Monday, May 9, 2016

Comics Startup 101 - The Beginning

Comics Startup 101: Legal and Business Tips for the Independent Comics Creator
Part I - A Clearance Search

            Congratulations! If you are reading this, then you have an idea for a comic and want to create it yourself. This series of posts grew out my Comics Startup 101 panel I presented at various comic book conventions in the Midwest with comics creators. Hopefully, you will find what follows to be a helpful guide when proceeding down the path of creating your own comic.
However, I must disclaim that this is not meant to be an in-depth guide, nor is it meant to be complete legal advice. Any information provided in these posts is general in nature and should not be relied upon as legal advice. Meaningful legal advice cannot be given without a full understanding of all relevant facts relating to an individual’s situation. As such, you should consult with an attorney for specific legal advice that you might need.
This leads me to one of the best pieces of advice that I can give you: develop a great support team you can trust to help you on your journey. I recommend this to any small business owner, which you are about to become. Your support team should consist of at least these three people: a mentor or advisor, an accountant, and an attorney. Now, let’s take your idea for a comic and start at the beginning.
The Beginning – A Clearance Search
            You have an idea for a comic book. What’s next? One of the first things you should do is conduct a clearance search. By conducting a clearance search you will make sure that no one else is making a comic with the same title, a similarly-named character, or a character that is too closely related by way of powers, origins, background, etc. Doing this simple step early could save you a lot of trouble and money later on. It also allows you to distinguish your creation from other characters and, if used properly, gives you the ability to create something unique.
            For an example of why doing a clearance search is a good idea, let’s look to Fawcett Publications and their Captain Marvel character. Captain Marvel was a character originally created by Fawcett Publications[1] shortly after Superman was created. Many of you now know the character as Shazam.[2] National Comics Publications, previously known as Detective Comics, Inc., believed that Captain Marvel infringed on their Superman copyrights.[3] After a twelve year legal battle, the Second Circuit Appeals Court found that National Comics had valid copyrights in Superman[4] and that Fawcett’s Captain Marvel infringed upon them.[5] While there was evidence presented at trial that Fawcett intentionally copied elements of Superman,[6] I believe that this case would be decided differently today. These characters share similar traits, but their origin stories differ significantly.[7] In the end, Fawcett agreed to settle and ceased printing Captain Marvel comics.[8] Eventually, DC Comics acquired the rights to Captain Marvel and started using the character in its own universe.[9] Further muddying the waters, during the time Fawcett ceased publishing Captain Marvel, Marvel Comics acquired the trademark rights to Captain Marvel as a publication name.[10]
            To conduct a comprehensive, in-depth clearance search will cost you a few hundred dollars upwards to a few thousand. There are services out there that will conduct searches of registered trademarks, domains, business entities, general internet searches, and more for you. Most of these will uncover possible trademark conflicts. It is a bit harder to do a copyright search. However, if a copyrighted work is commercially exploited, you should be able to discover it by using similar methods. While it is highly recommended that you conduct a comprehensive clearance search, if you want to conduct an initial search on your own to gauge potential risk, I would recommend the following steps:
1)      searching the United States Patent and Trademark Office (“USPTO”) trademark search database for your character’s name or book’s title,
2)      searching the U.S. Copyright Office database for your character’s name or book’s title,
3)      conduct a WHOIS search for domain names using your character’s name or book’s title, and
4)      run a few internet searches for your character’s name, book’s title, and a description of your character, plot, etc.
These searches are not guaranteed to uncover every potential risk, but it will give you an idea of whether something else is out there. If you are comfortable with what you’ve uncovered, then you may proceed at your own risk. Otherwise, if you are not comfortable with what you’ve found, you may want to consult with an attorney.
Next week: Business entity choices.

[1] National Comics Publications, Inc. v. Fawcett Publications, 93 F.Supp.349, 354 (S.D.N.Y. 1950).
[2] Exclusive: Geoff Johns Hopes Lightning Strikes Shazam!, Vaneta Rogers,, Jan. 26, 2012, (last visited May 09, 2016).
[3] National Comics Publications, Inc., 93 F.Supp.352 (S.D.N.Y. 1950).
[4] National Comics Publications, Inc. v. Fawcett Publications, Inc. et. al., 191 F.2d 594, 598 (2nd 1951).
[5] Id. at 597.
[6] Id.
[7] National Comics Publications, Inc., 93 F.Supp 355-56 (S.D.N.Y. 1950).
[8] Lage, Matt (2001). "Visual Expression: Will Lieberson - Fawcett Comics Executive Editor". In Hamerlinck, P.C., Fawcett Companion: The Best of FCA (1st ed.). TwoMorrows Publishing. pp. 94–95.
[9] Buxton, Mark, The Rich History of Captain Mar...Er, Shazam!, Comic Book Resources, Aug. 29, 2014, (last visited May 09, 2016).
[10] Id.; see also Trad. Reg. No. 0976419, Registration Date Jan. 8, 1974.

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