Copyright Retention

Heh. I have heard people comment in passing about certain characters only appearing in a given issue because Marvel needed to prove they were still around. The one example I can provide is a Generation X story where a character meant to be Ulysses (from the Incredible Hulk) wound up being Howard the Duck.

Could someone who really understands copyright law prove or disprove this

Bingo. This is why all comics have the little fine print statement (or, at least, they used to) that all characters contained therein, and their distinctive likenesses, are trademarks of the company in question.

Not entirely true. According to the US Patent & Trademark Office (the government agency with which all trademarks have to be registered), '(r)ights in a federally-registered trademark can last indefinitely if THE OWNER CONTINUES TO USE THE MARK ON OR IN CONNECTION WITH THE GOODS AND/OR SERVICES IN THE REGISTRATION and files all necessary documentation in the USPTO at the appropriate times.' (capitalization's mine) In other words, you have to both pay for it and use it to keep it.

It just isn't so. Characters can be protected by copyright. Even without going into anything controversial, it is certainly the case that individual drawings of the characters in a comic book are protectable by copyright.

The likenesses of the characters are also trademarks.

Trademarks don't have to be registered at all.

In addition to common law (unregistered) trademarks, trademarks can also be registered at both the state and the federal level.

The fee is not annual either. I don't recall the exact periodicity, but it's somewhere between 6 and 10 years.

Why do people pretend to know this stuff?

Yes, although that's not the way the legal jargon puts it. Part of the copyright is control over derivitive works. A work featuring a character is derivitive of the other work in which the character was created.

It's not that characters exist as distinct objects in copyright law, but that using material from Story X in Story Y makes story Y derivitive of Story X, and therefore subject to approval from the person who has the right to copy that story, or the 'copyright.'

The complications don't arise until the work is not under copyright, but the trademark still holds. Or the copyright and trademark are in different hands, as in the case of Captain Marvel.

As I understand it. I'm not a lawyer, just someone with an abnormal interest in copyright law.

Dave Doty

I would disagree. The last time I got into this discussion, I pulled out quotes from cases and legal case books stating in unambiguous language that characters were protectable by copyright. I ain't getting wrapped up in that discussion again. The only reasonably authoritative source that I've seen which suggests the opposite is Circular #44 from the Copyright office.

But I didn't really want to go there. My only point here is that the individual pictures of Superman in a comic are protectable by copyright. If you copy one of them without permission, then you have infringed, unless there is some valid defense or excuse that allows the copying. I don't believe that to be the least bit controversial. The statement that the likenesses are trademarked is not evidence to the contrary.

And for that matter, not every likeness of every character in a comic book is a trademark. A trademark is a distinctive mark used to identify the source of a good in commerce. Superman and Jimmy Olsen probably meet that definition, but the picture of some bystander that never appears in another book, is not a trademark.

Without rehashing an old argument again, if you cannot copy the character without creating a derivative work, the difference between saying that the character itself is protectable, and saying that mere usage creates a derivative work is very little in actual practice. There are some subtle consequences, but again, it's a side issue here.

But when copyright scholars and judges say that characters are protectable by copyright, I'm going with their take rather than yours. By any reasonable definition, the vernacular those authorities use is 'legal jargon'

That was my point, that it ends up in the same place either way.

Dave Doty

<< According to the US Patent & Trademark Office (the government agency with which all trademarks have to be registered), '(r)ights in a federally-registered trademark can last indefinitely if THE OWNER CONTINUES TO USE THE MARK ON OR IN CONNECTION WITH THE GOODS AND/OR SERVICES IN THE REGISTRATION and files all necessary documentation in the USPTO at the appropriate times.' (capitalization's mine) In other words, you have to both pay for it and use it to keep it.<<

Which is exactly how Fawcett (and in turn, DC) lost the trademark for CAPTAIN MARVEL. Fawcett stopped publishing CAPTAIN MARVEL in 1953. Thus for over a decade, there was NO use of the CAPTAIN MARVEL trademark anywhere! No comics. No licensed products.

When Marvel introduced Mar-Vell in MARVEL SUPER-HEROES in 1967, there had been ANOTHER Captain Marvel the previous year from a short-lived comics publisher. That Cap was an android who said 'SPLIT' and sent his individual body parts (head, arms. etc.) off in different directions to do different tasks. After that company died, Marvel immediately produced their Cap, and secured trademark. Thus, Marvel can publish a comic called CAPTAIN MARVEL and DC can't. DC's CM-based book is titled SHAZAM! or something with SHAZAM! (which is also trademarked) in the title.

There CAN be two Captain Marvels, since the characters are sufficently-different as to not be confused by the public or considered derivative. But only one can have a book titled after him. (and how many same-named characters are there at various companies?)

In a similar situation, though Marvel's THE AVENGERS is a relative latecomer (1963), it's ongoing use in comics prevented the short-lived 1970s and 1990s DC comic about the pulp hero 'The Avenger' (1939) from being self-titled. (It was called JUSTICE, INC) or a comic about John Steed and his female associates (1961-on) from using their show's title for the comic book (JOHN STEED & MRS. PEEL or STEED & PEEL).