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Thursday, September 2, 2010
Legal Tips for Comic Creators
By Andrew B. Turk, Esq. & Peter M. Eichler, Esq.
Heroic battles have always been a cornerstone of good comic book stories. However, some of comics’ greatest battles have occurred, not in comic book pages, but in the courts. Although comic book heroes almost always prevail in the end, comic book writers and artists have not always fared as well as their four-color creations. The legal troubles of such luminaries as Jerry Siegel and Joe Shuster, Joe Simon and Jack Kirby and Steve Gerber are the stuff of comics legend. More recent legal disputes involving Jim Shooter, Rob Liefield, Todd McFarlane and Neil Gaiman have decided the fates of important characters and even entire comic lines. Comic book creators, whether they are industry superstars or promising newcomers, can no longer afford to ignore the legal side of the comic book profession.
The following tips may help you avoid the pitfalls encountered by others, as illustrated below, and increase the likelihood of your ability to retain ownership of your creations:
1. In your meetings with prospective employers, etc., make very clear that you are agreeing to nothing in connection with ownership of your Property until you consult with your lawyer.
2. Retain a lawyer who is particularly knowledgeable in the area of Intellectual Property, i.e. one who knows both the comic and merchandising professions, before you enter into any agreements, oral or written, that relate to your Property. Be careful here, as lawyers sometimes claim expertise that they might not have, so check their credentials carefully.
3. Do everything possible not to give up ownership of the trademarks and copyrights that you have created and/or will create, especially in connection with any agreements that you sign. Give up other points before you give up control.
4. Try to anticipate the likely success of your Property, i.e. do not let short-term finances shut you off from potential major gains in the future. For example, if merchandising is likely, taking a larger piece of the backend as against more money up front might be a sensible approach.
In the early 1930s Jerry Siegel and Joe Shuster created Superman. In 1938, after years of rejection, they sold all the rights to Superman to DC Comics for approximately $120. Later, after not only seeing their creation spun off into toys, movies and other merchandising, but also into Superboy and other knock-offs, Siegel an Shuster sued DC Comics, won a minor monetary victory and were promptly fired from their jobs at DC. In 1973, after years of litigation, Siegel and Shuster settled all claims against DC in exchange for a small annual stipend and recognition as Superman’s creators.
In 1940, Fawcett Publications published Whiz Comics starring Captain Marvel, a super hero who, like Superman, was super strong and nearly indestructible. Although their powers and costumes were similar, the two characters were, in reality, quite different. Whereas Superman’s origin was grounded firmly in science fiction, Captain Marvel’s powers came from magic and his stories relied heavily on elements of fantasy and whimsy not seen in the straightforward stories starring the Man of Steel. Still, when Superman’s popularity was matched and then surpassed, DC, alleging copyright infringement, sued to stop publication of Captain Marvel. The resulting lawsuit lasted for years. The Court ultimately found that Fawcett had copied DC, but also that DC had copied Fawcett. Ultimately, with legal proceedings ongoing and the popularity of super hero comics fading, Fawcett abandoned not only the fight, but publication of super hero comics altogether. There can be little doubt that the lawsuit was in large part responsible for Fawcett’s decision to cease publication of Captain Marvel.
In 1954, Joe Simon and Jack Kirby created The Fighting American to spoof another of their more storied creations, Marvel Comics’ Captain America, while also providing biting political satire. In 1997, Rob Liefield’s Awesome Entertainment acquired publication rights to the all but forgotten hero. In the process of revamping the Fighting American, Liefield added a shield. The move, and the resulting similarities to Captain America soon drew the ire of Marvel Comics. Although the two companies eventually reached a compromise, costly litigation was involved and the comic, and Awesome entertainment itself, eventually folded.
In 1968, Stan Lee, editor in chief of Marvel Comics, realized that the name “Captain Marvel” was no longer protected. Declaring that the name was too good to waste, he ordered Roy Thomas to create a character by the same name. The resulting hero actually had more in common with Superman than the original Captain Marvel. Captain Mar-Vell was an outer space visitor from the planet Kree. Originally sent as the vanguard of a Kree invasion, Mar-Vell turned against his planet and became a protector of earth under the name Captain Marvel. Years later, the character was killed off but others have stepped forward to use the name--and keep Marvel’s claim to it fresh. In 1973, when DC obtained rights to publish the adventures of Captain Marvel, they had to work out a deal with Marvel Comics. Ultimately, the new comic, and subsequent animated and live-action television shows were marketed under the name Shazam, creating confusion for legions of comic fans.
As the Captain Marvel situations illustrates, superhero names are a valuable commodity. Almost all comic fans know how, in the 1950s, DC successfully re-vamped golden age characters such as the Flash, Green Lantern and Hawkman to usher in a new age of superhero comics. Marvel did much the same thing with the Sub-Mariner, Human Torch and Captain America. However, other names were also re-used and characters re-vamped including the Vision, the Angel, and even the villainous Yellow Claw. Marvel even published the Invaders, a comic set during World War II which allowed it to update and utilize a pantheon of second string heroes from its golden age.
In 1973, Howard the Duck, a cigar smoking, foul-tempered parody of Disney’s Donald Duck, first appeared in an issue of Fear, a comic published by Marvel Comics. When the character proved unexpectedly popular, it creator, Steve Gerber, sued for a portion of the profits. The case eventually settled on undisclosed terms and Howard the Duck went on to several comic series, a black and white magazine and even a movie. In a bit of poetic justice, Marvel Comics eventually ran “afowl” (pun intended) of Disney. That lawsuit was settled, after many years, by the novel contrivance of having Howard don pants.
In 1981, unable to obtain a license to use Superman from Warner Bros., DC’s parent company, ABC created and broadcast “The Greatest American Hero.” The show featured an “average guy” who used a magical costume to performed heroic deeds with mixed results. The powers endowed by the magical, caped costume--flight, strength, invulnerability and “holographic vision”--bore a striking resemblance to Superman. Once again, DC sued. This time, however, they were unsuccessful. The court found that the perception of the TV character, “a timid, reluctant hero” was “profoundly different” from that of Superman.
In 1992, Neil Gaiman wrote an early issue of Spawn for his friend, Todd McFarlane. For his story, which appeared in issue No. 9, Gaiman created two new characters, Medieval Spawn and Angela. Unfortunately for both Gaiman and McFarlane, no particular pains were taken at the outset to address compensation or copyright issues relating to the two characters. In an all too familiar story, the characters proved popular far beyond either Gaiman’s or McFarlane’s expectations, spawning (pun intended again) action figures and several comic series of their own. After years of litigation and expense, Gaiman was found to have separate intellectual property rights in the characters he created. Now, Gaiman owns characters from the Spawn universe that he probably cannot use without infringing on McFarlane’s own copyrights. Settlement negotiations are believed to be ongoing between the two comic book superstars.
In 1992, Jim Shooter, former editor-in-chief of Marvel Comics formed his own comic book company, Defiant Comics. The first book to be published by Defiant was to be “Plasm,” a story of earth people taken to a planet where technology was based on biological plasma. Yet, before the first issue shipped, Defiant became embroiled in litigation with Marvel Comics. Consumers, Marvel claimed would confuse Defiant’s title with their own book, “Plasmer,” featuring a character able to split into her good and evil selves. Defiant first changed the name of its title to “Warriors of Plasm.” Then, Defiant’s attorneys, having clearly done their homework, introduced evidence demonstrating the realities of the comic book market and the minimal likelihood for confusion in the direct market where both titles were to be sold. Defiant prevailed only to go out of business a few months later.
Todd McFarlane, creator of Spawn and purveyor of detailed action figures is also a well-known sports enthusiast. In 1993, McFarlane gave a minor character in his Spawn comic the name of a professional hockey player. When the hockey player found out about the character, he sued McFarlane claiming defamation and damage to his ability to market himself. The costly litigation lasted years.
As these examples demonstrate, comic book characters, sometimes just their names, can be valuable property. Minor characters can rocket to popularity and monetary success, rewarding creators who have thought ahead. So, before you try to sell your creation, get some protection. Talk to a lawyer.
This information is intended for general information purposes only and not as specific legal advice. You are urged to consult an attorney concerning your situation and any specific legal questions you may have.
Mr. Turk and Mr. Eichler are members of the law firm of Jennings, Strouss & Salmon, P.L.C. (www.jsslaw.com). Mr. Turk has collected comic books for over thirty years and is an avid comic book historian. He has provided plot assists for a number of comic book stories and has lent his name to a character in Ultimate X-Men. Mr. Eichler, chair of the Firm’s Intellectual Property Group, is one of the world’s most prominent trademark and copyright lawyers, has been serving clients in this area for over 42 years, and has represented and/or now represents Rob Liefield as well as such properties as STAR WARS, STAR TREK, RAMBO II and III, TERMINATOR 2 and 3, and the upcoming TERMINATOR 4. Mr. Turk and Mr. Eichler can be contacted at abturk@jsslaw.com and peichler@jsslaw.com respectively.
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April 22, 2008:
February 4, 2008:
November 20, 2006:
A Comic-Con without the Captain
