News & Cues: Who Owns Superhero Characters?

by Koka Tarini Siddhartha

We are constantly surrounded by superhero characters in comic books, movie franchises and merchandise. In this post, we highlight the importance of the authorship and ownership of these superhero characters.

Who are these superhero characters you are talking about?

Despite there being innumerable publishing houses apart from DC Comics and Marvel Comics, in order to effectively convey the general conceptual ideas around superhero characters, we plead guilty of focussing primarily on characters originating from these two massively popular and outrageously successful publishing houses. The superhero characters that we intend on referring to will thus invariably include Superman, Batman, Captain America and the like.

These characters have developed, and their stories have changed over time. Characters like Superman (DC Comics) and Captain America (Marvel Comics) were products of World War II. Comic books with these superheroes were published to portray superhuman qualities, patriotism and other values that every American was to picture in the protectors of their nation.

Along with the refinement in the characterization of these superheroes and the development in their stories, the medium of their depiction evolved as well. Comic books in the form of ‘pulps’ went on to become popular radio serials and TV shows (always ending in cliffhangers) and then ultimately became multimillion-dollar movies. Movies featuring the teaming up of superheroes, like The Avengers, Batman v. Superman: Dawn of Justice and The Guardians of the Galaxy, have become box office hits, often more popular than the individual superhero films.

Why are we talking about superheroes in various mediums?

To answer this, let us take Superman as an example. ‘America’s most-loved superhero’, Superman, was created by two friends, Jerry Siegel and Joe Shuster. During the pulp period of comics, Siegel was the brains behind the story and dialogues, while Shuster illustrated Superman. Desperate to publish their work, they sold a thirteen-page story of Superman to DC Comics for a meagre $130 ($10 per page).

DC Comics has never disputed Siegel and Shuster’s authorship of Superman, but have always portrayed themselves to be the owner of the character. According to DC Comics, the creators could not demand ownership of Superman as they were paid a flat fee for their work. DC Comics’ contention was reconfirmed by several lawsuits during the authors’ lifetime, and even after their death.

More interestingly, several essential characteristics that one tends to relate to Superman were not even created by Siegel and Shuster. In the phrase ‘Truth, Justice and the American Way’, the first two words were developed in the Superman radio serial by the producer and publicist for DC Comics, Robert Maxwell and Allen Duchovny respectively. The phrase ‘and the American Way’ was later added by Olga Druce.

Similar to the Superman authorship disputes, Bob Kane, Bill Finger and Jerry Robinson fought over the authorship of Batman. Even Jack Kirby, the infamous creator of Captain America, Thor and The X-Men, amongst others, got entangled in a lawsuit with Marvel Comics. His heirs wanted to terminate the rights assigned to Marvel Comics, which the company refused on grounds that Kirby had created the characters during the course of his employment.

The ‘work-for-hire’ defence used by Marvel Comics was successful in the lower court, but when it was appealed, Marvel Comics settled with Kirby’s heirs even before the Supreme Court could make a decision. Why? Because Kirby had not been an ordinary employee; he had worked from home, with no sick leave or vacation. Not wanting to risk their ownership rights over Kirby’s characters, Marvel Comics quickly settled out of court, the terms of which are confidential.

Why is authorship of these superhero characters so important?

The authorship of any creative work is important, and the same applies to the creation of superhero characters. When authors put in the time and effort to create an artistic work, they expect something in return. Since the superheroes mentioned above are commercialized and thus highly profitable, authorship rights are very useful, as authors can continue making money even after they transfer ownership rights.

All this revolves around contracts and licensing agreements. Publishing houses like DC Comics and Marvel Comics need to be more careful when they enter into a contract with writers and artists of superhero characters. The terms of the contract should specify the flat fee or royalty payable to the author of the work, whether the character is licensed or assigned, the term of the agreement, the attribution that ought to be given when a comic book is converted into a movie, and so on.

Superheroes: a money-making industry

The superhero entertainment industry is indisputably a very rich and successful one. Apart from films and TV shows, merchandise is another massive source of revenue for publishing houses. For example, DC Comics licensed a few characters to the Danish company, Lego.

Since copyright law extends the same protection to work owned by either an individual or a corporation (life of the author + 70 years in the United States, and life of the author + 60 years in India), the owners of popular superhero characters like DC Comics and Marvel Comics usually get their characters protected under trademark laws as well. That way, they can renew the protection periodically and the characters will be protected in perpetuity. DC Comics and Marvel Comics went to the extent of getting the term ‘superheroes’ trademarked! The two companies have co-registered the mark to use on toys and comic books. The ultimate achievement for these companies is in mastering and reaping benefits through their intellectual property assets viz., copyright and trademark.

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