It was a simpler time. When I was a kid in the 1940s and ’50s, growing up in the Oak Cliff section of Dallas, the best part of the week was Saturday. With my 25-cent allowance closely clutched, I stood in a rowdy line at the old Beckley Theater to see the latest B-Western or Tarzan movie. Afterwards, I beat a hasty retreat to a nearby pharmacy to peruse the latest 10-cent comic books, finally selecting and purchasing one. My choice almost always featured a hero-type character with strong principles and a dedication to crime fighting and the “American way” in their make-believe world. Little did I know that deep-carpet copyright lawyers in faraway cities were then in a continuing and desperate battle for my one thin dime, fighting to maintain the legal existence of the fictional characters whose virtue I admired and adventures I so fervently followed.
The first such comic book litigation involved Superman, an alien from the planet Krypton who came to Earth possessing tremendous powers, including the ability to fly (and for some reason wore his underwear on the outside of his pants). He first appeared in Action Comics, published by Detective Comics, in June 1938, and became immensely popular. Bruns Publications, a competitor, was quick to try and capitalize on Superman’s success and published its own comic superhero, a character called Wonderman, created by noted cartoon artist Will Eisner. Suit for infringement of a copyright was immediately brought in federal court. The court found that infringement had indeed occurred, the only real difference between the two being that Superman’s “skintight acrobatic costume” was blue, while the other’s was red. Their super abilities were the same, as was their stated intent to battle against “evil and injustice,” (Detective Comics. v. Bruns Publication, 111 F. 2d 432 (2d Cir. 1940)). Legally vanquished, Wonderman disappeared, the world of evil apparently no worse off.
Fawcett Publications, in the meantime, had come up with Master Man in 1940. This character, too, was the equal of Superman in strength, speed, and crime-fighting ability. But Superman once more prevailed when Fawcett was threatened with a lawsuit. The mighty Master Man gave up without a fight after six issues (Alex Grand, How DC Sued Their Competition to Keep Superman as the #1 Superhero, Comic Book Historians, https://comicbookhistorians.com/how-dc-kept-superman-super-litigation-attorneys/).
A key challenge to Superman’s reign as “numero uno” superhero was in the form of another-red suited character introduced by Fawcett in 1939 and dubbed Captain Marvel. Under the storyline, Captain Marvel came into existence as a superhero mirroring Superman’s abilities when newsboy Billy Batson uttered the term “Shazam,” the letters being an acronym for various ancient gods. In addition to success in comic books, even surpassing Superman’s popularity, Fawcett’s character was also featured in the 1941 serial motion picture, Adventures of Captain Marvel, starring Tom Tyler. Often exclaiming “Holy Moley” when confronted with a dilemma, Captain Marvel’s archenemy was mad scientist Doctor Sivana, who assailed “the world’s mightiest mortal” as the “big red cheese.”
National Comics Publications (the result of a merger between National Allied Publications and Detective Comics, which published Superman,) again ordered its lawyers into the breach to add to the litter of would-be super pretenders. Superman was again found to be protected by copyright. The federal district court compared the characters’ super powers, costumes, and storylines, determining that Captain Marvel was a duplication of the blue-suited character and that Fawcett had plagiarized plots (National Comics Publications v. Fawcett Publications, 93 F.Supp. 349 (S.D.N.Y. 1950)). The U.S. 2nd Circuit Court of Appeals affirmed the lower court’s findings as to infringement, but reversed and remanded on other issues related to the status of the copyright themselves (National Comics Publications v. Fawcett Publications, 191 F.2d 594 (2d Cir. 1951)). The Captain Marvel character was shunted off into temporary oblivion, but years later resurfaced as “Shazam,” and a feature film involving him is currently scheduled for 2019.
Superman, however, finally met his nemesis in the form of a competing television character. The “man of steel” had gone on to tremendous success in comics, television, and movies, ever alert to pretenders, although the “golden age” of comics had become a distant memory. In 1981, ABC began promotion of a new program, The Greatest American Hero, starring William Katt as Ralph Hinkley, a high school teacher who receives a magical costume from aliens that invests him with super powers comparable to those of Superman. However, he loses the instruction book for the suit and experiences repeated catastrophic accidents in trying to control his powers, such as crash landings, flailing while flying, etc. After a lawsuit was filed and the two characters were compared, a federal district judge concluded that the television character constituted a parody of Superman and was thus protected under the “fair use” doctrine (Warner Bros. v. American Broadcasting Cos., 523 F.Supp 611 (S.D.N.Y. 1981)). On appeal, also based on a review of physical similarities and the totality of attributes and traits, the lower court finding was upheld (Warner Bros., Inc., v. American Broadcasting Cos., Inc., 654 F.2d 204 (2d Cir. 1981)). During the first season of the program, the name “Hinkley” was changed to “Hanley” because of the attempted assassination of President Ronald Reagan by John Hinckley Jr.)).
Given this ruling, it explains why no lawsuit followed the publishing by Entertaining Comics, or EC Comics, in Mad comics of its spoof, “Superduperman,” although DC Comics (the name officially adopted by National Comics Publications in 1977) initially threated a legal challenge without following up (Grand, How DC Sued). EC Comics went after other superheroes with “Captain Marbles” and “Bat Boy and Rubin.” EC’s attitude? “What, me worry?” Superman was beginning to lose his battle for copyright primacy. In the comics, parody prevailed with Li’l Abner’s “ideel,” bumbling detective Fearless Fosdick, as drawn by Al Capp, as a ruthless takeoff on Chester Gould’s Dick Tracy.
Although the “golden age” of comics ran out of steam in the 1950s, DC continued its attempts to protect Superman’s posture as the world’s mightiest hero. It was able to force some minor would-be superheroes from the field by threat of lawsuit, but, ultimately, an onslaught of such characters, as witnessed by the plethora of films currently depicting such characters, has seen that primacy diminish and copyright protection yielded for all practical purposes.
However, superheroes were not the only fictional characters in those early years making an effort to protect their legal status. In 1933, a Detroit radio station began broadcasting the exploits of a masked man and his faithful American Indian companion fighting evil in the Old West, a program quickly picked up for national airing. The Lone Ranger proved immediately successful, as witnessed by the millions of kids joining the masked man’s “safety club.” In 1938, on the heels of that success, a movie serial, The Lone Ranger, was released, featuring seven men, each of whom was potentially the Lone Ranger. Only in the final chapter was it revealed that the Lone Ranger was the seventh candidate, a character named Allen King as portrayed by actor Lee Powell
Powell then began appearing with a small circus. Billed as the “original Lone Ranger,” he wore a mask and rode a white horse, crying out “Hi-yo, Silver!” Suit was quickly brought, but a federal district court denied relief. On appeal, a circuit court found that, in the absence of copyright evidence, the actor had nevertheless engaged in a form of unfair competition, and reversed the lower court (Lone Ranger v. Cox, 124 F.2d 650 (4th Cir. 1942)). Of course, the Lone Ranger and Tonto went on to ride off into those thrilling days of yesteryear, as personified by Clayton Moore and Jay Silverheels.
Other characters underwent copyright examination. One court upheld a movie studio in a lawsuit by the Edgar Rice Burroughs family, which claimed that films about the jungle “ape man” Tarzan, had infringed on the copyright of the original books. The court found that there were sufficient differences between the original books, which traced from 1912, and the many successive Tarzan movies beginning in 1918 with Elmo Lincoln starring, and that the studio was a grantee of title to the character (Burroughs v. Metro-Goldwyn-Mayer, 683 F.2d 610 (2d Cir. 1982)). Had the plaintiffs prevailed, would comedian Carol Burnett have been estopped from giving her famous Tarzan yell?
The cowled superhero, Batman, was also not totally spared copyright challenge. The term “Batcave” was found to be protected, (DC Comics v. Reel Fantasy, 696 F.2d 24 (2d Cir. 1982)), as was “Batmobile” (DC Comics v. Towle, 802 F.2d 1012 (9th Cir. 2015)).
Thus the battles raged while kids unknowingly followed their heroes’ exploits. A thin dime doesn’t buy much anymore, and comics as I recall them have turned into serious, even morbid “graphic novels.” The heroes of my childhood, with their straightforward personalities and values, have morphed into complex entities with depressing angst. The Western stars of movie and comic fame in my childhood—Gene Autry, Roy Rogers, William Boyd, and Monte Hale—have gone to their eternal reward. It was indeed a simpler time, now sadly long forgotten. These deep-carpet copyright lawyers just couldn’t prevail over the long haul and preserve that era. Dang.
Richard J. “Rick” Miller is a retired attorney. He served 20 years as Bell County attorney and is the author of seven non-fiction books on Texas outlaws and lawmen, as well as a legal manual on Texas fire and police civil service.