Nova’s Complex Legal History

Although the Guardians of the Galaxy movie did not feature a specific character identifiable as the superhero Nova (e.g. Richard Rider), it did feature the Nova Corps, and there have been indications that Nova may make an appearance in a sequel.  It turns out that the character of Nova has an interesting legal history, one that attorney Britton Payne has written a great post about on his copyright blog, Copyright On.  Check it out!

20 Responses to Nova’s Complex Legal History

  1. It’s an interesting topic. Stan Lee, Jack Kirby and Steve Ditko clearly created the X-Men, the Avengers, Spiderman, Daredevil, etc., but the Guardians of the Galaxy? No. The only characters in the movie created by Stan Lee were Groot, who dates back to 1960 (He’s actually older than the Fantastic Four by a whole year. ) , the Collector, who dates back to 1966, and Ronan, who dates back to 1967. Stan Lee and Jack Kirby also created Adam Warlock in 1967 and he is reportedly going to be in the sequel. Adam Warlock got his own series in the 70s under Roy Thomas, Gil Kane, Jim Starlin and Steve Leialoha.

    Arnold Drake and Gene Colan created the original Guardians team back in 1969. Yondu is the only character from the original run (that included a 62 issue series written and penciled by Jim Valentino during the 90s) who appeared in the movie.

    The Adam Warlock series featured the villain Thanos who actually did appear in the movie. Jim Starlin introduced him (along with Drax) in 1973 as an Iron Man villain. Jim Starlin also created Thanos’ adopted daughter Gamora in 1975. Thanos’ other daughter, Nebula, was created by Roger Stern and John Buscema in 1985.

    Star-Lord was created in 1976 by Steve Englehart and Steve Gan. That same year, Bill Mantlo and Keith Giffen created Rocket Raccoon.

    Xandar and the Nova Corps were created by Marv Wolfman in 1979.

    The main alien threat in the movie were the Sakaarans who were created by Greg Pak in 2006.

    Finally, Dan Abnett and Andy Lanning brought together the current roster of the Guardians in 2008.

  2. Thanks for linking to my article! It’s a really fun issue for a copyright attorney.

    • “Stan Lee, Jack Kirby and Steve Ditko clearly created the X-Men, the Avengers, Spiderman, Daredevil, etc.,”

      Mostly Kirby. He did all the heavy lifting creatively while Stan did other things at the office.

      Read “Marvel: The Untold Story”. The Kirby estate has a VERY legitimate claim that the rights should revert since Kirby was the owner, but it remains to be seen if the Courts will rule based on the FACTS or based on corporate influence.

  3. So ignoring whatever (if any) agreement Wolfman has worked out with Marvel, what happens if he decides to publish a comic featuring Black Nova?

  4. Yeah, what Daniel said. If the courts have ruled that they’re different characters, then Wolfman could publish a Black Nova comic, right? That would be pretty awkward for Marvel, since the character design is virtually identical. Which should have made the original case a slam-dunk for Wolfman — that’s some pretty convoluted reasoning to say otherwise. I bet if you showed those pages to pretty much anybody, they’d agree unanimously that they’re the same character.

    • Remember, lawyers can win cases by arguing the definition of “is” in the modern world…

      To borrow from the JJ version of Spock: “I am a lawyer, I embrace convolution…”

    • “If the courts have ruled that they’re different characters, then Wolfman could publish a Black Nova comic, right? ”

      Yes… but whether people would buy it is another question entirely.

  5. Kind of related question…

    In the realms where masked vigilantes exist, what recourse does one masked hero have if another person (vigilante or villain) appears, without permission, in an identical or substantially similar uniform/outfit/costume? Particularly, if the “orignal” user has, from time to time, modified the suit?

    Movie universe Iron Man 2 seemed to have that problem when Rhody “stole” a silver copy of the golden suit. If the military or Hammer started calling that war machine “Iron Man”, does Stark have any recourse?

    Or consider Daredevil. Original suit yellow and black, later red. In universe, Daredevil was believed to be a “two person” role, one of whom was “Mike” Murdock, Matt’s sighted twin, and another person who was unnamed. The unnamed person later handed the job to a third. Matt Murdock was in some circles considered to be Daredevil, but while Matt was serving a jail term, the Daredevil costume and a vigilante using apparently identical “moves” appeared. (From outside the universe, we know all roles were Matt, but Danny Rand, the Iron Fist, helped Matt while Matt was imprisoned.) ANYHOW, in universe the precedent appears to be established that one “hero” may be several people and that the suit and heroic role may be passed from one user to another. Also, villains do the same — “The Vulture” as a suit and role has passed from the original user to at least two successors, then reverted. If either the Vulture or Daredevil felt as if a copy-cat costumed character were out doing damage to the original’s reputation, what grounds would he have to insist on a cease and desist?

    What keeps “Black Nova” from simply showing up one day in a “Nova” like outfit and starting in fighting crime? What’s different about that than, say, Sam Wilson showing up in a Captain America suit; aside from whether or not Steve Rogers may have approved?

    Can a vigilante file for trademark? Copyright? “Look and feel” protections?

    • Work through the possibilities.
      Copyright?
      There’s a limited number of things that are copyrightable, and they’re listed in the statute (17 USC 102). “Costume” is not listed… if it’s covered by copyright at all, it’s as a pictorial, graphic, or sculptural work. There doesn’t seem to be any copyright in a superhero’s name or persona. If you (or Ozzy Osbourne) wants to be “Iron Man”, you’re in the clear unless your armor looks substantially the same as Tony’s. (And if it looks the same because it IS Tony’s, other laws apply!) In any case, you probably needn’t fear a lawsuit from a superhero with a secret identity… in order to sue, the copyright must first be registered.

      Trademark:
      Trademark protection seems more likely. For one thing, the standard isn’t “substantial similarity” any more, but “likelihood of confusion”. To the extent that superheroes provide goods to the public, their trademarks protect their distinctive marks. (Substitute “services” and “service marks” to get something that sounds more like it comes from a superhero.) But it’s still shaky… is superheroing the sort of service that trademark law is meant to operate on?

      Trade Secrets:
      There’s a LOT of room for lawsuits here. The composition of Spider-Man’s web fluid, the chemical makeup of Super Soldier Serum or Beast’s mutagenic compound or the Inhumans Terrigen Mists, or even Rocket Racer’s secret for staying on a rocket-powered skateboard are all probably trade secrets. Trade secrets, however, are like balloons… once the secret is out, use of them is fair game.

      National Secrecy Law
      These aren’t as common, but probably cover the origin of Hulk’s powers, may cover some of Alpha Flight’s stuff, and a few others when they are actually working for government.

      • A few points:

        1) Isn’t it true that individuals own their own appearances and identities? For example, an ad agency cannot legally take a picture of a random person on the streets and use that image for marketing purposes w/o getting at a minimum a signed release from the photo subject.

        2)Wouldn’t “identity theft” laws also come into play here? Non-sanctioned use of a hero’s identity (which inherently affects the hero’s name and reputation) is the same as (for example) taking a random person’s name and personal data and running up debts in that name.

        3) Wouldn’t the Super-Soldier serum (and the Infinity formula) also be National Security secrets?

  6. “1) Isn’t it true that individuals own their own appearances and identities?”
    Depends on the state you’re in.
    It’s not normally thought of in an IP context; usually this is a matter of privacy law. Having a mask on changes the equation, however… a photo of “Iron Man” or “Spider-Man” doesn’t involve anyone’s likeness.

    “2)Wouldn’t “identity theft” laws also come into play here?”
    This, again, would depend on the stutute, but I wouldn’t think so. Spider-Man doesn’t have banking accounts or other assets under the identity of “Spider-Man” (a topic covered in depth in early issues of ASM). I’m pretty sure that it IS a violation of law to walk into a bank wearing a mask, of any kind.
    “3) Wouldn’t the Super-Soldier serum (and the Infinity formula) also be National Security secrets?”
    I’m sure they try to say it was, and it might even be, but I don’t think so. Obviously, it was SO secret that the inventor didn’t even share the secret with the government. Compare to the (real) scientists of the Manhattan Engineering District or the (fictional) scientists developing the gamma bomb with Dr. Banner: the government was involved in protecting the secrets, but also was entrusted with them. The scientists all worked for Dr. Oppenheimer, but Dr. Oppenheimer reported to general Groves.

    • First, thank you for replying.

      On point 1: They DO have an identity and likeness (Iron Man, Spider-Man). Why is it different than Joe Smith, or Mary Everybody?

      Of course, that opens up a ton of questions for Spidey (is Peter defrauding the Bugle by taking pics of himself as the webhead? Does that make any S-M crook catch “manufactured news”? etc).

      Lastly, given the emphasis you place on economic assets when discussing the “anonymity of the mask”, am I correct in assuming that courts no longer honor claims for damage to “name and reputation” as a damage in it’s own right?

      • James Pollock

        “On point 1: They DO have an identity and likeness (Iron Man, Spider-Man).”

        But they don’t. That could be anyone in the Iron Man mask. That could be anyone in the Spider-Man suit (OK, anyone who can cling to walls and has the proportionate strength of a Spider.)

        The closest analogue in real life is probably the masks of Mexican-style wrestlers, or the case of Clayton Moore. In Mr. Moore’s case, the owner of the mask IP could point to its economic activity and the confusion that would arise if Mr. Moore continued to represent himself as the “true” wearer of the mask (of course, the action of suing and de-masking Mr. Moore did more damage to the economic value of their property more than continuing to let him be… but if they let him be, they risked losing the IP entirely.)

        ” Why is it different than Joe Smith, or Mary Everybody?”
        The right of publicity is not of equal value across the public. If Michael Jordan claims he likes Big Macs, that has value to McDonald’s. Not so much if I do.
        If Mr. Jordan claims that somebody is using his likeness without his permission, he can point to his variety of endorsement contracts to show what his likeness is worth. But… nobody’s paying Spider-Man for ads, and with JJJ’s constant editorializing, it’s arguable that a Spider-Man endorsement is WORSE than none at all.

        Other superheroes would fare differently… all of the Fantastic Four have been openly known and are publicly known, and positively regarded, for example. Except for the Invisible Woman, all would be hard to impersonate effectively (except by, say, Mysterio or Super Skrull.)

        Anyways, there ARE some cases where a non-famous person would have a case for a privacy tort. For example, if an ad agency used a stock photo for a “have you been tested for STDs?” billboard, there’d be a good false-light lawsuit. (Whether Peter Parker has a false-light lawsuit against JJJ is a discussion that needs our hosts’ attention to flesh out.)

  7. Hi, I just stumbled upon your blog and I find the concept pretty interesting. There was a few questions that I was trying to answer but this blog is so old that you probably have already answered them and I just can’t find them. I have a few really quick questions.

    1. What would the government do with X-Men mutants in real life? Yes X-People like Rouge could easily kill someone if they wanted to, but it’s not their fault that they have these abilities. What would the government do? Especially if the public is against mutants to begin with.

    2. What if someone was dead for a few years and was resurrected? (I saw this on your “about” page)?

    3. What would the government think about Green Lantern? I mean yes the fictional city Coast City is in America so if he did fight crime on earth than he would technically be a vigilante but he is part of an intergalactic police and not a national police. So which decides? The intergalactic police of the GLC, or the American Police?

    4. Last question, let’s say that Superman was real and his villains (Brainiac, Cyborg Superman, etc.) was real also. While it would be illegal for Superman to fight crime, would they they him fight someone like Darkseid if not even the military can take him down?

    Thanks if you get the chance to answer any of these questions.

    • I am not the owner of the blog, but I am a fairly frequent commenter. (I am also not a lawyer, and do minimal legal research, so adjust your expectations of accuracy accordingly!)

      1. The CIA funded research into various off-the wall studies that veer into x-men territory (distance-viewing, astral projection, telepathy.) It seems likely that the various intelligence agencies would attempt to employ those whose abilities represented unique opportunities for intelligence-gathering.

      If you’re referring to those whose talents are inherently hazardous, the government would likely have to make up laws to deal with specific situations. For example, the guy on Heroes who constantly emitted ionizing radiation would be severely limited in his movements.

      2. This was discussed rather heavily already; the subject was Captain America, who was “dead” and then recovered. If you dig about a bit, you can probably find the discussion.

      3. The U.S. Government’s reaction to the GL Corps would probably be “do what you like, but on our territory you’re subject to our law.” The problem, of course, being whether or not they can actually do anything. If GL captures someone on the GL Corps’ “most wanted” list, and takes him (her?) (it?) off to OA for trial, what are we going to do about it?

      4. You’re under the mistaken notion that it is illegal for Superman to fight crime. It isn’t. It’s risky (if he super-punches somebody because he thinks that person is a criminal, and it turns out that he isn’t, Supes is liable for battery.) Superman is Superman, however, and rarely gets the wrong guy, so his risk is low. Plus, of course, it is notoriously hard to serve him papers in the Fortress of Solitude.

      Superman’s problem is going to be that every time he grabs someone for being a criminal, and drops that person off at a police station, that person still gets a trial, and the defense can call Superman as a witness, and if Superman doesn’t show, the criminal probably gets the charges dismissed. That’s going to cut into his crime-fighting time, and, perhaps more significantly, his reporting time. He can’t miss court dates, so Clark Kent will have to have a lot of excuses for disappearing during the day.

      • Wait, what superman is doing isn’t illegal? But isn’t fighting crime without jurisdiction be considered taking the law into his own hands (aka vigilantism). While the risk for Supes is obviously low, if he hears a person shooting at a bank or something like that and he get’s involved, wouldn’t he be braking SOME type of law?

      • “Wait, what superman is doing isn’t illegal?”

        Generalizations are fraught with danger in legal analysis, but no it isn’t generally illegal to fight crime… as long as that IS what one is doing.

        The use of physical force to restrain someone is generally a tort. There are exceptions, and “defense of self and others” is one of them. Which is not to say that “I thought I was doing the right thing” is a defense, because it is not.

        For example, suppose you are flying around greater Metropolis, and you come across a person holding another person at gunpoint, so you use heat-vision or freeze-breath or something to keep the weapon from discharging, and then you hold the person with the gun while the other person runs away. Perhaps you have just stopped an armed robbery. On the other hand, perhaps your late arrival kept you from noticing that the other guy was the robber, and the guy you held had successfully wrestled the weapon away from him. If that is the case, you have not stopped an armed robbery, you have helped an armed robber escape. Oops.

        In law school, Torts is a first-year class, and the class will spend about 15 minutes talking about intervenor liability during the discussion of the intentional torts.

        Police generally don’t like it when individuals take law enforcement as a hobby. Usually, the people who do so lack training on, for example, preservation of evidence, and de-escalation, and dealing with people with mental illness (that last one is frequently lacking in police, as well).

        The official policy of Neighborhood Watch, for example, is to observe, write things down, and then call a cop. The reason for that isn’t that it’s illegal to act on your own, it’s just usually stupid. (Cops have a liability shield that protects them, individuals acting on their own do not.)

      • OK, so theoretically, let’s say that I was Superman and I grew up and developed my powers and moved to Metropolis. What should I do to prepare myself to use my supernatural powers as a way to protect people and stay on the good side of the police and the law as a whole?

      • Well, there’s a couple of possibilities.
        First off, you could confine yourself to combatting unEarthly enemies to truth, justice, and the American Way. The United States has jurisdiction over A) things done in the United States, and B) things done by Americans anywhere. Thus, Superman fighting Darkseid on Apokalips violates no American law (though, obviously, it violates Apokalips law).

        Second, you could apply for a job as a sworn police officer, go through training at the academy, and then follow the assignments and orders presented to you by sworn officers duly appointed over you. Observe all the due process limits required by Constitutional and statutory law. (Get a warrant before using your x-ray vision to surveil a building.)

        As far as I know, those are the only two ways that are guaranteed to provide immunity from liability. Obviously, by choosing to remain private (non?)-citizen, Superman chooses to take his chances. The Metropolis probably can’t take him down, anyway, if he doesn’t want to surrender to their authority, so there’s that. Lex Luthor can’t do it either, but maybe with the city’s backing… nah, if Supes turns problemmatic (say if he goes all Punisher-y, and starts lasing down jaywalking citizens with his heat vision) best to call in Batman. The travel time between Gotham and Metropolis is very short as the bat-jet flies.

      • alright, sounds pretty interesting. Thanks for taking the time to answer my questions.

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