Superpowered Merchandising, Part One

This is a follow-on from our series on superhero privacy rights.  In this series we’ll be looking at how superheroes (and maybe supervillains) could control the use of their image through copyright and trademarks.  We’ll begin with copyright.

I. How Copyright Works

Thanks to a collection of international treaties, particularly the Berne Convention, the basics of copyright are pretty similar in most countries, but we’ll be referring specifically to the US approach, since most comic books are set in the US (at least when they’re set on Earth).  Following the Berne Convention, a work is copyrighted as soon as it’s set in a tangible medium of expression.  The creator doesn’t have to apply for copyright or even register the work, though there are some benefits to registration.  This is handy for superheroes, since in general the fewer interactions they have with the legal system the better.

So what, exactly, can be copyrighted?  In the real world, comic books themselves are plainly subject to copyright protection, but within the comic book world the characters are real people, so their own physical appearance isn’t copyrightable (it’s protected by the rights of privacy and publicity we talked about in the prior series).  So what can a character copyright?  Copyrightable subject matter is defined by 17 USC 102, and our best bet is probably the “pictorial, graphic, and sculptural works” category, as it might include costumes and vehicles.  But the statute is merely a starting point.  What do the cases say about this theory?

II. Character Costumes

Historically the law has not favored intellectual property protection for fashion designs.  See, e.g., Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929); Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452 (2d Cir. 1989) (“We have long held that clothes, as useful articles, are not copyrightable.”).  But, in a classic example of legal hair-splitting, there is a distinction between the design of an article of clothing (i.e. its cut and shape) and the design of the fabric from which it is made (i.e. the print or pattern).  “[F]abric designs… are considered ‘writings’ for purposes of copyright law and are accordingly protectible.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995).

So this suggests, for example, that no superhero (or supervillain) can lay claim to the classic cape-and-tights combo, but a costume with an original fabric pattern could be protected.  Good examples would be the web pattern on Spider-Man’s costume and the golden fish-scale pattern on Aquaman’s costume.  There’s a bit of a grey area when it comes to logos and symbols (e.g. Batman’s stylized bat, Superman’s ‘S’ shield, the Fantastic Four’s circled four).  Some superhero logos are too simplistic to be protected under copyright (e.g. the Fantastic Four logo) as they are basically “basic geometric shapes [that] have long been in the public domain.” Tompkins Graphics, Inc. v. Zipatone, Inc., 222 U.S.P.Q. (BNA) 49 (E.D. Pa. 1983). More likely though, they could count as trademarks and thus fall into a different category of intellectual property law with its own protections. Generally speaking, a work can be eligible for either copyright or trademark protection but only rarely will a particular work be eligible for both. Either way, we’ll discuss trademarks in the next post in this series.

III. Vehicles

Like articles of clothing, vehicles are useful articles, and as such aren’t ordinarily subject to copyright, but just like fabric patterns, the non-functional design aspects of a car might be copyrighted.  For example, the web pattern on the (short-lived) Spider-Mobile may be protected, but the design of the vehicle itself (e.g. the giant wings on the Batman Forever Batmobile) is not likely to be protected.  Design patents may provide better protection for ornamental design features of useful articles like vehicles, but they must be applied for and they only last for 14 years, unlike copyright, which is virtually eternal.

IV. Why Bother?

So why should a superhero care if they have copyright protection in their costume or vehicle?  One major reason, as hinted at in the title of this post, is to control merchandising rights.  Many superheroes either work for a living (e.g. Spider-Man), seem driven by fame and fortune (e.g. Booster Gold), or could always use another revenue stream to fund their work (e.g. Iron Man), so getting a cut of the merchandising rights would be very useful.  Others might not care about money but simply want to ensure that their image isn’t used inappropriately (e.g. Superman).

Many superheroes may also be concerned about copy-cats and impersonators, whether because of ego, image maintenance, or a concern that a non-superpowered impersonator might get themselves hurt.

Of course, supervillains might care, too.  More-or-less sane villains might want to prevent the sale of toys and other merchandise that portray them as bad guys (“every villain is the hero of his own story,” as the saying goes).  Or a villain like the Joker might want to have a hand in the production of Joker toys as part of an evil plot.  And the villains might be able to do it, too, even from behind bars.  While a criminal’s assets are subject to forfeiture, the law usually focuses on tangible assets, particularly those that are themselves contraband (e.g. illegal drugs), proceeds from illegal activities, or that were used to commit crimes.  Intellectual property assets like copyrights are intangible, and they don’t fall into any of those three categories, so it might be difficult for the government to seize them.

V. Conclusion

Although it’s a little harder to use within the comic book world than the real world, copyright can still be useful for superheroes (and supervillains) to control the use of their image, both for its own sake and as a way to derive revenue from merchandise sales.

21 responses to “Superpowered Merchandising, Part One

  1. In an issue of way-early spider-man Peter loses his costume and buys one from a novelty shop so he can keep fighting crime. Lets also not forget “Planet Krypton” from Kingdom Come, or anything Booster Gold has done for that matter…

  2. I’m reminded of Adrian Veidt from Watchmen who peddles his persona Ozymandias (and others; certainly I remember villains being cast as such) as action figures and other toys. Surprised that’s not mentioned as an example of it occurring in some fiction rather blatantly 🙂

  3. TimothyAWiseman

    If I might digress slightly from the topic of superheros, I found the choice of words in “unlike copyright, which is virtually eternal.” quite interesting.

    But it is definitely accurate. After the Sonny Bono Copyright Extension Act, copyrights generally last for the life of the author plus 70 years, which is indeed a very long time (especially when someone is potentially ageless like wolverine). Moreover, that act retroactively extended the copyright on items already created. If such retroactive extensions were to become common then copyright could indeed be virtually eternally.

    This is especially interesting since the copyright clause of the US Constitution (Art 1, Sec 8, Clause 8) specifically states that they are to be for a limited time.

    Topics like this are discussed extensively by James Boyle at http://www.thepublicdomain.org/.

    • In comic books the issue is not just long-lived or immortal characters like Wolverine, but in fact most characters seem not to age much, and in the rare event they do die they usually don’t stay dead. So the ‘life of the creator plus 70 years’ term is effectively eternal for most superheroes.

      As to the bit about the Constitution, well, the Supreme Court considered what ‘limited Times’ means in Eldred v. Ashcroft, 537 U.S. 186 (2003). In a 7-2 decision the Court pretty firmly held that, so long as the copyright term is finite (i.e. literally not infinite), then Congress may set the term as it pleases, including extending the term of existing works retroactively.

      I don’t think even an apparently immortal character like Wolverine would upset the Court’s analysis because immortality isn’t really provable. Once someone dies you can say “yep, they were mortal alright,” but as long as someone is alive they are potentially immortal. As the joke goes: “I plan to live forever. So far, so good.” So while Wolverine is expected to live effectively forever, no one can actually say for sure if he will (well, maybe The Watcher could, but he probably won’t).

  4. The courts might have frowned on copyrighting fashion, but they’re no strangers to dealing with costumes:

    http://www.brittonpayne.com/Marvel.html

    The “Seven Essential Costume Elements” seems most relevant here, as it actually deals with usurpers of a sort.

    However…what about characters who have been around the block for a while? For example, given the longevity of the Green Lantern Corps (and occasional appearances of Green Lanterns appearing decades ago), wouldn’t it undermine a copyright claim to know that an alien wearing a similar costume showed up a hundred years ago when copyrights were of fixed length and required some maintenance?

    Likewise, what effect does time travel have? Wonder Woman is currently a modern character, but at some point, her mother became Wonder Woman in the ’40s. From our outside perspective, her costume is the derivative work (of her daughter’s), but having appeared far earlier…

  5. Would a hero/villain be entitled likeness rights, even if they have no copyright or trademark on the costume, given that the costume is so heavily tied into their public identity?

  6. Interesting flip side question:

    What if I woke up tomorrow with Flash or Superman powers and began acting in real life like the same, including dressing as them, in full costume? What sorts of legal avenues (enforceable in reality or not, because I’d be, well, SUPERMAN) would DC/Time Warner have against me?

    • We generally stick to in-universe scenarios and don’t like to comment on the legality of real-world actions, even hypothetical ones.

      • It does happen as an in-universe problem. “Superman: Secret Identity” has a man named Clark Kent who gains Superman powers, in a world where Superman is a comic book character. What are the legal consequences of becoming Superman for him?

      • Well that changes things! Thanks for the tip. I’ll see if I can track down a copy.

      • I had completely forgotten about that book! You won’t regret it, James; its one of the better Superman stories out there.

      • There was a TV series in the ’80s called Once a Hero, which was cancelled after 3 weeks. It was about a comic-book superhero who came to life in the real world. The never-aired fourth episode would’ve featured Adam West as the actor who played that comic-book hero on TV, and who was suing the real hero for stealing his act. (Or maybe just complaining rather than suing. The episode was never aired, and I saw the preview decades ago, so I don’t know for sure.) I wonder how that case might’ve gone down. It might be relevant that the “real” hero was living with the comic-book writer who created him. But of course not all comic-book creators actually own the rights to their characters.

      • Maybe this question will be addressed on The Cape as The Cape literally stole his identity from the comic book.

        The reverse is also true. What if a comic book company starts publishing Superman comics without his permission? Can Superman sue even though he hasn’t registered his likeness as a trademark? I think this was covered under privacy but I’m assuming they don’t know he’s Clark Kent. If they were just publishing comics about Superman being Superman then perhaps he would just leave well enough alone.

        What about a comic book company publishing Mohamed comics? Muslims would be upset but would they have a legal case to make the publisher cease and desist? Okay, that’s a real world question. Sorry.

        There’s always the NBC series Heroes. The comic book 8th Wonder followed the adventures of Hiro Nakamura, Matt Parkman and Peter Petrelli and did so without their permission. The publisher did not know these were real people even though the writer / artist eventually found out they were. (He could draw the future.) Of course, the Petrelli family was very famous and very wealthy. You’d think their lawyers would have sued for damages arguing that all anybody had to do was google the name Peter Petrelli and realize that his right to privacy was being violated.

  7. One word: taxes.

    Let’s say Spider-man demands a cut from all revenue from Spider-man dolls, Spider-man costumes, Spider-man comics, Spiderman-movies, Spider-man TV shows, etc. This could add up to a lot of money. Obviously though the government isn’t going to accept the name Spider-man on a tax return: he wouldn’t even have an SSN as Spider-man. And the government right wonder if he is getting money when he’s not Spider-man too. (This might be a bigger problem for Batman or Iron Man: the superhero could potentially be making a lot of money in both his civilian and hero identity and if the government found out they would not be very happy.) So how does a hero get around this? Wouldn’t he have to come clean about his identity, like Adrian Veidt from Watchmen, for example?

    • “One word: taxes.”

      Taxes are always a problem, but there are some potential solutions. First, there are those superheroes whose identity is public (e.g. Iron Man), so they wouldn’t have a problem. Second, a superhero who merely wants to control the (mis)use of his or her identity could give a charitable foundation the exclusive right to sublicense the rights. Since the superhero doesn’t earn any income, there’s not a tax problem. This would work for superheroes like Superman.

      More complicated schemes may be necessary for superheroes with secret identities who need the money for themselves (e.g. pre-Civil War Spider-Man). For example, Spider-Man could use a charitable foundation setup with a twist. The foundation would use the licensing proceeds to fund various charitable projects, such as providing college scholarships to orphans attending Empire State University. As ‘luck’ would have it, a certain Peter Parker is eligible for that scholarship. Basically the foundation acts as a smokescreen for indirectly paying Peter Parker. Yeah, less than 100% of the money is going to end up in Parker’s pockets, but a) Parker’s never been in it for the money and b) at least it’s doing some social good along the way.

      • Martin Phipps

        Would Iron Man be able to get away with “donating” money to the Maria Stark Foundation and then using that money to pay for his boys (and girls) club?

  8. Okay, we want more posts on cloning but it has to be in universe; we get it. So to what extent is Mr. Fantastic liable for the death of Giant Man / Bill Foster because he cloned Thor. Ha! Now you have to answer!

  9. Interesting you mention the Joker starting his own line of toys – he actually had tried something like that, except with fish. Naturally, it doesn’t take.
    http://www.toonzone.net/anbat/btas/tlf.html

  10. Pingback: The Amazing Spider-Man: Background | Law and the Multiverse

  11. Maybe creating some new names for your self trademarks or just build some new heroes is the best than copying some iconic heroes. Every person has its own originality.

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