As most people here know, I've been writing an article with Big Bad Voodoo Lou on legal disputes over superhero concepts.
I have promised to post the article here once it is published. The article however presupposes that the reader has a basic knowledge of intellectual property law.
By way of general discussion (and certainly not as legal advice which any of you should rely upon, given I'm not familiar with US laws) I thought I'd give a crash course in copyright.
Some of you are budding writers and artsist and if you're successful in your field then you'll come to know about this stuff sooner or later anyway.
So, what is copyright? Put most simply (and slightly inaccurately) it means "the right to copy". Yes, its all in the name. This means when you bought Marville #1 by Bill Jemas, you had bought the right to read it, loan it, sell it, frame it and put it up on your wall, use it to clean up after your dog's mess on the lawn, or anything else,
except copy it. The sole right to copy the thing resides with Marvel Comics.
There is an English case called Re: Dickens which illustrates this very well. Charles Dickens (who knew a lot aboout copyright) died, leaving an unpublished manuscript in his estate. In his will, Dickens decided to annoy the crap out of his relatives. He bequested all of his immaterial property (including all copyright) to one of his relatives, and all of his material property (furniture, house, manuscript, other thing that can be touched) to another. So one person owned the manuscript, and another person owned the copyright in the manuscript. The unpublished manuscript was worth a fortune, and so the two parties got into a legal fight over it (families can be stupid about such things). The court found that regardless of the fact that one relative owned the physical, in-your-hands manuscript, the other person relative the right to copy it (ie. the right to publish).
So why doesn't Bill Jemas own the right to copy, and not Marvel Comics? He, after all, wrote Marville #1.
The simple answer to that is that he almost certainly assigned all of his rights in Marville #1 to Marvel Comics. That is usually the way things are done in the publishing industry, although we all know about "creator-owned works". This concept simply means that the creator has not assigned over all of his rights to the publisher, and can control it. This is how Jim Lee was able to jump ship from Image to DC. Lee owned the copyright, not Image. Over he went.
The more complicated answer is that even if he had not signed over all of his rights to Marvel Comics, Jemas only owns one aspect of the copyright in the comic. The artist also owns copyright - the copyright in the art, as opposed to the text. With some of the issues of Promethea, where Moore uses photographs of real people, the copyright in the photographs is owned by the photographer. With newspapers, it becomes even more complicated, because you've got separate copyrights in photgraphs, editorial cartoons, the layout of the newspaper... All of the copyright is conceptually stacked over each other like hotcakes. Several different people can own several different types of copyright in a comic, or indeed any type of publication. It all co-exists, quite happily.
Most importantly for people here, how do you infringe someone's copyright? If you come up with a great superhero idea and it looks remarkably like Wolverine, will you get sued? Or what if youo actually use Wolverine in your comic? Is that an infringement? I recall flipping through one issue of the Hulk, years ago, in which Rick Jones was getting married. A character very closely resembling Death of the Endless gave Jones' wife a silver hair brush as a present. How did Marvel get away with that?
Well, the short answer is that they would not have gotten away with it, if they had done soemthing other than show the back of the head of a pale Gothic girl. If Marvel has shown the face of Death of the Endless, in such a way as to be identifiable as her (eg. the make-up and ankh), DC could have happily sued them.
The test is whether an essential element of the material protected by copyright has been taken. All Marvel did was depict an unidentifiable girl who may or may not have been a property owned by DC. Its usually done by a side-by-side comparison, and its all rather subjective.
So, with Liefeld's Fighting American (before he cannily merged Fighting American with Agent: America, which I won't get into here), Liefeld was in big trouble. He has a guy who looked like Cap, wore a similar costume, had a similar sidekick, fought a similar bad guy. There were too many key, essential elements which had been taken. The "flavour" of the character, if you like, was swiped.
Now, some elements of the superhero genre are generic. Capes, masks, flight, undies on the outside, that sort of thing. But if I developed a character who had wings, carried a mace and was the reincarnation of an Egyptian prince, I dare say DC might be quite upset.
If I wrote a story about some guy with a cape, who flies, and has super strength, no one is going to get too bothered by it. If my character is from an alien planet and is powered by sunlight, however, and perhaps has a weakness to radiation from a type of rock, I might be in some trouble.
All of whch begs the question as to how Liefeld and Moore got away with Supreme. Here we have a character who so vastly resembles Superman in a number of key ways that it seems to most people to be clearly an infringement of copyright. And the short answer to that question is, I don't know. I have read commentary which suggests that DC decided not to go after them in court because the elements Moore used for the Supreme character were from the Silver Age Superman, and not currently in use by DC. Perhaps DC has become a little less litigious since the days of hounding Captain Marvel. Who knows. But in my view, it was a clear infringement of copyright in the Superman character concept.
What about fan fic? I know some of you have indulged in this horrific practice before. Its the slimy depths of creative ingenuity, taking a character owned by someone else, without their permission, and writing abut them, in the extremely unlikely hope that an editor of a comic book company will see your stuff and become enamoured of it. I, of course, have done this myself, and believe me it was horrible. The best that can be said for writing fan fiction is that it hones your skills as a writer. But the key question is, will you get sued over it?
As Rob will tell you, DC for its part is only interested in stomping on people who are making a profit from their copyright works. (When I was in Hong Kong, on instructions from DC, I started proceedings against a guy who wanted to register the trade mark "Superman" in Chinese characters, for use on underwear.) If you're not making money from fan fic, then most publishers are unlikley to bother you. This is how Rob gets away with
www.batmanandrob.com If Rob was charging you a lot of money to visit his site, then DC would rake him over the coals. George Lucas is famously tolerant of Star Wars fan fic, but sued someone a few years back for making and commercially selling Stormtrooper armour. (There are some legal resaons for not suing someone not making a profit on character concepts, but they differ from country to country so I won't go into that here).
That's it in a nutshell.
