Monday, July 25, 2016

Comics Startup 101 - The Infringement of Others' Intellectual Property - Part III, Copyright

Comics Startup 101: Legal and Business Tips for the Independent Comics Creator
Part 9: The Infringement of Others' Intellectual Property - Part III, Copyright

           This post is part of a series that grew out of my Comics Startup 101 panel I presented with comics creators at various comic book conventions around the Midwest. You can find the first post discussing doing a clearance search here, the second post discussing choosing a business entity here, the third post discussing contracts (part I) here, the fourth post discussing contracts (part II) here, the fifth post discussing an overview of intellectual property here, the sixth post discussing ways to protect your intellectual property here, the seventh post discussing infringement of the right of publicity here, and the eighth post discussing the infringement of another's trademark rights here. Today, we'll discuss copyright infringement lawsuits involving Superman.
           As always, 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.

The Infringement of Others’ Intellectual Property – Part III, Copyright
In the last two posts, we discussed DC being sued for right of publicity and trademarkinfringement. The final set of cases we’ll discuss in the Comics Startup 101 series also involve DC Comics. However, this time they are the ones doing the suing.
The first case is a precursor to the Captain Marvel case I discussed previously. In Detective Comics, Inc. v. Bruns Publications, Inc., et al., DC sued Bruns because it believed its Wonder Man character infringed on DC’s Superman copyrights.[1]  The court found that Wonder Man did infringe on DC’s copyrights due to the fact they are both “a man of miraculous strength and speed[,]” the “antics” of both characters are “closely similar[,]”  each hides their identity “beneath ordinary clothing” and when removed stands in “skintight acrobatic costume[,]” each is shown crushing a gun in his hand, each is “termed the champion of the oppressed[,]”  each is pictured stopping bullets, each are “endowed with sufficient strength to rip open a steel door[,]” and “[e]ach is described as being the strongest man in the world and each as battling against ‘evil and injustice.’”[2] Of particular note in this case is the court’s statement that even though Superman might be derivative of a Hercules, or other “heroes of literature and mythology[,]” since the Superman comics “embody an original arrangement of incidents and a pictorial and literary form” they are subject to copyright protection.[3] The court stated, “So far as the pictorial representations and verbal descriptions of ‘Superman’ are not a mere delineation of a benevolent Hercules, but embody an arrangement of incidents and literary expressions original with the author, they are proper subjects of copyright and susceptible of infringement because of the monopoly afforded by the act.”[4]  After winning this case and establishing their copyright interests in protecting Superman, and proving that a comic book character can be subject to copyright protection, DC initiated the lawsuit against Fawcett over Captain Marvel.
After their two successful attempts protecting their Superman copyrights in the ’40s and ’50s, DC tried again to sue under this theory in the ’80s. They believed the television show The Greatest American Hero infringed on their copyrights to Superman.[5] Part of what appears to have prompted the dispute was that after the success of Superman: The Movie, ABC sought to license Superboy for a television series.[6] After failing to secure a license, ABC created a television series about a normal guy who becomes a superhero.[7] The television series “contain[ed] several visual effects and lines that inevitably call Superman to mind, sometimes by way of brief imitation, sometimes by mention of Superman or another character from the Superman works, and sometimes by humorous parodying or ironic twisting of well-known Superman phrases.”[8] The character also had powers similar to Superman’s.[9] However, the court found that the lead character in The Greatest American Hero did not infringe DC’s right to Superman because the way he looks and acts “marks him as a different, non-infringing character who simply has some of the superhuman traits popularized by the Superman character and now widely shared within the superhero genre.”[10]
Our lesson from the Wonder Man and The Greatest American Hero cases: any similarities to an existing character could leave you susceptible to an infringement lawsuit. Personally, I believe that over the years courts have become more adept at analyzing the differences and similarities between characters in a way that promotes creation, which partially explains the different outcomes DC obtained in the Wonder Man and Captain Marvel cases and the result in The Greatest American Hero case.
The end?
This post brings to an end my initial series of Comics Startup 101 posts. I hope you enjoyed reading them as much I enjoyed writing them. Fear not, there will still be plenty of useful posts in the future dealing with similar topics.   
Do not let anything contained in these posts frighten you from making your works. The intent is not to frighten you, but to educate you about possible problems that could arise. None of the things we discussed should scare you away from making the comic book you want to make. Even though I barely scratched the surface of the issues you will need to be aware of as you start your business, I believe I have given you a great base of knowledge with which to proceed forward.
As you start your career making comics, keep in mind the topics and lessons we discussed. If you choose to start another type of business, the lessons learned here should still prove useful. These issues are universal to most businesses, and understanding them and learning from them will help keep you and your business out of trouble.

[1] Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432, 433 (2nd Cir. 1940).
[2] Id.
[3] Id.
[4] Id. at 433-34.
[5] Warner Bros., Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, 238 (2nd Cir. 1983).
[6] Id. at 236.
[7] Id.
[8] Id. at 237.
[10] Id. at 243.

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