Marvelman, copyright, DC and the Siegel heirs

"Miracleman: The Silver Age", originally uploaded by The Voice of Eye.

Marvel made comics history today by announcing that it had secured the rights to Mick Anglo's Marvelman, the character that formed the basis of the landmark MiracleMan series that has long been caught in a legal thicket.

I don't have time to write more on this right now, but here are my thoughts in a nutshell:

Fawcett stopped publishing Captain Marvel because the character allegedly infringed on the Superman copyright.

The Marvelman created and owned by Mick Anglo was arguably just a transparent knockoff of Captain Marvel, with a few surface details changed but still a visibly derivative work.

Theoretically, DC could claim that Marvel's Marvelman infringes both the Superman & Captain Marvel copyrights.

For that matter, so could the heirs of Superman's co-creator Jerry Siegel, who now own 50% of the copyright in the Superman material in Action Comics #1.

Just sayin'.

UPDATE:  I've been thinking about this from two perspectives--a viable claim vs. one that would be a lock to win.  As we've seen plenty of times, you don't need the latter to take something off the market.

This has been a rather interesting hypothetical to kick around, especially given the extra complication that the vast majority of Fawcett Captain Marvel comics don't appear to have had their copyright renewed--at least they don't seem to show up in a quick search of Stanford's online renewal database. 

What could that mean?  Well, were a court to conclude that the comics are in the public domain and that Captain Marvel doesn't infringe on Superman, a lawsuit by DC or the Siegels would fail--at least in regard to Superman. 

Things would also get interesting in regard to DC's Captain Marvel properties, whose copyright protection would arguably extend only to new material added to what was in the public domain.  Besides limiting any potential claims re Marvelman, there's also an argument here that DC's reported purchase of the Captain Marvel character from Fawcett is worth as much as, say, licensing Hamlet from the Globe Theater--i.e., nothin'. 

If--and again, I haven't gone to the Copyright Office personally to confirm, so it's a big if--Captain Marvel & the Marvel Family are indeed in the public domain, it's arguably legal for anyone to create derivative works so long as they don't infringe on registered trademarks & viable copyrights owned by DC & Marvel.

On the other hand, judging on the case record, there is an argument to be made that Captain Marvel infringes on the DC/Siegel Superman copyright, so all the public domain issue may be moot. 

Here's where the estoppel principles applied in the recent Siegel cases could get rather interesting, despite their arcane technicality.  Y'see, back in the original Superman/Captain Marvel lawsuit, the federal appeals court agreed with the district court that Captain Marvel copied Superman material--the question left unresolved was the precise scope of the infringing material.  Were DC to sue over Marvelman--and again, there's no  indication they will; this is just a hypothetical--DC could argue that the core court findings re copying & infringement remain valid.

Submitted for the record, here the key passages from the court opinions:

National v. Fawcett, 198 F.2d 927 (2nd Cir., 1952):

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  [**2]  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, 2 Cir., 111 F.2d 432. 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. Whether the strips so copied were protected by a valid copyright we did not say.

The plaintiff has the burden of proving as to any strip it puts in suit that it was validly copyrighted; but we leave it open whether "Fawcett" has the burden of proving whether any copyright, once proved to have been validly obtained, was later forfeited.

Further than the foregoing we refuse to go.

National v. Fawcett, 93 F.Supp. 349 (SDNY 1950)

It would serve no useful purpose to recite in detail the conflicting testimony, for 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 color 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 marvelous 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.'  [**15]  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  [*356]  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.

The stories depicted in the respective panels are much the same, as, for example, the experiences of both Clark Kent and Billy Batson in applying for jobs as reporters, being turned down, and finally being accepted as the result of having performed the [**16]  same superhuman feat. In other instances they are different. For example, there is no romantic element in the 'Captain Marvel' stories, such as Lois Lane, the girl reporter, who is a permanent member of the 'Superman' cast; nor do the 'Superman' stories have an ever-present evil enemy of the hero, like Sivana.