Poisoned Chalice Part 1: From the Start of Superman to the End of Captain Marvel

[Previous chapters: Introduction

Superman, co-created by writer Jerry Siegel and artist Joe Shuster, first appeared in Action Comics #1 in June 1938, published by Detective Comics Inc, a fore-runner of National Periodical Publications and DC Comics. Virtually overnight it became a huge seller, and is running to this day, with uninterrupted publication for well over seventy years. A vast amount has been written over the years on the history of Superman, and by people substantially more qualified than I, but one claim, that Superman was based on the character of Hugo Danner, from Philip Wylie’s novel Gladiator, (Alfred A. Knopf, New York, 1930), has some relevance to the larger story of Marvelman and, although I decided that it might be too far back to start this series of articles, if you’re interested in reading what I have to say about it, you should go read this article, and then meet us back here.



The comic book superhero was born on the day that Superman made his first appearance and, for good or ill, the world of comics has never been the same again. The American comic book industry was still only in its infancy in 1938, mind you, with the first American comic we would recognise as such, Eastern Color Printing’s 36-page Famous Funnies: A Carnival of Comics, only appearing in 1933, a mere five years beforehand. Superman was co-created in 1932 by writer Jerry Siegel and artist Joe Shuster, two young men from Cleveland, Ohio, and there were a few earlier versions of the character before they settled on the costumed version we now all know. Published by Detective Comics Inc. of New York (who would merge with National Allied Publications to become National Comics, then National Periodical Publications, and eventually DC Comics, henceforth and hereafter referred to as DC, regardless of which incarnation of the company it is), Action Comics #1 launched what is known as the Golden Age of Comics, and became a huge seller virtually overnight. The story of Superman is well known: an orphan baby called Kal-El is sent to Earth by his parents to escape the destruction of the planet Krypton, and is adopted by the Kent family, who name him Clark, under which name he eventually ends up working as a reporter for the Daily Planet newspaper, whilst secretly donning his brightly coloured superhero costume to fight crime. Superman is a genuine American icon, in a time when that word is vastly overused, and whatever the influences on them might have been, Siegel and Shuster had created something completely new – and something that people wanted, at that. Sales figures for those early issues are not readily to hand, but one report says that combined sales of three Superman titles – Action Comics, Superman, and Superman Quarterly – were in excess of one and a half million copies, presumably monthly, by 1942. And, perhaps inevitably, imitations followed.

The first imitation of Superman to appear was Fox Feature Syndicate’s Wonder Man, created by Will Eisner of Eisner-Iger Studios under Victor S Fox’s specific instructions to manufacture a copy of Superman. Wonder Man’s debut was in Wonder Comics #1 in May 1939, just under a year after Action Comics #1. There was no second appearance of Wonder Man, although Eisner had finished work on a second story, as DC had served Fox with an immediate injunction. The subsequent case, Detective Comics, Inc. v. Bruns Publications, Inc., initially heard on April 29, 1940, was won by DC, despite Eisner claiming that that he had, entirely out of his own imagination, and without any prompting from Victor Fox, created the character of Wonder Man in January of 1938, a number of months before Superman first appeared in Action Comics #1, and actually presenting what he claimed was this illustration to the court, although he would later tell a very different version of the story, which cast him in a much more sympathetic light, in his autobiographical graphic novel The Dreamer (Kitchen Sink Press, 1986). There’s a fascinating article about Eisner and his testimony by Ken Quattro here, which I commend to you all.

According to Greg Sadowski’s notes on page 188 of Supermen! The First Wave of Comic Book Heroes 1936 – 1941 (Fantagraphics Books, Seattle, 2009),

In early 1939, entrepreneur Victor Fox started a new comic book company, Fox Publications, in the same Lexington Avenue building as DC, only with a bigger office. In no uncertain terms, Fox told packagers Eisner & Iger to invent him another Superman. Eisner whipped up Wonder Man, giving him more or less identical powers. The hero appeared that March as the cover story of Fox’s inaugural title, Wonder Comics (May 1939), but DC started copyright infringement proceedings as soon as it hit the stands, and on April 16 the courts awarded a permanent injunction that prevented any further appearances.

Sadowski also quotes from an interview between Gary Groth and Jack Kirby in The Comics Journal #134 (Fantagraphics Books, Seattle, February 1990), where Kirby says,

Victor Fox was a character. He’d look up at the ceiling with a big cigar, this little fellow, very broad, going back and forth with his hands behind him saying, ‘I’m the king of comics! I’m the king of comics!’

The case was heard in the United States Court of Appeals for the Second Circuit on April 29 1940, by a trio of judges headed by Judge Augustus Noble Hand, who was joined by his cousin, Judge Billings Learned Hand. Remember that name, as we shall see more of him later.

The final judgement included this,

We have compared the alleged infringing magazine of Bruns with the issues of Action Comics and are satisfied that the finding that Bruns copied the pictures in the complainant’s periodical is amply substantiated. Each publication portrays a man of miraculous strength and speed, called Superman in Action Comics and Wonder Man in the magazine of Bruns. The attributes and antics of Superman and Wonder Man are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stands revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that Superman wears a blue uniform and Wonder Man a red one. Each is termed the champion of the oppressed. Each is shown running toward a full moon off into the night, and each is shown crushing a gun in his powerful hands. Superman is pictured as stopping a bullet with his person and Wonder Man as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him. Superman is shown as leaping over a twenty storey building, and Wonder Man as leaping from building to building. Superman and Wonder Man are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against evil and injustice. Defendants attempt to avoid the copyright by the old argument that various attributes of Superman find prototypes or analogues among the heroes of literature and mythology. But if the author of Superman has portrayed a comic Hercules, yet if his production involves more than the presentation of a general type he may copyright it and say of it: A poor thing but mine own. Perhaps the periodicals of the complainant are foolish rather than comic, but they embody an original arrangement of incidents and a pictorial and literary form which preclude the contention that Bruns was not copying the antics of Superman portrayed in Action Comics. We think it plain that the defendants have used more than general types and ideas and have appropriated the pictorial and literary details embodied in the complainant’s copyrights.

What is particularly significant about this case is, firstly, that it was the first copyright lawsuit in comic book history, and also that it shows right from the beginning that Superman’s corporate owners were prepared to aggressively protect their copyrighted characters, and to pursue any infringement through the courts. Later on, this case would also be used as precedent for other cases involving comics, and in particular for one that is central to the story of Marvelman.

Undaunted by his defeat, Victor Fox went on to produce comics featuring the characters The Bird Man, Jo-Jo the Congo King, and Junior, copies of, respectively, Hawkman, Tarzan, and Archie, along with others. It all caught up with him in the end, and he went bankrupt in 1950. There were other Superman imitations, and other court cases. Master Man, who appeared in Fawcett Comics’ Master Comics #1 to #6, first appearing in March 1940, actually went down without a fight, as simply the threat of litigation caused them to retire the character permanently, probably due to the result of the Wonder Man case, although his name will reappear, much later on.

And then, of course, there was Captain Marvel.

Captain Marvel was created by writer Bill Parker and artist Clarence Charles ‘CC’ Beck at the request of Roscoe Kent Fawcett of Fawcett Publications, who is quoted on the Captain Marvel Wikipedia page as saying,

I was responsible, I feel, for Captain Marvel. I got us into the comic book business. I said, ‘Give me a Superman, only have his other identity be a ten or twelve-year-old boy rather than a man.’

Captain Marvel first appeared in Fawcett Comics’ Whiz Comics #2, cover-dated February 1940. Like Superman before him, Captain Marvel was an immediate success, with sales of Whiz Comics #2 reportedly hitting around half a million copies, with even higher circulation figures to follow. An earlier version of Captain Marvel, Captain Thunder, had been tried out in Fawcett Comics’ first venture, a test print or ‘ashcan’ edition to help secure advertising that came out as two different titles with identical contents, Flash Comics #1 and Thrill Comics #1, although these only ran to one trial edition each in the autumn of 1939. Fawcett found that DC had published Flash Comics #1 in January 1940; that Standard Comics had published Thrilling Comics #1 (starring Doc Strange, who would be revived by Alan Moore as Tom Strange in ABC’s Tom Strong #11 in December 2000) in February 1940, meaning that Thrill Comics was no longer a viable name; and that there was also another Captain Thunder, a Captain Terry Thunder of the British Army, who debuted in Fiction House’s Jungle Comics #1 in January 1940; so they used the name Whiz Comics, taken from Captain Billy’s Whiz Bang, a bawdy humour title which was the first publication in October 1919 of Fawcett Comics’ parent company, Fawcett Publications, and which itself took its name in part from Wilford H. ‘Captain Billy’ Fawcett, who founded Fawcett Publications. The name Captain Marvellous was suggested as a replacement for Captain Thunder by Fawcett artist Pete Costanza, before being finally shortened to Captain Marvel. The numbering of Whiz Comics began at #2, following on from those earlier trial comics, which can be seen as two different versions of Whiz Comics #1, if you like.

There were certainly similarities between Superman and Captain Marvel, but there were differences as well. Both had tight brightly coloured costumes with cloaks, were super-strong, extremely fast, and invulnerable to bullets, and both had a news reporter of one kind or another as their alter ego. Even the cover of Whiz Comics #2 seemed to be closely based on the cover of Action Comics #1, with both showing their respective superheroes lifting and throwing cars.

On the other hand, while Superman’s powers were science-based, coming from the fact that he was a Kryptonian on Earth, Captain Marvel’s powers were magic-based, with orphan newsboy Billy Batson being granted his abilities by the wizard Shazam. Clark Kent, Superman’s alter ego, was an adult reporter working for the Daily Planet newspaper, but Billy Batson was a child, working as a radio reporter for the WHIZ radio station. Also, while Clark Kent and Superman were the same person, separated only by a quick costume change, Billy Batson and Captain Marvel were actually two different people, with Batson being replaced by Marvel when he spoke the word SHAZAM! And if Captain Marvel was borrowing from Superman, then Superman was certainly borrowing from Captain Marvel as well. Superman originally only jumped great distances, but he developed the ability to fly soon after Captain Marvel, who could fly from the start, appeared. Sometimes DC were quite slow to follow Fawcett’s lead: while Captain Marvel was joined by his teenaged companion Captain Marvel Jr in#25 in December 1941, DC’s version of the super-powered teenager, Superboy, didn’t appear until#101 in early 1945, and while Mary Marvel, whose alter ego was Billy Batson’s long-lost twin sister Mary Bromfield, first appeared in#18 in December 1942, Supergirl, actually Superman’s cousin Kara Zor-El, didn’t appear until#252 in May 1959.

The differences between Superman and Captain Marvel would be enough to distinguish between the two characters today, in a marketplace with thousands of super-powered characters, but in the early 1940s, despite the differences between them, there was really only one superhero in comics, and it seemed obvious at that time that Captain Marvel was definitely based on Superman by the simple fact of his being a super-powered hero character. DC certainly thought that their character was being copied, and issued Fawcett with a Cease and Desist letter in June 1941, just about a year and a half after Captain Marvel first appeared. When this was ignored, they filed legal action against Fawcett for copyright infringement on September 5th, 1941. And then, as is often the case with legal matters, nothing happened for a very long time. At least, nothing of a legal nature happened for a long time. While all parties were waiting for the trial to begin Captain Marvel continued to be a huge success, with several new titles appearing featuring himself and his companions, including Captain Marvel Adventures, Captain Marvel Jr. Comics, Mary Marvel Comics, and The Marvel Family, along with other comics like America’s Greatest Comics, Master Comics, Wow Comics, and of course Whiz Comics, also running stories featuring them. Captain Marvel even eclipsed his predecessor – at one point Captain Marvel Adventures was being published weekly, with reported circulation figures of in excess of one and a quarter million copies an issue, none of which can have made the powers-that-be at DC any happier, I imagine.

There was even a parody of the rivalry between the two companies and their characters in Mad magazine. Harvey Kurtzman and Wally Wood’s Superduperman in Mad #4 (EC Comics, April-May, 1953) pitted Superduperman against Captain Marbles, which ended with Captain Marbles punching himself in the face after being tricked by Superduperman, which may or may not have been a comment on the trial result. Superduperman will turn up again, quite a bit further on, where he plays a pivotal role in the story of Marvelman.

Eventually, however, after seven years of who-knows-what on the part of the legal teams involved, the National Comics Publications v. Fawcett Publications et al case went to court before Judge Alfred Conkling Coxe Jr in March 1948. DC argued that Captain Marvel was a direct copy of Superman, while Fawcett argued that there were actually many differences between the two characters, and that Captain Marvel was a distinct and separate character in his own right. Some of Fawcett’s employees testified that they were ordered to imitate Superman, although others denied this, and even stated they were told not to so much as look at the Superman stories, in case of accidental influence. Unsurprisingly, at the end of the trial on April 10th, 1950, the judge agreed with DC. The summing up includes this:

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 colour 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 marvellous 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. 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 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.

And that should have been that, but it wasn’t. Despite agreeing with DC that Captain Marvel was a direct copy of Superman, the judge actually awarded the case in favour of Fawcett, and against DC.

In 1939 DC had licensed the rights to produce a Superman newspaper strip to the McClure Syndicate, who reprinted existing material, but also had new material produced (by Jerry Siegel and Joe Shuster, the original creators of Superman, incidentally), which they owned the rights to, but which reverted to DC after six months. The strip started on January 16th, 1939, and would run until 1966. What Fawcett’s legal team managed to uncover in the seven years leading up to the actual trial was the fact that a lot of the newspaper strips had been produced with copyright notices either incorrectly attached to them, or totally absent. The trial judge held that, due to the complex nature of their agreement, DC and McClure had actually become business partners in a joint venture, with each party liable for the actions of the other, and that a failure on the part of McClure to affix copyright to the newspaper strips caused DC to have abandoned their copyright on Superman. Therefore DC couldn’t seek to enforce that copyright in a court of law, causing the judge to decide that, even though he felt that Fawcett had actually copied Superman, they didn’t have a case to answer in law – if there was no copyright, there could be no copyright infringement.

Needless to say, DC appealed. The appeal was heard on May 4th 1951, in the United States Court of Appeals for the Second Circuit, and the judge in charge was Judge Billings Learned Hand, whom you may recall from the Wonder Man trial in 1939. In his judgement, dated August 30th 1951, Judge Hand chose to disagree with the lower court, holding that someone could not accidentally abandon their copyright. He says,

We do not doubt that the author or proprietor of any work made the subject of copyright by the Copyright Law may abandon his literary property in the work before he has published it, or his copyright in it after he has done so; but he must abandon it by some overt act which manifests his purpose to surrender his rights in the work, and to allow the public to copy it. There was no evidence in this case of any such an intent on the part either of Detective or McClure; indeed, although McClure’s negligent omissions may have invalidated many of the copyrights in suit, the very fact that it continuously attempted to publish strips with some sort of copyright notice affixed, however imperfect that may have been, is conclusive evidence that it wished to claim a copyright upon them.

He further found that, although McClure had failed to copyright their particular Superman strips, this could not have the effect of forcing DC to no longer hold copyright on the character. He dismissed DC’s claim that Fawcett were unfair competition, too, with a brief and uncharacteristic outburst about what he perceived as the foolishness of the matter in hand towards the end:

The claim for unfair competition is equally baseless. In the first place Fawcett’s magazines bore its name which had no resemblance to Detective’s, and there was no reasonable ground for supposing that readers would mistake one for the other. But the misapprehension goes much deeper. The owner’s right to protect his name or mark from being copied depends primarily upon the likelihood that those who may wish to deal with him will be misled into dealing with the infringer; and that presupposes, not only that the mark has become associated with the owner as the source of the goods, but that this association is an inducement to deal with the owner. In the case of these silly pictures nobody cares who is the producer; least of all, children who are the chief readers; the strips sell because they amuse and please, and they amuse and please because they are what they are, not because they come from Detective.

However, he finds in favour of DC in their claim that Fawcett copied their work:

The evidence […] leaves no possible doubt that the copying was deliberate; indeed it takes scarcely more than a glance at corresponding strips of Superman and Captain Marvel to assure the observer that the plagiarism was deliberate and unabashed.

His final judgement, therefore, was this:

Judgment reversed; and cause remanded for further proceedings consistent with the foregoing opinion.

The following year, on September 5th, 1952, Judge Hand issued a clarification of his findings:

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 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. 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.

Commenting on the case in an article called When Titans Clash… In Court! in Amazing World of DC Comics # 17 (National Periodical Publications, April 1978), Michael Uslan summed up the judgement like this,

In other words, DC had to go through every Superman story published through 1952 and find panels or whole stories that show Superman doing or saying something that Captain Marvel later seemed to copy. To do this, DC then had to go through every Captain Marvel story ever published and find all offending panels and stories. Fawcett then had to go through every Captain Marvel story and try to find an earlier picture of Captain Marvel doing what Superman did. […] Numerous huge scrapbooks were prepared by each side at huge costs of time and money. Whole staffs of researchers had to be hired, old comics – literally thousands of them – had to be bought and cut up and pasted into the scrapbooks. Lawyers had to inspect each one and their fees grew larger and larger.

And that, finally, was that. Fawcett hadn’t previously appealed Judge Coxe’s original finding that Captain Marvel was a copy of Superman, and it was now too late for them to do so. By 1952 Superman had been around for fourteen years, and Captain Marvel for twelve years, so there was already a huge body of work on both sides, amounting to many hundreds of comics between them – the Fawcett titles alone came to 750 different comics, between the eight titles various members of the Marvel Family had featured in – for their respective legal teams to pick over and compare, and the cost of doing so would be enormous for both sides, and particularly for Fawcett, presumably, as they would probably have come out the worst from all this, and might well have had to bear the legal fees for both themselves and DC. Added to that was the fact that times were tough for superheroes, with DC’s Showcase #4 and the dawn of comics’ Silver Age in October 1956 still a few years away. Comic sales were down quite considerably from their earlier figures in the mid 1940s, and looked like they were going to continue to fall. Captain Marvel Adventures had been the bestselling comic during World War II, but its sales had declined every year from 1945 onwards, and by 1949 it was only selling half as much as it had during the war years. And public opinion was turning against comics in general. The United States Senate Subcommittee on Juvenile Delinquency hearings, which largely focussed on horror comics, admittedly, would take place in 1953, to be followed by Fredric Wertham’s Seduction of the Innocent (Rinehart and Company, New York) in 1954. Things just weren’t the same as when Fawcett had started, back in 1940.

Faced with what seemed like an uncertain future for Captain Marvel, and with the possibility of huge legal fees on top of whatever they might have awarded against them if they went to court, Fawcett decided that retreat was the better part of valour, and settled the case with DC out of court. The settlement was apparently for $400,000, as well as an undertaking from Fawcett never to publish any of the Captain Marvel characters again. One can only imagine what sort of amount Fawcett must have felt they were likely to end up paying out if a sum of $400,000 seemed like a good settlement figure. Slowly but surely they wound up their Marvel titles; Whiz Comics ended with issue #146 in June 1952, Captain Marvel Adventures ended with #150 in November 1953, and The Marvel Family ended with #89 in January 1954. So convinced were Fawcett that comics were in a terminal decline that as well as ceasing to publish any Captain Marvel related titles, the Fawcett parent company decided to close down their entire comics division soon afterwards, which they did in the autumn of 1953, probably as soon as the last issues abovementioned were put to bed. They laid off their staff, and sold off most of their characters to Charlton Comics. These even included one Captain Marvel related character, Hoppy the Marvel Bunny, whom Charlton renamed as Hoppy the Magic Bunny, just to be safe.

After a twelve-year career, some of it as America’s favourite and bestselling comic character, Fawcett’s Captain Marvel was no more. It wasn’t only in America that Captain Marvel was popular, however, and his demise in America left one British publisher, L Miller and Son Ltd of Hackney, London, with a problem on their hands.

To Be Continued…

(If you’re looking for them, you’ll find bigger copies of all the images in this post here.)

Pádraig Ó Méalóid is a middle-aged Irishman. He has written for Fractal Matter, The Alien Online and Emerald City, all of which are now defunct. He has done a lot of interviews for the Forbidden Planet International blog, which is still thriving, thank you very much. He has been fascinated with the story of Marvelman for a very long time, and has blogged about various bits of this story here over the past few years. He has even written a book about it, called Poisoned Chalice, which is currently looking for a publisher, and which is being serialised here, in an abbreviated form. He is very happy to be writing for The Beat, which he considers to be the best site of its kind on the ‘net, hands down.