So fundamental to being a fan of DC’s Captain Marvel is the copyright issue I chose that subject as the first post for this website. Really, despite the longevity and commercial appeal of this character, there is no factor more controlling of this character and his stories.

Below you will find Carl Shinyama‘s most thorough review of how Cap came to be in the copyright mess he is in. This comes from his notes on Episode 3 of the Shazamcast! If you listened to that episode – and, I mean, of course you did, right? – you know that Carly also proposed what I believe is the most common sense idea associated with the Captain Marvel character since at least 1953 (see section IV below).

There is one small tweak that I think needs to be added to Carl’s argument and I’ll post it after you read through all the goodness of his write up.

I. The Backstory

This is a subject with a complicated backstory, but necessary to know in order to understand and discuss the Captain Marvel trademark, that is, how Marvel Comics came to own the Captain Marvel trademark despite Captain Marvel originating elsewhere almost thirty years prior.

National Comics Publications (Now DC Comics) sued Fawcett Publications for copyright infringement of their Superman in 1941 under the Copyright Act of 1909. Under today’s copyright laws, the case would have been thrown out.

Before Captain Marvel, National had established a habit of eliminating the competition; they were suing anyone who was publishing Superman-like strongmen for copyright infringement. In fact, in 1940 before the famous Captain Marvel case, National had sued Fawcett for their Master Man character (despite him being published two months after Captain Marvel). Rather than pursuing the matter, Fawcett decided to cease publication of Master Man after just six issues.

However, in the case of Captain Marvel, when National decided to take legal action, Fawcett decided to fight the lawsuit.

The initial trial, which began in 1948, was actually decided in Fawcett’s favor. Despite ruling that Fawcett infringed on National’s Superman copyright, it was decided that National had abandoned their Superman copyright when the McClure syndicate failed to copyright several of their Superman newspaper comic strips, making it no longer a valid copyright.

Unfortunately, in the appeal, the original ruling of the abandoned copyright was reversed.

Fawcett then settled out of court (for a total of $400,000) and agreed to cease publication of all Captain Marvel-related comics in 1953. Captain Marvel would then be out of print for the remainder of the 1950’s and throughout the entirety of the 1960’s.

II. Marvel Comics Steps In

This is all relevant because…

Marvel Comics trademarked the Captain Marvel name in 1967. (October 27th, 1967 to be exact.)

Two months later, they would publish their own Captain Marvel in Marvel Superheroes #12. In May of 1968, Captain Marvel got his own on-going comic series.

What this meant…

When DC Comics licensed the character in 1972, they couldn’t legally published a comic book with the Captain Marvel name in the title (even though they did just that for a little while).

As a result, DC Comics decided to title Captain Marvel’s books as Shazam. Shazam, as we know, is the name of the wizard who gave Billy Batson his powers, but this lead to confusion, with people thinking that Captain Marvel’s name was Shazam. (This would be something that would plague DC’s Captain Marvel for decades.)

Marvel, because they didn’t want to lose the trademark¹, would have to continue publishing a Captain Marvel book every few years or risk losing the trademark. DC Comics would snatch it up the first chance they get. This resulted in Marvel publishing seven different Captain Marvel characters before finally achieving a critical success hit when they promoted long-time Ms. Marvel to Captain Marvel.

¹ Trademark laws require that your mark has to be used in commerce. If you stop using the mark in commerce, you lose it.

III. Where Things Stand Today

Having said that…

Despite their newfound critical acclaim with Carol Danvers, too many long-time comic book fans associate Captain Marvel name with the Big Red Cheese. In fact, many people often mistake which character belongs to which company.

Trademarks are a brand name. It’s intended to be used to identify and distinguish the goods and/or services of one seller from those of others, and to indicate the source of goods and/or services.

This is not a problem for Marvel per se, but it does raise a concern because…

Despite legal ownership of the Captain Marvel trademark, there exists a shaky, if not outright lack of distinguishment of the goods by consumers in the Captain Marvel brand that Marvel is providing them. Worse, a lot of people mistake the source of the goods.

IV. Time for a Change

Here’s the money question:

This poses a question: If, after almost five decades with the trademark, and Marvel cannot provide consumers with a goods that predominantly distinguishes itself from their competitor’s goods, WHY NOT SHARE THE CAPTAIN MARVEL TRADEMARK?

After all, Marvel and DC already share joint ownership of the super-hero trademark. This establishes a precedence.

Due to the unique history with the Captain Marvel name, where both Marvel and DC have a character of the same name, surely they share the trademark?

Before I get to my argument, I fully acknowledge that…

Marvel has little to no incentive to share it. In fact, I’m quite sure they’d feel too threatened by DC’s Captain Marvel.

They’d have a point, because as recent history indicates, DC’s Captain Marvel is a bigger commercial threat than Marvel’s Captain Marvel. Since Carol Danvers became Captain Marvel, according to ICVo2, not once did any of her issues outsell Thunderworld. Clearly, the appeal of C.C. becks’ and Bill Parker’s Captain Marvel is a commercial threat.

And here’s my argument…

Marvels own Captain Marvel’s single issues struggle to sell more than 25,000 in print and that’s with DC treating their own Captain Marvel like an unwanted step-child with no regular publication (Captain Marvel is the only New 52 Justice League character with no on-going book). Worse, Marvel’s new Ms. Marvel outsells the Carol Danvers Captain Marvel by a considerable amount on a regular basis. This proves that the Captain Marvel name does little for Marvel, and that the driving force for commercial success has more to do with the appeal of the character. Speaking of which, what happens when Carol Danvers is no longer Captain Marvel, and she’s replaced, whether by a new one or an old one? The cycle will repeat itself. Marvel will continue to struggle commercially with character even if they singlehandedly own the mark.

Even if Marvel is or would be unwilling to share the trademark, their inability to establish a clear source of the Captain Marvel brand and long-time branding ambiguity makes that irrelevant; as long as DC Comics publishes Captain Marvel, as they currently do even with a main-continuity Shazam in the fold, they’ll still struggle to clear the Captain Marvel brand as they always have whether they share it or not. Sharing it won’t make it even more ambiguous.

Still…

It could work as far as branding goes. So that each company can distinguish their own Captain Marvel’s from one another’s, much like how companies attach their brand name to generic terms (such as Kellogg attaching their name to corn flakes; Kellogg’s® Corn Flakes), Marvel could allow DC to put their brand on a Captain Marvel book and call it DC’s Captain Marvel. While ambiguity will still be prevalent by consumers, this still allows both companies to distinguish their goods.

Last but not least…

Sharing the trademark with DC wouldn’t hurt Marvel’s bottom line: While Marvel would be extremely unlikely to consider it unless they could make money from it – and that’s (highly) improbable – they aren’t in any real position to lose money by not sharing the trademark, either. Only lack of current and historical buying consumer demand hurts their bottom line, not trademark branding.