National Comics Publications v. Fawcett Publications
Encyclopedia
National Comics Publications v. Fawcett Publications, 191 F.2d 594
(2d Cir. 1951), was a decision by the United States Court of Appeals for the Second Circuit
in a twelve-year legal battle between National Comics
and the Fawcett Comics
division of Fawcett Publications
, concerning Fawcett's Captain Marvel
character being an infringement on the copyright
of DC's Superman
comic book
character. The litigation is notable as one of the longest running legal battles in comic book publication history.
The suit resulted in the dissolution of Fawcett Comics and the cancellation of all of its superhero-related publications, including those featuring Captain Marvel and his related characters. DC later acquired the rights to Captain Marvel in the 1970s, which they hold to this day.
Captain Marvel was not the first superhero
comic book character, or even the first Fawcett superhero character, to be the subject of a copyright infringement lawsuit. In 1939, National Comics (then known as Detective Comics, Inc.; it did not use the name National until 1946) had filed suit against Fox Feature Syndicate
for their Superman-like hero Wonder Man
, and filed against Fawcett the following year for their Master 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 their Master Comics
periodical with a new strip (Bulletman).
However, after receiving a cease-and-desist letter from National Comics in June 1941, Fawcett decided to fight National's allegations that Captain Marvel, the star character of their Whiz Comics
periodical, was 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 be adapted into film
, in The Adventures of Captain Marvel. In fact, by the mid-1940s, Captain Marvel had become the most popular superhero in the country, his Captain Marvel Adventures was the nation's highest circulated comic book magazine (selling 1.4 million copies an issue), and Fawcett had created an entire family
of spin-off characters: Captain Marvel, Jr., Mary Marvel
, Uncle Marvel
, and even Hoppy the Marvel Bunny
. While its lawsuit against Fawcett was still pending, a few of the elements unique to the Captain Marvel strip found their way into Superman comics, including making Superman fly, Superman's arch-villain Lex Luthor
a bald "mad scientist" like Captain Marvel's Dr. Sivana, and introducing the adventures of Superman as a teenager under the title Superboy
, after Captain Marvel's teenaged sidekick Captain Marvel, Jr. proved to be popular. These may or may not have been deliberate, or even conscious decisions, for instance, it is generally acknowledged that the bald Lex Luthor was an artist's error, but the fact of the similarity remained.
The trial was decided in Fawcett's favor because of information Fawcett's lawyers had uncovered about Superman's copyright status. The defense lawyers provided evidence that National Comics and the McClure Syndicate failed to copyright several of their Superman newspaper comic strips
, and the trial judge decided that National had abandoned its Superman copyright such that it was no longer valid. The trial judge did find, however, that Captain Marvel was an illegal copy of National's Superman.
, with famed Judge Learned Hand
presiding. Judge Hand's 1952 ruling in National's favor reversed the trial court's decision. National's Superman copyright was held valid, and the finding that Captain Marvel was an infringement of that copyright was affirmed. The case was then remanded to the trial court for damage assessment. Instead of appealing the Second Circuit's decision, Fawcett decided to settle with National out of court. Superhero comics sales had decreased dramatically during the early 1950s, and Fawcett decided that it was not worthwhile to continue fighting National. 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.
Fawcett Comics ended up cancelling all of its superhero comics, selling the reprint rights for Hoppy the Marvel Bunny to Charlton Comics
, who re-lettered the artwork to identify the strip as Hoppy the Magic Bunny. The entire creative staff of the comic book division was laid off, including noted comic book creators such as C. C. Beck
and Otto Binder
, and the comics division was shut down. L. Miller and Son, a small British
publisher of black-and-white Captain 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 1967 Marvel Comics
trademarked a character of the same name
for use in Marvel 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 entitled Shazam!
. They also obtained reprint rights to the original Fawcett comic books, and began running older stories in their various reprint titles as well as Shazam! 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 the Shazam! series ended in 1978. In 1980, DC bought the rights to the Fawcett characters outright, and in 1987 relaunched the character in a miniseries, Shazam!: The New Beginning. 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.
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.
Issue 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.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2d Cir. 1951), was a decision by the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
in a twelve-year legal battle between National Comics
DC Comics
DC Comics, Inc. is one of the largest and most successful companies operating in the market for American comic books and related media. It is the publishing unit of DC Entertainment a company of Warner Bros. Entertainment, which itself is owned by Time Warner...
and the Fawcett Comics
Fawcett Comics
Fawcett Comics, a division of Fawcett Publications, was one of several successful comic book publishers during the Golden Age of Comic Books in the 1940s...
division of Fawcett Publications
Fawcett Publications
Fawcett Publications was an American publishing company founded in 1919 in Robbinsdale, Minnesota by Wilford Hamilton "Captain Billy" Fawcett . At the age of 16, Fawcett ran away from home to join the Army, and the Spanish-American War took him to the Philippines. Back in Minnesota, he became a...
, concerning Fawcett's Captain Marvel
Captain Marvel (DC Comics)
Captain Marvel is a fictional comic book superhero, originally published by Fawcett Comics and later by DC Comics. Created in 1939 by artist C. C. Beck and writer Bill Parker, the character first appeared in Whiz Comics #2...
character being an infringement on the copyright
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
of DC's Superman
Superman
Superman is a fictional comic book superhero appearing in publications by DC Comics, widely considered to be an American cultural icon. Created by American writer Jerry Siegel and Canadian-born American artist Joe Shuster in 1932 while both were living in Cleveland, Ohio, and sold to Detective...
comic book
Comic book
A comic book or comicbook is a magazine made up of comics, narrative artwork in the form of separate panels that represent individual scenes, often accompanied by dialog as well as including...
character. The litigation is notable as one of the longest running legal battles in comic book publication history.
The suit resulted in the dissolution of Fawcett Comics and the cancellation of all of its superhero-related publications, including those featuring Captain Marvel and his related characters. DC later acquired the rights to Captain Marvel in the 1970s, which they hold to this day.
Pre-trial
Superhero
A superhero is a type of stock character, possessing "extraordinary or superhuman powers", dedicated to protecting the public. Since the debut of the prototypical superhero Superman in 1938, stories of superheroes — ranging from brief episodic adventures to continuing years-long sagas —...
comic book character, or even the first Fawcett superhero character, to be the subject of a copyright infringement lawsuit. In 1939, National Comics (then known as Detective Comics, Inc.; it did not use the name National until 1946) had filed suit against Fox Feature Syndicate
Fox Feature Syndicate
Fox Feature Syndicate was a comic book publisher from early in the period known to fans and historians as the Golden Age of Comic Books. Founded by entrepreneur Victor S...
for their Superman-like hero Wonder Man
Wonder Man (Fox Publications)
Wonder Man is a fictional comic book superhero, created by Will Eisner, whose first appearance was Wonder Comics #1 .The character is of some historical significance by virtue of the lawsuit that resulted from his only appearance....
, and filed against Fawcett the following year for their Master Man
Master Man (Fawcett Comics)
Master Man was a short-lived comic book superhero created during the 1930s to 1940s period historians and fans called the Golden Age of Comic Books. His exact creator is uncertain: His first story, in Fawcett Comics' Master Comics #1 , was drawn by Newt Alfred, but that issue's cover was drawn by...
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 their Master Comics
Master Comics
Master Comics was a monthly ongoing comic book anthology series that began its 133-issue run during the 1930s and 1940s period known as the Golden Age of Comic Books...
periodical with a new strip (Bulletman).
However, after receiving a cease-and-desist letter from National Comics in June 1941, Fawcett decided to fight National's allegations that Captain Marvel, the star character of their Whiz Comics
Whiz Comics
Whiz Comics was a monthly ongoing comic book anthology series, which was published by Fawcett Comics from February 1940 with issue #2 and stopping at issue #155 in June 1953, best known for introducing Captain Marvel. The first issue published of Whiz Comics was issue #2...
periodical, was 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 be adapted into film
Film adaptation
Film adaptation is the transfer of a written work to a feature film. It is a type of derivative work.A common form of film adaptation is the use of a novel as the basis of a feature film, but film adaptation includes the use of non-fiction , autobiography, comic book, scripture, plays, and even...
, in The Adventures of Captain Marvel. In fact, by the mid-1940s, Captain Marvel had become the most popular superhero in the country, his Captain Marvel Adventures was the nation's highest circulated comic book magazine (selling 1.4 million copies an issue), and Fawcett had created an entire family
Marvel Family
The Marvel Family is a group of fictional characters, a team of superheroes in the Fawcett Comics and DC Comics universes. Created in 1942 by writer Otto Binder and Fawcett artists C. C...
of spin-off characters: Captain Marvel, Jr., Mary Marvel
Mary Marvel
Mary Marvel is a fictional character, a comic book superheroine, originally published by Fawcett Comics and now owned by DC Comics. Created by Otto Binder and Marc Swayze, she first appeared in Captain Marvel Adventures #18 in...
, Uncle Marvel
Uncle Marvel
Uncle Marvel is a fictional comic book character originally created for Fawcett Comics, and today owned by DC Comics, who appears in stories about the Marvel Family team of superheroes...
, and even Hoppy the Marvel Bunny
Hoppy the Marvel Bunny
Hoppy the Marvel Bunny is a fictional comic book superhero and funny animal originally published by Fawcett Comics as a spin-off of Captain Marvel. He was created by Chad Grothkopf , and debuted in Fawcett's Funny Animals #1...
. While its lawsuit against Fawcett was still pending, a few of the elements unique to the Captain Marvel strip found their way into Superman comics, including making Superman fly, Superman's arch-villain Lex Luthor
Lex Luthor
Lex Luthor is a fictional character, a supervillain who appears in comic books published by DC Comics, and the archenemy of Superman, although given his high status as a supervillain, he has also come into conflict with Batman and other superheroes in the DC Universe. Created by Jerry Siegel and...
a bald "mad scientist" like Captain Marvel's Dr. Sivana, and introducing the adventures of Superman as a teenager under the title Superboy
Superboy
Superboy is the name of several fictional characters that have been published by DC Comics, most of them youthful incarnations of Superman. These characters have also been the main characters of four ongoing Superboy comic book series published by DC....
, after Captain Marvel's teenaged sidekick Captain Marvel, Jr. proved to be popular. These may or may not have been deliberate, or even conscious decisions, for instance, it is generally acknowledged that the bald Lex Luthor was an artist's error, but the fact of the similarity remained.
Initial hearing
National filed suit against Fawcett in September 1941. The lawsuit between National and Fawcett proceeded for seven years before trial finally began in 1948. 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. Fawcett's counterargument was that although the two characters were indeed similar, and Superman's publication debut predated Captain Marvel's by eighteen months, the differences in essential plot and concept elements (Captain Marvel's alter-ego was a child, not an adult; his powers were magic-based, not science-based) meant that Captain Marvel was not an infringement of National's copyrighted character, but a property in its own right.The trial was decided in Fawcett's favor because of information Fawcett's lawyers had uncovered about Superman's copyright status. The defense lawyers provided evidence that National Comics and the McClure Syndicate failed to copyright several of their Superman newspaper comic strips
Superman (comic strip)
Superman was a daily newspaper comic strip which began on January 16, 1939, and a separate Sunday strip was added on November 5, 1939. These strips ran continuously until May 1966. In 1941, the McClure Syndicate had placed the strip in hundreds of newspapers...
, and the trial judge decided that National had abandoned its Superman copyright such that it was no longer valid. The trial judge did find, however, that Captain Marvel was an illegal copy of National's Superman.
Appeal
National appealed the decision in 1951 to the United States Court of Appeals for the Second CircuitUnited States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, with famed Judge Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
presiding. Judge Hand's 1952 ruling in National's favor reversed the trial court's decision. National's Superman copyright was held valid, and the finding that Captain Marvel was an infringement of that copyright was affirmed. The case was then remanded to the trial court for damage assessment. Instead of appealing the Second Circuit's decision, Fawcett decided to settle with National out of court. Superhero comics sales had decreased dramatically during the early 1950s, and Fawcett decided that it was not worthwhile to continue fighting National. 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.
Results of the lawsuit
Charlton Comics
Charlton Comics was an American comic book publishing company that existed from 1946 to 1985, having begun under a different name in 1944. It was based in Derby, Connecticut...
, who re-lettered the artwork to identify the strip as Hoppy the Magic Bunny. The entire creative staff of the comic book division was laid off, including noted comic book creators such as C. C. Beck
C. C. Beck
Charles Clarence Beck was an American cartoonist and comic book artist, best known for his work on Captain Marvel at Fawcett Comics and DC Comics....
and Otto Binder
Otto Binder
Otto Oscar Binder was an American author of science fiction and non-fiction books and stories, and comic books...
, and the comics division was shut down. L. Miller and Son, a small British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
publisher of black-and-white Captain Marvel reprints, adapted Captain Marvel into a derivative superhero, Marvelman
Marvelman
Marvelman, also known as Miracleman for trademark reasons in his American reprints and story continuation, is a fictional comic book superhero created in 1954 by writer-artist Mick Anglo for publisher L. Miller & Son. Originally intended as a United Kingdom home-grown substitute for the American...
, 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 1967 Marvel Comics
Marvel Comics
Marvel Worldwide, Inc., commonly referred to as Marvel Comics and formerly Marvel Publishing, Inc. and Marvel Comics Group, is an American company that publishes comic books and related media...
trademarked a character of the same name
Mar-Vell
Captain Marvel is a fictional character owned by Marvel Comics. The character was created by writer-editor Stan Lee and designed by artist Gene Colan and first appeared in Marvel Super-Heroes #12 Captain Marvel (Mar-Vell) is a fictional character owned by Marvel Comics. The character was created...
for use in Marvel 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 entitled Shazam!
Captain Marvel (DC Comics)
Captain Marvel is a fictional comic book superhero, originally published by Fawcett Comics and later by DC Comics. Created in 1939 by artist C. C. Beck and writer Bill Parker, the character first appeared in Whiz Comics #2...
. They also obtained reprint rights to the original Fawcett comic books, and began running older stories in their various reprint titles as well as Shazam! 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 the Shazam! series ended in 1978. In 1980, DC bought the rights to the Fawcett characters outright, and in 1987 relaunched the character in a miniseries, Shazam!: The New Beginning. 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.
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.
Superduperman vs. Captain Marbles
In MadMad (magazine)
Mad is an American humor magazine founded by editor Harvey Kurtzman and publisher William Gaines in 1952. Launched as a comic book before it became a magazine, it was widely imitated and influential, impacting not only satirical media but the entire cultural landscape of the 20th century.The last...
Issue 4, 1953, the story "Superduperman
Superduperman
"Superduperman" is a satirical story by Harvey Kurtzman and Wally Wood published in the fourth issue of Mad . Lampooning both Superman and Captain Marvel, it revolutionized the types of stories seen in Mad, leading to greatly improved sales, and it was influential on writers, notably Alan Moore,...
" 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.