Will The Real Captain Marvel Please Stand Up?

Ian McManus, Associate, University of Cincinnati Law Review

Later tonight, March 7th, 2019, fans of the Marvel Cinematic Universe will be introduced to one of Marvel’s most incredible cosmic superheroes – Captain Marvel! While Captain Marvel is noteworthy as being the first female-led Marvel movie (I refuse to count Elektra) it is not actually the first movie to star a superhero named Captain Marvel. Back in 1941, Republic Pictures produced a live-action movie serial entitled Adventures of Captain Marvel that featured a distinctly different character named Captain Marvel.[1] In fact, the copyright to that version of Captain Marvel is owned by DC Comics and he will also be getting his own movie this year, on April 5th, entitled Shazam!

How did we get to the point where we have two different Captain Marvels, owned by two different companies, getting their own movies in the same year? Why is Marvel allowed to title their movie Captain Marvel while DC must use the title Shazam!? The answers to these questions will be revealed through the following explanation of the copyright and trademark history surrounding the two versions of Captain Marvel.

Superman v. Captain Marvel in a Copyright Battle for the Ages!

The original Captain Marvel was a character published in 1939 by the, now defunct, Fawcett Comics. This Captain’s civilian identity was Billy Batson, a young orphan whose pure heart remained untainted by the horrible tragedies he had experienced in life. After being guided to a mystical subway car, Billy was taken to the Rock of Eternity and found worthy of receiving incredible powers from the wizard Shazam. By shouting the wizard’s name Billy could transform into an adult superhero who wielded the awesome power of the Greek Gods! Affectionately referred to as “The Big Red Cheese”, Captain Marvel would become America’s most popular superhero during the 1940s, surpassing even Superman and Batman in sales.[2]

Unfortunately for Billy, his good luck would run out. Almost immediately after Fawcett began publishing Captain Marvel stories, DC sued Fawcett for infringement of DC’s copyright to the Superman character.[3] DC likely felt good about their chances in court; after all, they had recently won a similar copyright infringement suit against Brun Publications over Brun’s superhero Wonderman.[4] In Detective Comics, Inc. v. Bruns Publications, Inc., the Second Circuit found that the archetype of a “‘Superman’ who is a blessing to mankind” was not protectable by copyright, but the particular expression of that archetype that Superman represented was protectable.[5] Since the Wonderman character shared many of the same expressions as Superman – both characters concealed their costumes under ordinary clothing, showed similar feats of strength, and leaped tall buildings in a single bound – the Second Circuit found that Wonderman infringed upon DC’s Superman copyright.[6]

Considering that Captain Marvel also had a similar look and powerset to Superman, it was unsurprising that DC relied on the Bruns case in their infringement claim against Fawcett. In National Comics Publications, Inc. v. Fawcett Comics, DC argued that Captain Marvel was infringing on their Superman copyright just as Wonderman had.[7] Both Superman and Captain Marvel had essentially the same powers, civilian identities as reporters, and costumes based on gymnast or acrobat uniforms.[8] Based on these similarities, the Second Circuit found that Captain Marvel infringed on DC’s copyright and, instead of pursuing the matter further, Fawcett decided to settle with DC in 1954.[9]

So, what became of Fawcett and Billy Batson after their losing day in court? As a part of the settlement with DC, Fawcett discontinued their superhero comics line and paid $400,000 to DC.[10] They would never publish superhero comics again. While the Captain’s golden age was over, DC was not done with the Big Red Cheese. Always on the lookout for colorful new characters, DC solicited Fawcett to license Captain Marvel in the 1960s.[11] As a result, Captain Marvel re-entered the world of comics in 1973 under the creative control of DC Comics.[12] On the cover of the first issue of his new series, Captain Marvel was reintroduced to the world by nonother than Superman himself.

As Billy Batson fades from the Spotlight, DC’s greatest comic-book rival emerges!

While DC had ultimately won the copyright battle against Captain Marvel, their lawsuit against Fawcett had unintended consequences. While Fawcett had initially trademarked the name Captain Marvel, it had abandoned the trademark after settling with DC.[13] With a trademark as tempting as the Captain Marvel name up for grabs, it was only a matter of time before it was claimed by the competition.

Enter DC’s long-standing rival – Marvel Comics! Interested in obtaining the rights to all things “Marvel”, Marvel would register the Captain Marvel trademark in the 1960s.[14] Motivated to secure their Captain Marvel trademark, Marvel’s publishers tasked Stan Lee to create his own version of Captain Marvel.[15] Thus “Marvel’s Space-Born Super-Hero” stormed comic stands everywhere in 1967! Captain Mar-Vell was an officer of the Kree Empire, a race of militaristic aliens, who was sent to observe humanity in order to determine if they could threaten the Kree Empire. Defecting from the Kree and siding with Earth, Mar-Vell became known as the hero Captain Marvel!

Since Marvel had trademarked the Captain Marvel name and protected their trademark by publishing comics about Mar-Vell in 1967, DC could not use the name in marketing the original Captain Marvel in 1973.[16] DC initially tried to title their licensed Captain Marvel book as Shazam! The Original Captain Marvel but relented after a Marvel cease and desist.[17] DC would ultimately resign themselves to titling the book Shazam! Earth’s Mightiest Mortal.[18] DC was still able to refer to the character as Captain Marvel in the panels of the comic but had to use the Shazam! name for the title.[19] DC continued this trend for decades until DC decided to simplify things in 2013 by renaming Billy’s alter-ego Shazam.[20] While it is still not known if the Shazam! movie will reference the character’s Captain Marvel roots, it is more than likely that the movie will mirror the comics and scrap the name altogether.

Conclusion: Marvel stands victorious as DC concedes the Captain Marvel name! How they plan on using their Trademark going forward!

Marvel’s acquirement of the Captain Marvel trademark has rewarded them significantly in recent years. While the character of Mar-Vell never achieved the same mass-popularity as Marvel characters like Spiderman or the X-Men, his successor has become one of Marvel’s most valuable characters. Originally created in 1968, Carol Danvers was an air-force pilot and confidant to Mar-Vell. In 1977, Marvel gave her a solo series in which she gained powers identical to Mar-Vell’s and the name Ms. Marvel. Danvers would remain a staple of the Marvel Universe for decades and has been a member of the Avengers, X-Men, Guardians of the Galaxy, and even Alpha Flight (think Canadian Avengers). Her character reached new heights of popularity in 2012 when she adopted the name Captain Marvel to honor the then deceased Mar-Vell. Her 2012 solo series received critical acclaim and provides the clear inspiration for the Captain Marvel movie.

Of course, Disney and Marvel know a financial opportunity when they see one and has recently been busy trademarking the Captain Marvel name for dozens of new categories.[21] To name a few, Marvel has trademarked the Captain Marvel name under the categories of clothing, glassware, lunchboxes, Christmas stockings, and even fanny packs![22] Clearly, Disney and Marvel are preparing these trademarks in anticipation of all the lucrative merchandise they can sell based on their upcoming film. As they rake in their Captain Marvel money, I wonder if the people at Disney and Marvel will stop for a moment to appreciate that it would not have been possible but-for a lawsuit initiated by their greatest competitor.

[1] Adventures of Captain Marvel (Republic Pictures 1941).

[2] Joe Sergi, The Law for Comic Book Creators: Essential Concepts and Applications 46 (2015)

[3] Id. at 46.

[4] Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2nd Cir. 1940).

[5] Id. at 434.

[6] Id. 433.

[7] Nat’l Comics Publs., Inc. v. Fawcett Publs., Inc., 93 F. Supp. 349 (S.D.N.Y., 1950).

[8] Id. at 355-356.  

[9] Nat’l Comics Publs., Inc. v. Fawcett Publis., Inc., 191 F.2d 594 at 603 (2nd Cir. 1951); Sergi, Supra note 2, at 52.

[10] Sergi, Supra note 2, at 52.

[11] Id. at 53

[12] Jay Seragino, The Litigious History of DC and Marvel’s Rival Captain Marvel Characters, (last visited Feb. 17, 2019) http://mentalfloss.com/article/542404/litigious-history-dc-and-marvel-rival-captain-marvel-characters.

[13] Sergi, Supra note 2, at 53.

[14] Id.

[15] Seragino, supra note 12.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Rich Johnston, Marvel Comics Register a Ton of Captain Marvel Trademarks, https://www.bleedingcool.com/2018/05/03/marvel-comics-register-a-ton-of-captain-marvel-trademarks/ (last visited Feb. 17, 2019).

[22] Id.