So fundamental to being a fan of DC’s Captain Marvel is the copyright issue I chose that subject as the first post for this website. Really, despite the longevity and commercial appeal of this character, there is no factor more controlling of this character and his stories.
Below you will find Carl Shinyama‘s most thorough review of how Cap came to be in the copyright mess he is in. This comes from his notes on Episode 3 of the Shazamcast! If you listened to that episode – and, I mean, of course you did, right? – you know that Carly also proposed what I believe is the most common sense idea associated with the Captain Marvel character since at least 1953 (see section IV below).
There is one small tweak that I think needs to be added to Carl’s argument and I’ll post it after you read through all the goodness of his write up.
I. The Backstory
This is a subject with a complicated backstory, but necessary to know in order to understand and discuss the Captain Marvel trademark, that is, how Marvel Comics came to own the Captain Marvel trademark despite Captain Marvel originating elsewhere almost thirty years prior.
National Comics Publications (Now DC Comics) sued Fawcett Publications for copyright infringement of their Superman in 1941 under the Copyright Act of 1909. Under today’s copyright laws, the case would have been thrown out.
Before Captain Marvel, National had established a habit of eliminating the competition; they were suing anyone who was publishing Superman-like strongmen for copyright infringement. In fact, in 1940 before the famous Captain Marvel case, National had sued Fawcett for their Master Man character (despite him being published two months after Captain Marvel). Rather than pursuing the matter, Fawcett decided to cease publication of Master Man after just six issues.
However, in the case of Captain Marvel, when National decided to take legal action, Fawcett decided to fight the lawsuit.
The initial trial, which began in 1948, was actually decided in Fawcett’s favor. Despite ruling that Fawcett infringed on National’s Superman copyright, it was decided that National had abandoned their Superman copyright when the McClure syndicate failed to copyright several of their Superman newspaper comic strips, making it no longer a valid copyright.
Unfortunately, in the appeal, the original ruling of the abandoned copyright was reversed.
Fawcett then settled out of court (for a total of $400,000) and agreed to cease publication of all Captain Marvel-related comics in 1953. Captain Marvel would then be out of print for the remainder of the 1950’s and throughout the entirety of the 1960’s.
II. Marvel Comics Steps In
This is all relevant because…
Marvel Comics trademarked the Captain Marvel name in 1967. (October 27th, 1967 to be exact.)
Two months later, they would publish their own Captain Marvel in Marvel Superheroes #12. In May of 1968, Captain Marvel got his own on-going comic series.
What this meant…
When DC Comics licensed the character in 1972, they couldn’t legally published a comic book with the Captain Marvel name in the title (even though they did just that for a little while).
As a result, DC Comics decided to title Captain Marvel’s books as Shazam. Shazam, as we know, is the name of the wizard who gave Billy Batson his powers, but this lead to confusion, with people thinking that Captain Marvel’s name was Shazam. (This would be something that would plague DC’s Captain Marvel for decades.)
Marvel, because they didn’t want to lose the trademark¹, would have to continue publishing a Captain Marvel book every few years or risk losing the trademark. DC Comics would snatch it up the first chance they get. This resulted in Marvel publishing seven different Captain Marvel characters before finally achieving a critical success hit when they promoted long-time Ms. Marvel to Captain Marvel.
¹ Trademark laws require that your mark has to be used in commerce. If you stop using the mark in commerce, you lose it.
III. Where Things Stand Today
Having said that…
Despite their newfound critical acclaim with Carol Danvers, too many long-time comic book fans associate Captain Marvel name with the Big Red Cheese. In fact, many people often mistake which character belongs to which company.
Trademarks are a brand name. It’s intended to be used to identify and distinguish the goods and/or services of one seller from those of others, and to indicate the source of goods and/or services.
This is not a problem for Marvel per se, but it does raise a concern because…
Despite legal ownership of the Captain Marvel trademark, there exists a shaky, if not outright lack of distinguishment of the goods by consumers in the Captain Marvel brand that Marvel is providing them. Worse, a lot of people mistake the source of the goods.
IV. Time for a Change
Here’s the money question:
This poses a question: If, after almost five decades with the trademark, and Marvel cannot provide consumers with a goods that predominantly distinguishes itself from their competitor’s goods, WHY NOT SHARE THE CAPTAIN MARVEL TRADEMARK?
After all, Marvel and DC already share joint ownership of the super-hero trademark. This establishes a precedence.
Due to the unique history with the Captain Marvel name, where both Marvel and DC have a character of the same name, surely they share the trademark?
Before I get to my argument, I fully acknowledge that…
Marvel has little to no incentive to share it. In fact, I’m quite sure they’d feel too threatened by DC’s Captain Marvel.
They’d have a point, because as recent history indicates, DC’s Captain Marvel is a bigger commercial threat than Marvel’s Captain Marvel. Since Carol Danvers became Captain Marvel, according to ICVo2, not once did any of her issues outsell Thunderworld. Clearly, the appeal of C.C. becks’ and Bill Parker’s Captain Marvel is a commercial threat.
And here’s my argument…
Marvels own Captain Marvel’s single issues struggle to sell more than 25,000 in print and that’s with DC treating their own Captain Marvel like an unwanted step-child with no regular publication (Captain Marvel is the only New 52 Justice League character with no on-going book). Worse, Marvel’s new Ms. Marvel outsells the Carol Danvers Captain Marvel by a considerable amount on a regular basis. This proves that the Captain Marvel name does little for Marvel, and that the driving force for commercial success has more to do with the appeal of the character. Speaking of which, what happens when Carol Danvers is no longer Captain Marvel, and she’s replaced, whether by a new one or an old one? The cycle will repeat itself. Marvel will continue to struggle commercially with character even if they singlehandedly own the mark.
Even if Marvel is or would be unwilling to share the trademark, their inability to establish a clear source of the Captain Marvel brand and long-time branding ambiguity makes that irrelevant; as long as DC Comics publishes Captain Marvel, as they currently do even with a main-continuity Shazam in the fold, they’ll still struggle to clear the Captain Marvel brand as they always have whether they share it or not. Sharing it won’t make it even more ambiguous.
It could work as far as branding goes. So that each company can distinguish their own Captain Marvel’s from one another’s, much like how companies attach their brand name to generic terms (such as Kellogg attaching their name to corn flakes; Kellogg’s® Corn Flakes), Marvel could allow DC to put their brand on a Captain Marvel book and call it DC’s Captain Marvel. While ambiguity will still be prevalent by consumers, this still allows both companies to distinguish their goods.
Last but not least…
Sharing the trademark with DC wouldn’t hurt Marvel’s bottom line: While Marvel would be extremely unlikely to consider it unless they could make money from it – and that’s (highly) improbable – they aren’t in any real position to lose money by not sharing the trademark, either. Only lack of current and historical buying consumer demand hurts their bottom line, not trademark branding.
Here’s the one caveat I would add: I think there is tremendous incentive for Marvel to embrace the sharing of the Captain Marvel trademark with DC: the opportunity to make one of the most significant gestures of goodwill to comics fans in the history of the medium.
In fact, doing so has no downside – this action will have no adverse affect on sales of Marvel’s Captain Marvel – the two characters are completely distinct in the minds of buyers – and demonstrates on Marvel’s part a real confidence in Carol Danvers as a character which, of course, is totally deserved.
So, since no shine comes off Carol (as if it could, right?), no damage is done to potential sales of Marvel titles, and sharing the copyright would be a monumental boon to the comic buying community how soon can this get done?
In all seriousness, I’d like to see this idea get some distribution (and, as a result, some traction). If you are willing to share it with others I would appreciate that very much. Also, a quick review on iTunes of Episode 3 would be greatly appreciated as well!
In the most recent episode of the Shazamcast! (about the 44:30 mark) Carl Shinyama proposed that Marvel and DC hold joint ownership of the name Captain Marvel. I’m hoping to post Carl’s notes from the episode soon but, in the meantime, I thought it would be helpful to review the precedent for Carl’s idea: the joint ownership by the Big 2 of the trademark of term super hero.
The best thing I’ve seen as an introduction comes from Brian Cronin, a comic fan and lawyer in New York City called The Superhero Trademark FAQ, published initially on his blog and then updated for CBR. It is worth reading in its entirety and I highly recommend you do so. There is, however, a core section I’m going to excerpt:
Q: What does it mean that Marvel and DC have a trademark on the word “Superhero”?
A: It means that companies cannot enter certain areas of commerce with the word/phrase “superhero” as part of their product name.
Q: What products does this apply to?
A: Publications, but basically comic books and magazines. Also, cardboard stand-up figures, playing cards, paper iron-on transfers, erasers, pencil sharpeners, pencils, notebooks, stamp albums, and costumes
Q: Does this affect our ability to use the word superhero?
A: Only if you want to make a product that fits into those categories and sell it. So, if you want to sell (you can make it for your own personal pleasure) a comic book called “Star Spangled Superhero Stories,” you would not be able to. But if you want to refer to your characters as superheroes within the comic, you can do so. This is what allows DC to refer to their character Captain Marvel as Captain Marvel within the comic, but they cannot use the name Captain Marvel in advertising or as the name of the comic, because Marvel holds a registered trademark of that name.
Q: When did Marvel and DC do this?
A: 1979. They recently re-filed the trademark.
Another interesting aspect: from time to time you see lawsuits filed by smaller entities, not all of them comic creators or publishers, challenging this trademark – see for example the cases of Ray Felix, SUPERHERO DONUTS, SuperHeroCleaners, and a whole slew of companies in the UK. It often appears to be a case of the Big Bad Corporation holding down the little man.
However, according to Cronin, defending every violation of the trademark is required to maintain that trademark:
Q: Can’t Marvel and DC just let some minor companies get away with the use? Does it really matter?
A: One of the problems with trademarks is that companies have to defend the use of the term, or else risk the term being considered generic, and thereby losing the trademark protection. So, if Marvel and DC began letting companies call their comics “Superhero ____,” they would risk a court ruling that the term was no longer associated with only Marvel and DC, and then the term would be declared “generic,” and would no longer be protectable, which was the case for such famous words as cellophane and kerosene, both once product names, but ultimately became known as generic words that any company could use (The most famous example of a company who vigorously defends their trademark is Xerox, who love to insist that you “use a Xerox copy machine to make a copy, not make a xerox!”). Other companies who constantly have to make this distinction include Roller Blade brand in-line skates and Band-Aid brand bandages.
Interesting stuff that also reminds us comics, as an industry, require certain legal protections and opportunity to earn profit in order to keep the stories and characters we love in regular publication.
Look soon for specifics on how the trademark issue comes in to play in the attempt to get modern Captain Marvel stories where the character is named Captain Marvel rather than using the name of the wizard who grants his powers.
Finally: have you listened to the episode or the previous episodes of the Shazamcast!? If not, you can find them HERE. Have you listened to them already? A quick review on iTunes would be greatly appreciated!
Recognize this place?
If so, you probably know who lives there.
Sinestro shows up to make nice with Black Adam, ruler of Khandaq. And that can’t be a good thing, right?
You can check out ComicVine for a more extensive preview and a look at the really cool cover of this issue. You’re going to want to buy it I’m sure so, to help in that endeavor, here’s a way to find your local comic book shop.
On a separate note, look for the next episode of The Shazamcast to go up later today. If you haven’t listened to the previous episodes you can find them HERE. Have you listened to them already? A quick review on iTunes would be greatly appreciated.
Today author Steve Orlando tweeted this:
— Steve Orlando (@thesteveorlando) October 26, 2015
Here’s the premise according to the DC Comics website:
JUSTICE LEAGUE: DARKSEID WAR: SHAZAM! #1
ON SALE 11/11, Price: $3.99 (U.S.)
A boy becomes an army of Gods! No longer does Billy Batson have access to the powers of the Old Gods. Now, he commands the combined might of Highfather, Mantis and other New Gods. But these Gods are not passive. And they will sooner destroy Billy than give up control of their power.
Here’s the [highest res I can find] image from Comic Book resources (and you can find out more about the series of one-shots this issue is a part of on CBR here).
I plan on picking this one up, despite my reservations about the changes to the character, just to let DC know there is a market for the character. Proceed, of course, as you see fit.
If High Father, Mantis, and the New Gods aren’t familar to you here’s an introduction from Chris Sims on Comics Alliance. An excerpt:
Jack Kirby created a series of comic books that were truly mythological in scope. But rather than dealing with the explanations that the rapidly advancing science of the 20th century had made irrelevant, he focused on other, more metaphysical questions: What is the nature of good and evil, and is it possible for one to arise from the other? What does it mean to be free? What does it mean to lose that freedom? Can the horrors of war and violence be justified? These weren’t new questions by any means, but they were the ones people ask that don’t have easy, scientifically provable answers, which is why they persist and inspire stories that explore them.
You’ve probably heard by now that Captain Marvel is apparently getting an update to his New 52 look. I’ve went digging on the interwebs to find the highest resolution picture I can find for the Shazamcast audience to scrutinize to its heart’s content.
The shot comes from the solicitation for Justice League #48 (January 2016).
(Click for Larger Version)
Here’s Cap highlighted:
So, what do you think?
Update: Courtesy of io9 (blue language warning on the link) we have not just Captain Marvel’s new look for Darkseid War but also something of an idea about his new role:
Superman, the new God of Strength, beats the ever-loving crap out of Lex Luthor, just because he can—and leaves him bloodied and near-death on Apokolips, Darkseid’s former domain. Shazam, for seemingly little reason, gets turned into the God of Gods, which I’m not even a sure is an actual thing. But hey, it’s not like the rest of this issue is anything but full on craziness.
So there’s that.
Do you reddit?
If so, you know how dismal this screenshot is:
Old posts on the main page. No banner modification. The front page of nothing but Neglected.
That sad-sack subreddit is the one dedicated to Earth’s Mightiest Mortal and, if you are a Cap fan, I think you will agree with me in saying it is far beneath the character’s worth.
I mean, compare it to Spiderman’s:
Now, of course, Captain Marvel is no where as popular as Spidey. Nonetheless, check out that cool banner and custom icons. Look particularly at those recent post dates.
Those are the fruits of a healthy subreddit.
That isn’t a worthy goal in-and-of itself. However, considering reddit’s popularity – particularly among younger users of the web – it seems like an underused utility when it comes to helping new fans find the character and his stories.
So this post counts as a casual appeal: when you find Captain Marvel content on the web – whatever it is – would you consider posting it on /r/Shazam?
If you feel like writing something about Captain Marvel for the web would you consider reddit as your forum (if you don’t have a blog or some other means of publishing the content), i.e. would you consider writing it up on /r/Shazam?
I’m not asking for the posting of Shazamcast content; it seems that community doesn’t much care for links from here. However, raising Cap’s public profile will take efforts on several fronts and, being a central aim of The Shazamcast, reddit seems like a good place to make an effort.
Either way, thanks for taking the time to read!
Listen to the episode here.
1. Super Creepy, Right?
3. Theological Overtones
4. These Guys Related or Does Advanced Age Bring Appearance Uniformity?
5. Yeah, Morris, Because IT IS RIDICULOUS!
41 years ago today Otto Binder died in Chestertown, New York at the age of 63.
In his lengthy and varied career as a writer he was responsible not only for a large volume of early Captain Marvel stories but also co-created (mostly with artist CC Beck) what amounts to the distinctive Captain Marvel mythology – Mary Marvel, Tawky Tawny, Black Adam, Mister Mind, The Monster Society of Evil, Ibac, King Kull, Mister Atom, and even Dr Sivana’s two evil children, Georgia and Thaddeus Jr.
In one of the greatest examples of irony in comicdom, after Captain Marvel was legally shut down because of his similarity to Superman, Binder went on to develop the Superman mythology in a way highly similar to his work on Cap.
It is thus no wonder that Comics Alliance’s Benito Cereno has placed Binder’s name among the greatest creators of the Golden and Silver ages of comics like Jack Kirby, Will Eisner, Bill Finger, and Jerry Siegel – as well as identifying Binder as perhaps comics’ most underrated creator.
You can remember Binder today by reading his first Captain Marvel story in Captain Marvel Adventures #9 titled “Captain Marvel Saves the King.” You can find the issue on Comic Book + and The Digital Comic Museum.
Thanks for all the great stories Otto!
This gorgeous piece comes from issue #5 of Ross’ 2005 Justice series which you can learn more about here and purchase here. If you, like so many others, find Ross’ work engrossing you are in for a treat: TwoMorrows Publishing has an extensive write up (based in part on an interview with the artist himself) about Ross’ work on Captain Marvel and his family.
Plaing off that article, I’m curious what readers/listeners of The Shazamcast would say is the greatest Captain Marvel story thus far.
Thus, in the poll below, you will find Cereno’s choices alongside a few of my own (my site, my poll, right?) plus the opportunity for you to submit your own choice (be sure and leave the issue number and title along with why you love the story in the comments).
Start off by reading Cereno’s article then scroll down past the poll for descriptions of the story lines I added (if they aren’t familiar).
So let’s have it: what is the best Captain Marvel story of all time?
(1970s) Make Way for Captain Thunder
(2000s) Shazam! The Power of Hope