In early 1939, entrepreneur Victor Fox started a new comic book company, Fox Publications, in the same Lexington Avenue building as DC, only with a bigger office. In no uncertain terms, Fox told packagers Eisner & Iger to invent him another Superman. Eisner whipped up Wonder Man, giving him more or less identical powers. The hero appeared that March as the cover story of Fox’s inaugural title, Wonder Comics (May 1939), but DC started copyright infringement proceedings as soon as it hit the stands, and on April 16 the courts awarded a permanent injunction that prevented any further appearances.
Victor Fox was a character. He’d look up at the ceiling with a big cigar, this little fellow, very broad, going back and forth with his hands behind him saying, ‘I’m the king of comics! I’m the king of comics!’
The case was heard in the United States Court of Appeals for the Second Circuit on April 29 1940, by a trio of judges headed by Judge Augustus Noble Hand, who was joined by his cousin, Judge Billings Learned Hand. Remember that name, as we shall see more of him later.
The final judgement included this,
We have compared the alleged infringing magazine of Bruns with the issues of Action Comics and are satisfied that the finding that Bruns copied the pictures in the complainant’s periodical is amply substantiated. Each publication portrays a man of miraculous strength and speed, called Superman in Action Comics and Wonder Man in the magazine of Bruns. The attributes and antics of Superman and Wonder Man are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stands revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that Superman wears a blue uniform and Wonder Man a red one. Each is termed the champion of the oppressed. Each is shown running toward a full moon off into the night, and each is shown crushing a gun in his powerful hands. Superman is pictured as stopping a bullet with his person and Wonder Man as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him. Superman is shown as leaping over a twenty storey building, and Wonder Man as leaping from building to building. Superman and Wonder Man are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against evil and injustice.
Defendants attempt to avoid the copyright by the old argument that various attributes of Superman find prototypes or analogues among the heroes of literature and mythology. But if the author of Superman has portrayed a comic Hercules, yet if his production involves more than the presentation of a general type he may copyright it and say of it: A poor thing but mine own. Perhaps the periodicals of the complainant are foolish rather than comic, but they embody an original arrangement of incidents and a pictorial and literary form which preclude the contention that Bruns was not copying the antics of Superman portrayed in Action Comics. We think it plain that the defendants have used more than general types and ideas and have appropriated the pictorial and literary details embodied in the complainant’s copyrights.
What is particularly significant about this case is, firstly, that it was the first copyright lawsuit in comic book history, and also that it shows right from the beginning that Superman’s corporate owners were prepared to aggressively protect their copyrighted characters, and to pursue any infringement through the courts. Later on, this case would also be used as precedent for other cases involving comics, and in particular for one that is central to the story of Marvelman.
And then, of course, there was Captain Marvel.
Captain Marvel was created by writer Bill Parker and artist Clarence Charles ‘CC’ Beck at the request of Roscoe Kent Fawcett of Fawcett Publications, who is quoted on the Captain Marvel Wikipedia page as saying,
I was responsible, I feel, for Captain Marvel. I got us into the comic book business. I said, ‘Give me a Superman, only have his other identity be a ten or twelve-year-old boy rather than a man.’
There were certainly similarities between Superman and Captain Marvel, but there were differences as well. Both had tight brightly coloured costumes with cloaks, were super-strong, extremely fast, and invulnerable to bullets, and both had a news reporter of one kind or another as their alter ego. Even the cover of Whiz Comics #2 seemed to be closely based on the cover of Action Comics #1, with both showing their respective superheroes lifting and throwing cars.
The differences between Superman and Captain Marvel would be enough to distinguish between the two characters today, in a marketplace with thousands of super-powered characters, but in the early 1940s, despite the differences between them, there was really only one superhero in comics, and it seemed obvious at that time that Captain Marvel was definitely based on Superman by the simple fact of his being a super-powered hero character. DC certainly thought that their character was being copied, and issued Fawcett with a Cease and Desist letter in June 1941, just about a year and a half after Captain Marvel first appeared. When this was ignored, they filed legal action against Fawcett for copyright infringement on September 5th, 1941. And then, as is often the case with legal matters, nothing happened for a very long time. At least, nothing of a legal nature happened for a long time. While all parties were waiting for the trial to begin Captain Marvel continued to be a huge success, with several new titles appearing featuring himself and his companions, including Captain Marvel Adventures, Captain Marvel Jr. Comics, Mary Marvel Comics, and The Marvel Family, along with other comics like America’s Greatest Comics, Master Comics, Wow Comics, and of course Whiz Comics, also running stories featuring them. Captain Marvel even eclipsed his predecessor – at one point Captain Marvel Adventures was being published weekly, with reported circulation figures of in excess of one and a quarter million copies an issue, none of which can have made the powers-that-be at DC any happier, I imagine.
Eventually, however, after seven years of who-knows-what on the part of the legal teams involved, the National Comics Publications v. Fawcett Publications et al case went to court before Judge Alfred Conkling Coxe Jr in March 1948. DC argued that Captain Marvel was a direct copy of Superman, while Fawcett argued that there were actually many differences between the two characters, and that Captain Marvel was a distinct and separate character in his own right. Some of Fawcett’s employees testified that they were ordered to imitate Superman, although others denied this, and even stated they were told not to so much as look at the Superman stories, in case of accidental influence. Unsurprisingly, at the end of the trial on April 10th, 1950, the judge agreed with DC. The summing up includes this:
I am satisfied from all the evidence that there was actual copying.
Both Captain Marvel and Superman have the same athletic physique. Both have substantially the same clean-cut faces. Both wear the conventional regalia of the gymnast or circus acrobat – skin-tight uniforms, boots and a cape which is used in flying. The only real difference is in the colour of their costumes, Superman’s being blue and Captain Marvel’s red. The incredible feats, performed by both, such as leaping great distances, flying through the air, exhibitions of marvellous strength and speed, and imperviousness to bullets, shells, explosions, knives and poisons, are identical, and the settings in which the feats are performed are often closely similar. Substantially all of the feats performed by Superman are later duplicated by Captain Marvel. Identical phrases, expressions and dialogues are frequently found in the panels.
Superman is represented as a normal human being, a meek newspaper reporter wearing eye glasses (Clark Kent), who, by throwing off his regular clothes, appears in his athletic costume and becomes a superhuman being and performs superhuman feats in the interests of justice and to overthrow evil. Captain Marvel is likewise represented as a normal human being, a radio reporter (Billy Batson), who, by uttering the magic word Shazam, is transformed into a superhuman being, and, in that capacity, also performs superhuman feats in the interests of justice and to overthrow evil. There are villains in both stories, mad scientists who resemble each other in appearance, and who, by similar devices and methods, attempt to dispose of the hero (Superman or Captain Marvel), so that they can execute their plans of destruction without molestation.
And that should have been that, but it wasn’t. Despite agreeing with DC that Captain Marvel was a direct copy of Superman, the judge actually awarded the case in favour of Fawcett, and against DC.
In 1939 DC had licensed the rights to produce a Superman newspaper strip to the McClure Syndicate, who reprinted existing material, but also had new material produced (by Jerry Siegel and Joe Shuster, the original creators of Superman, incidentally), which they owned the rights to, but which reverted to DC after six months. The strip started on January 16th, 1939, and would run until 1966. What Fawcett’s legal team managed to uncover in the seven years leading up to the actual trial was the fact that a lot of the newspaper strips had been produced with copyright notices either incorrectly attached to them, or totally absent. The trial judge held that, due to the complex nature of their agreement, DC and McClure had actually become business partners in a joint venture, with each party liable for the actions of the other, and that a failure on the part of McClure to affix copyright to the newspaper strips caused DC to have abandoned their copyright on Superman. Therefore DC couldn’t seek to enforce that copyright in a court of law, causing the judge to decide that, even though he felt that Fawcett had actually copied Superman, they didn’t have a case to answer in law – if there was no copyright, there could be no copyright infringement.
Needless to say, DC appealed. The appeal was heard on May 4th 1951, in the United States Court of Appeals for the Second Circuit, and the judge in charge was Judge Billings Learned Hand, whom you may recall from the Wonder Man trial in 1939. In his judgement, dated August 30th 1951, Judge Hand chose to disagree with the lower court, holding that someone could not accidentally abandon their copyright. He says,
We do not doubt that the author or proprietor of any work made the subject of copyright by the Copyright Law may abandon his literary property in the work before he has published it, or his copyright in it after he has done so; but he must abandon it by some overt act which manifests his purpose to surrender his rights in the work, and to allow the public to copy it. There was no evidence in this case of any such an intent on the part either of Detective or McClure; indeed, although McClure’s negligent omissions may have invalidated many of the copyrights in suit, the very fact that it continuously attempted to publish strips with some sort of copyright notice affixed, however imperfect that may have been, is conclusive evidence that it wished to claim a copyright upon them.
He further found that, although McClure had failed to copyright their particular Superman strips, this could not have the effect of forcing DC to no longer hold copyright on the character. He dismissed DC’s claim that Fawcett were unfair competition, too, with a brief and uncharacteristic outburst about what he perceived as the foolishness of the matter in hand towards the end:
The claim for unfair competition is equally baseless. In the first place Fawcett’s magazines bore its name which had no resemblance to Detective’s, and there was no reasonable ground for supposing that readers would mistake one for the other. But the misapprehension goes much deeper. The owner’s right to protect his name or mark from being copied depends primarily upon the likelihood that those who may wish to deal with him will be misled into dealing with the infringer; and that presupposes, not only that the mark has become associated with the owner as the source of the goods, but that this association is an inducement to deal with the owner. In the case of these silly pictures nobody cares who is the producer; least of all, children who are the chief readers; the strips sell because they amuse and please, and they amuse and please because they are what they are, not because they come from Detective.
However, he finds in favour of DC in their claim that Fawcett copied their work:
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.
His final judgement, therefore, was this:
Judgment reversed; and cause remanded for further proceedings consistent with the foregoing opinion.
The following year, on September 5th, 1952, Judge Hand issued a clarification of his findings:
We did mean to say that Fawcett infringed some of the strips which the plaintiff put in suit, assuming that these had been lawfully copyrighted and the copyright had not been forfeited. This we held because Fawcett had argued that none of its strips infringed any of the plaintiff’s; and it was a necessary finding, if we were to proceed to the other questions, which without any such finding would have become moot.
On the other hand, we did not find which of the strips, which the plaintiff put in suit Fawcett had infringed: i.e., copied so closely as to be actionable under Detective Comics v. Bruns Publications. That will demand a comparison of each strip put in suit by the plaintiff with Fawcett’s strip, which the plaintiff asserts does so closely copy that particular strip. Each such comparison really involves the decision of a separate claim; there is no escape from it. The plaintiff may put in suit as many strips as it pleases, but it must prove infringement of each, or it will lose as to that strip. In saying that Fawcett was an unabashed infringer we meant no more than that there were some such instances.
In other words, DC had to go through every Superman story published through 1952 and find panels or whole stories that show Superman doing or saying something that Captain Marvel later seemed to copy. To do this, DC then had to go through every Captain Marvel story ever published and find all offending panels and stories. Fawcett then had to go through every Captain Marvel story and try to find an earlier picture of Captain Marvel doing what Superman did. […] Numerous huge scrapbooks were prepared by each side at huge costs of time and money. Whole staffs of researchers had to be hired, old comics – literally thousands of them – had to be bought and cut up and pasted into the scrapbooks. Lawyers had to inspect each one and their fees grew larger and larger.
And that, finally, was that. Fawcett hadn’t previously appealed Judge Coxe’s original finding that Captain Marvel was a copy of Superman, and it was now too late for them to do so. By 1952 Superman had been around for fourteen years, and Captain Marvel for twelve years, so there was already a huge body of work on both sides, amounting to many hundreds of comics between them – the Fawcett titles alone came to 750 different comics, between the eight titles various members of the Marvel Family had featured in – for their respective legal teams to pick over and compare, and the cost of doing so would be enormous for both sides, and particularly for Fawcett, presumably, as they would probably have come out the worst from all this, and might well have had to bear the legal fees for both themselves and DC. Added to that was the fact that times were tough for superheroes, with DC’s Showcase #4 and the dawn of comics’ Silver Age in October 1956 still a few years away. Comic sales were down quite considerably from their earlier figures in the mid 1940s, and looked like they were going to continue to fall. Captain Marvel Adventures had been the bestselling comic during World War II, but its sales had declined every year from 1945 onwards,
Faced with what seemed like an uncertain future for Captain Marvel, and with the possibility of huge legal fees on top of whatever they might have awarded against them if they went to court, Fawcett decided that retreat was the better part of valour, and settled the case with DC out of court. The settlement was apparently for $400,000, as well as an undertaking from Fawcett never to publish any of the Captain Marvel characters again. One can only imagine what sort of amount Fawcett must have felt they were likely to end up paying out if a sum of $400,000 seemed like a good settlement figure. Slowly but surely they wound up their Marvel titles; Whiz Comics ended with issue #146 in June 1952, Captain Marvel Adventures ended with #150 in November 1953, and The Marvel Family ended with #89 in January 1954. So convinced were Fawcett that comics were in a terminal decline that as well as ceasing to publish any Captain Marvel related titles,
After a twelve-year career, some of it as America’s favourite and bestselling comic character, Fawcett’s Captain Marvel was no more. It wasn’t only in America that Captain Marvel was popular, however, and his demise in America left one British publisher, L Miller and Son Ltd of Hackney, London, with a problem on their hands.
To Be Continued…
(If you’re looking for them, you’ll find bigger copies of all the images in this post here.)