of the character and replaced his feature in theirMaster Comics periodical with a new strip (Bulletman).
However, Fawcett decided to fight Detective's allegations that Captain Marvel, the star character of theirWhiz Comics periodical, was also an illegal copy of Superman. Captain Marvel had proven to be very successful for the company, and had, within two years of his existence, become its flagship comic book character and had been the first superhero to beadapted into film, inThe Adventures of Captain Marvel. By the mid-1940s, Captain Marvel had become the most popular superhero in the country, hisCaptain Marvel Adventures was the nation's highest circulated comic book magazine (selling 1.4 million copies an issue), and Fawcett had created an entirefamily of spin-off characters:Captain Marvel, Jr.,Mary Marvel,Uncle Marvel, and evenHoppy the Marvel Bunny. While its lawsuit against Fawcett was still pending, a few of the elements unique to theCaptain Marvel strip found their way intoSuperman comics, including making Superman fly, Superman's arch-villainLex Luthor a bald "mad scientist" like Captain Marvel'sDr. Sivana, and introducing the adventures of Superman as a teenager under the titleSuperboy, after Captain Marvel's teenaged sidekick Captain Marvel, Jr. proved to be popular.
Detective Comics tried and failed to both have Fawcett cease publication of Captain Marvel comics and haveRepublic Pictures withhold release of theCaptain Marvel serial via acease and desist in June 1941.[2] When the action went unheeded, Detective and Superman, Inc. filed suit against Fawcett in September 1941,[2][3] naming Republic as a co-defendant.[3] The lawsuit between Detective and Fawcett proceeded for seven years before trial finally began in March 1948.[3] By this time, Detective Comics and Superman, Inc. had merged to create one company called National Comics, which became the sole plaintiff in the case.[3]
National's argument was that Captain Marvel's main powers and characteristics (super-strength, super-speed, invulnerability, a skin-tight costume with a cape, and a news reporter alter ego) were derived directly from those of Superman.[4] Fawcett's counterargument was that although the two characters were indeed similar, the similarity was not infringing.[5]
National presented as evidence a binder over 150 pages in length, featuring panels from their comics of Superman performing superheroic stunts juxtaposed with panels of Captain Marvel doing the same stunts in magazines published at a later date than the Superman example.[5] Fawcett countered in two ways: by providing examples of Captain Marvel performing those feats at even earlier points of publication, or by providing examples of other heroic comics characters such asPopeye orTarzan performing those feats in earlier published comic strips.[5] Testimony from Fawcett employees and artists hired by Fawcett on a freelance basis offered differing positions on whether or not the Fawcett creative teams had been required to copy fromSuperman comics.[3]
The trial was decided in Fawcett's (Captain Marvel's) favor because of information Fawcett's lawyers had uncovered about Superman's copyright status. The defense lawyers provided evidence that National Comics and theMcClure Syndicate failed to copyright several of theirSuperman newspaper comic strips, and the trial judge decided that National had abandoned its Superman copyright such that it was no longer valid.[3]
The trial judge did find, however, that Captain Marvel was an illegal copy of National's Superman.[4][3]
National appealed the decision in 1951 to theUnited States Court of Appeals for the Second Circuit, with JudgeLearned Hand presiding. Judge Hand's ruling in National's favor reversed a part of the trial court's decision.[6] National's Superman copyright was held valid but the McClure strip was not under copyright, and the finding that Captain Marvel was an infringement of that copyright was affirmed.[6]Judge Hand’s ruling focused on the similarities between the stories and elements used in Captain Marvel and Superman comics, rather than explicitly separating the character concept from the narrative similarities. The case was sent back to a lower court to determine whether specific elements, such as storylines and superpowered feats, constituted infringement.
Instead of trying to appeal the Second Circuit's decision to the Supreme Court or going through the damage assessment on how much of an infringement Captain Marvel was in district court, Fawcett decided to settle with National out of court.[4] Superhero comics sales had decreased dramatically during the early 1950s, and Fawcett decided that it was not worthwhile to continue fighting National.[4][7] National agreed to settle with Fawcett out of court, and Fawcett paid National $400,000 in damages and agreed to cease publication of all Captain Marvel-related comics.[5]
Fawcett Comics ended up cancelling all of its superhero comics, selling the reprint rights forHoppy the Marvel Bunny toCharlton Comics, who re-lettered the artwork to identify the strip asHoppy the Magic Bunny. The entire creative staff of the comic book division was laid off, including noted comic book creators such asC. C. Beck andOtto Binder, and the comics division was shut down.[5]L. Miller and Son, a smallBritish publisher of black-and-whiteCaptain Marvel reprints, adapted Captain Marvel into a derivative superhero,Marvelman, instead of folding their comic book business. This character enjoyed similar popularity in the 1950s and was revived in the 1980s, and itself became the subject of a copyright and trademark dispute after the publisher of its North American reprints ceased operations.
Captain Marvel remained out of print for the rest of the 1950s and the entirety of the 1960s, a period during which superhero comics regained their popularity. In 1967Marvel Comics trademarkeda character of the same name for use inMarvel Super-Heroes #12, and a follow-up self-titled series, which created some difficulties when DC licensed the rights to all of Fawcett's superheroes in 1972, and revived Captain Marvel in a periodical entitledShazam!. They also obtained reprint rights to the original Fawcett comic books, and began running older stories in their various reprint titles as well asShazam! itself. However, the license agreement required a per-use fee for every appearance by a Fawcett character, which limited DC's willingness to use the characters, and as a result most of them appeared very rarely once theShazam! series ended in 1978.
In 1987, DC Comics relaunched Captain Marvel in a miniseries,Shazam!: The New Beginning, and purchased the full rights to all of the Fawcett superhero characters by 1991.[1] Captain Marvel has not proven to be a modern-day success for DC to the degree it had been for Fawcett, due in part to DC not being able to properly promote the character under the "Captain Marvel" name, which is a Marvel Comics trademark. As a result, when DC Comics rebooted its entire comic line under theNew 52 initiative in 2011, Captain Marvel was renamed "Shazam" and was reintroduced to comics the following year under that name.[8]
National v. Fawcett is still an often-referenced case in the areas of copyright law and plagiarism because of its readily-accessible subject matter, and the popularity of its author, Judge Hand, among legal scholars. It was occasionally nicknamedKent v. Batson, a reference to the two superheroes' respectivesecret identities: National's Clark Kent and Fawcett's Billy Batson.
InMad #4, 1953, the story "Superduperman" was published. While it did not specifically reference the lawsuit, the story recounts the battle between Superduperman and "Captain Marbles", which ends in the defeat of Captain Marbles.
| Key People |
|  | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| Publications | |||||||||||
| Universe | |||||||||||
| Lines and imprints |
| ||||||||||
| Adaptations | |||||||||||
| Related | |||||||||||
| Creators and key personnel | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| Marvel/Shazam Family | |||||||||||
| Enemies | |||||||||||
| Publications and publishers |
| ||||||||||
| Affiliated teams | |||||||||||
| Locations | |||||||||||
| In other media |
| ||||||||||
| Miscellaneous | |||||||||||
