Ninth Art - For the Discerning Reader -

Article 10: TM Comics

What's the difference between a young Clark Kent and Superboy? When is a superhero not a superhero? Paul O'Brien wades in to the frustratingly baffling world of comic book intellectual property law.
10 April 2006

Once again, it's time for people to take an interest in the wonderful world of intellectual property. Joanne and Laura Siegel have won the latest round of litigation in the battle for control of Superboy, with the Los Angeles District Court holding that the copyright belongs to them. The court also held (by refusing to dismiss the point out of hand) that SMALLVILLE may or may not infringe against that copyright. Meanwhile, for some strange reason, the question of Marvel and DC's unlikely joint trade mark on the word 'superhero' has reared its head in sections of the blogosphere.

Both of these, to be honest, are slightly academic points in terms of how they affect the reader. It doesn't ultimately matter whether the Marvel/DC 'superhero' trade mark is valid because there are damned few people who have the money and inclination to litigate it. Like most things in law, you only have to worry about whether you're right if somebody's around to provide an effective challenge. Marvel and DC do in fact enforce the trade mark periodically - they forced the indie book SUPER HERO HAPPY HOUR to change its name a couple of years ago - but hey, it's not like any of these guys can afford to contest the point.

The rights to Superboy, on the other hand, are worth enough to justify the fight. But it's still unlikely that DC readers will see drastic changes such as the permanent abandonment of all Superboy reprints. An outright win for the Siegels will probably just lead to DC buying them out or paying them a royalty. It's ultimately a fight about money, rather than control.

Money, of course, is the point of intellectual property. Copyright and trade marks deal with different topics, but both are meant to serve the same basic function of ensuring that people are rewarded for their own efforts. Since many fans seem to use the terms almost interchangeably - a sure giveaway that they don't actually know what the terms mean - it's perhaps worth going back to basics here.

Copyright is exactly what it says: the right to make copies of something. It applies to a wide variety of artistic works, in the broad sense of that term. Novels, artwork, musical compositions, sound recordings, films and so on. Actual artistic merit is immaterial. The idea is that if you've created an artistic work, you should have the exclusive right to exploit it. After all, it wouldn't be fair if you put in all the work, and then somebody came along, printed up a load of copies, and kept all the money for himself. For that matter, even if this person isn't making any money off his copies, he's still flooding the market with cheap copies that will stop you making a living off your work. This is also unfair. So the plucky artist is given the right to stop copying altogether.

In reality, of course, the creators frequently sell off their copyright to publishing companies. Nothing wrong with that. The whole point of the right, after all, is to give the creator an economic monopoly. The objective of ensuring an income for the creator is achieved just as effectively by letting him sell his rights to somebody else.

(File sharing represents a serious threat to the whole model, naturally. There's some force in the argument that copyright, as originally conceived, is based on rather outdated notions about what copying involves. The basic point about preserving an income for the creators, on the other hand, still holds up. Personally, I think there's some force in the idea of compulsory licensing of copyright works, a model that already exists in other areas of intellectual property such as design rights. The utopian notion in some quarters that artists should effectively work entirely for tips strikes me as unreal. Those artists who really want to try doing that can already put their money where their mouth is by waiving their copyright, and some do.)

Trade marks have a totally different function. A trade mark is something that identifies the manufacturer or supplier of goods. Classically, we're talking about brand names, company names and logos. The idea is simple: you can't go around putting other people's names and logos on your products, because that would confuse people. This system is in the interests of the manufacturers, who don't want to have their customer base exploited by bootleggers. It's also in the interests of the consumers, who can have more confidence that they're not being sold inferior bootleg goods. In theory, everybody wins.

This is all well and good when you're dealing with obvious logos, or completely made-up names - 'Kodak', for example. But it's more complicated when you're dealing with words that already exist. Part of the answer is that each trade mark only applies within a particular area of business, so you don't get a complete monopoly. A common English word can still be distinctive in a specific area. See, for example, the current fight between Apple Computers and the Beatles' company, Apple Corps - both perfectly distinctive names because (at least until recently) they operate in different areas and neither of them has got anything to do with fruit.

The Marvel/DC joint trade mark on 'superhero', on the other hand, is rather baffling. For one thing, 'superhero' is quite literally a generic term that isn't remotely distinctive within the field of comics. Nobody uses the word 'superhero' in a sense that implies a badge of origin. Even if you accept that Marvel and DC have an effective duopoly over the superhero field, that doesn't mean that the generic term for the product somehow transmutes into a trade mark. Indeed, the very fact that the term purportedly refers both to Marvel and to DC - who almost never co-publish anything - is a powerful indication that it has no function whatsoever as a badge of origin.

That said, it's worth stressing that even if it's totally valid, the trade mark only stops you using the word 'superhero' as a trade mark. A telling example is the website for the renamed HERO HAPPY HOUR, which continues to freely refer to the characters as superheroes. In other words, Marvel and DC only objected to the word 'superhero' being used as part of the title, and thus becoming part of a rival trade mark. Nobody is laying claim to the exclusive use of the word 'superhero' in a broader sense.

Fictional characters, and superheroes in particular, hover uneasily in the structure of copyright and trade mark law. Spider-Man, for example, serves double duty as a symbol of Marvel Comics and as a fictional character. If you see Spider-Man merchandise, then you're going to assume it's genuine - ie, authorised by Marvel. His status as a trademark is easy to justify. With marginal characters, it becomes a little trickier, but the principle still holds up. The copyright position is more fiddly because, as a starting point, copyright looks to the work as a whole, rather than the individual character. This can create all manner of complications where, as in superhero comics, you have characters who are delineated and defined across a range of different stories, by different writers and different artists, working in different decades, and sometimes reinterpreting the character to the point where they're unrecognisable.

This would seem to be how we ended up with the ungainly spectacle of Superman and the original Superboy being treated as two different fictional characters even though, from a reader's perspective, they're the same person. Nonetheless, they still come from different stories. It leads us to the present head-spinning predicament in relation to SMALLVILLE, where the Siegels claim that it's based on the copyright-protected character of Superboy, while DC argue that no, it's based on the copyright-protected character of Clark Kent. For almost all practical purposes there is no distinction between these two propositions, and yet the courts now have to try and disentangle them.

The interrelating influences and developments within the Marvel and DC universes would be a copyright lawyer's nightmare were it not for the simplifying factor that each universe is meant to be owned by one person. When an idea of this sort turns out to be owned by somebody else, it's difficult to see how the resulting rights can meaningfully be disentangled. What's the difference between a young Clark Kent and Superboy? Presumably the answer is that while they're both derived from Superman, they're different derivations. If Superboy was merely "a younger Superman" then there would be nothing much to distinguish him from the existing character. There must be something more distinctive than that in order to make him a truly separate character from Superman; therefore, in theory, it ought to be possible to have another young Superman who is distinctive in a different way, and therefore isn't Superboy. But really, barring drastic revisionism, how different can two young Supermen be?

Copyright law in particular is not set up to accommodate the unusual circumstances of Marvel and DC's nested stories. We've seen similar points being made in the past by Marv Wolfman, who argued that the character of Jessica Drew might be owned separately from Spider-Woman, even though Jessica was created to be Spider-Woman's secret identity. Perhaps more obviously, it would be absurd if two distinct characters suddenly ceased to become separate legal entities simply because a later writer retconned them into being the same person.

Attempting to analyse superhero comics in this way leads to bizarre results where the ownership of a character depends on their clothes and their age, as developed across hundreds of stories, each of which is a copyrighted work all of its own. I'm not convinced there is a satisfying answer to the practical questions this raises; if the courts are forced to provide one, the implications may be highly artificial, and the consequences thoroughly awkward.

Paul O'Brien is the author of the weekly X-AXIS comics review.

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