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  • Writer's pictureSheila Gibson, Esq

Will the real Captain Marvel please stand up?

Even superheroes need IP

With my kids begging me to take them to see Avengers: Endgame, I asked for a Superhero primer. It went like this:

Marvel -- Iron Man, Captain America, Thor, Spiderman, and Captain Marvel

DC -- Superman, Wonder Woman, Batman, Aquaman, and Captain Marvel who is now Shazam

WAIT!!! WHAT?!?!? I'm so confused! Are you?

Turns out this battle of the Superheroes was an all out battle of intellectual property (IP) rights!

This particular battle started out with the wild success of DC's Superman who first arrived on the comic book scene in 1938. And, as with any great success, comes abundant copying. The first copy to pose real competition was Fawcett Comics' Captain Marvel, who debuted in 1939 and whose similarities to DC's Superman were undeniable. Fawcett's Captain Marvel quickly gained traction and began outselling Superman, to which DC quickly responded by alleging copyright infringement of DC's Superman.

Fawcett Comics and DC fought for years over the similarities between DC's Superman and Fawcett's Captain Marvel, with DC winning in 1954 and Fawcett Comics ceasing all production of their character, Captain Marvel. And because Fawcett was no longer using their mark in commerce, their trademark for "Captain Marvel" lapsed.

Seeing an opportunity with the lapse of the trademark, Marvel debuted a new Captain Marvel character in 1967 and quickly obtained a federal trademark registration for the name.

In 1973, Superman sales were declining and DC turned to Fawcett who agreed to license their Captain Marvel, along with his supporting cast to DC. Are you still following?

Now both DC and Marvel had characters named...Captain Marvel! But, since Marvel owned the trademark rights to the name, DC couldn’t call its comic books Captain Marvel. So DC's comic books went by the title "Shazam," even though the character was Captain Marvel. This has an IP explanation: Marvel's trademark for "Captain Marvel" prevented DC from using the mark on book covers or TV shows, but did not prevent DC from calling their character by his name in their story line.

If you’re still reading and keeping score here is the breakdown:

DC takes down Fawcett’s Captain Marvel for copyright infringement — point for DC.

Marvel swoops in on Fawcett’s lapsed TM — bonus points for Marvel for the power move while DC was busy battling Fawcett.

DC licenses Fawcett’s Captain Marvel — bonus points for Fawcett for cashing in on something they can’t make anymore anyway!

Marvel asserts TM rights and DC has to call its comic books about its Captain Marvel, “Shazam” — point for Marvel.

Fast forward to 2019 when both superheroes are getting their own movies and DC ditches the name Captain Marvel for the name Shazam — bonus points for the re-brand!

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