Grab your popcorn and get ready to be entertained this weekend by the antics of Deadpool. But, the similarities between Deadpool and Deathstroke have not gone unnoticed, even by the creators of Deadpool. Since Deadpool is a clone of Deathstroke why hasn’t there been a copyright infringement lawsuit about it? We will tackle this thought provoking question today.

Deathstroke, real name Slade Wilson, was created by Marv Wolfman and George Perez for DC Comics and first appeared in The New Teen Titans comic in 1980. The mercenary wears a mask, is a martial arts and sword specialist and has regenerative healing powers. The character grew to become one of the most beloved villains and has been featured in many comic books and the Arrow television show.

Deadpool appeared some 11 years later for Marvel Comics and was created by writer Fabian Nicieza and artist/writer Rob Liefeld. The mercenary wears a mask, is a martial arts and sword specialist and has regenerative healing powers. (Hmm, sounds familiar.) Liefeld, a fan of Teen Titans, came up with the character’s visual design and name, and Nicieza himself came up with the character’s speech mannerisms. Upon seeing the costume and noting his characteristics, Nicieza admitted to saying “this is Deathstroke from Teen Titans”. Nicieza gave Deadpool the real name of Wade Wilson as an inside joke to being “related” to Slade Wilson, Deathstroke.

So we have Deadpool with the same super powers, a similar look and even the co-creators admit that he was inspired by Deathstroke, a clear case of copyright infringement, right?

Fictional characters can be protected under copyright but they must be very distinct. Judge Learned Hand established the standard for character protection in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), when he stated that, “… the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” Judge Hand, again, in 1939 held that a character name Wonder Man was an exact copy of Superman but did so by comparing the frames of the comic page by page and noting the characters were almost exactly the same other than the color of the outfits.

I think the Copyright Office explained it best when it stated “a drawing, picture, depiction, or written description of a character can be registered for copyright. Protection does not, however, extend to the title or general theme for a cartoon or comic strip, the general idea or name for characters depicted, or their intangible attributes.”

Many comic book characters are very much alike, Aquaman and Namor for instance, but these attributes such as breathing underwater or speaking to fish are merely attributes not protectible under copyright. Deadpool is an homage to Deathstroke but in terms of characterization there’s absolutely nothing in common between the two. So for Deathstroke and Deadpool, they have similar qualities or attributes but their personalities make them very different. Deadpool became known as the “Merc with a Mouth” and was famous for cracking jokes and breaking the fourth wall of comics by routinely speaking to the audience. Deathstroke, on the other hand, was a no nonsense badass. These distinctions are what helps to avoid copyright infringement between the two characters. This in in stark contrast to Wonder Man and Superman who were exactly alike in terms of look, backstory, personality and powers.

So to sum it up, in order to avoid copyright infringement of characters, while they may be very similar, they must still be a little different. Makes sense, right?? That’s why copyright law is not black and white but only shades of grey.