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.