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THE LAW IS A ASS for 11/21/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 70
Originally written as installment # 59 and published in Comics Buyer's Guide issue # 608, July 12, 1985 issue
Today's column originally came out one week before the 1985 Chicago ComiCon. I can't tell you how many people came up to me during the show and asked me, "Would you really sue Marvel?" I can't tell you, because who kept count?
The answer is, yes, were I in DC's position, I probably would have done something, primarily for the reasons I mention an the end of this column. It's a principle I've learned from working for the government for almost twenty years: use it or lose it. In the case of copyrights, if you don't protect them, you stand the chance of losing them. So, yes, I would probably have sued or, at least, sent a Cease and Desist letter. Anything to show I was protecting my copyright.
In the column--and remember it came out years before there was a Big Bang or Alan Moore's run on Supreme--I said if DC didn't act against Squadron Supreme, it would be allowing others to do the same thing; use thinly-disguised versions of DC's characters in on-going series with impunity. In that prediction, as well as the prediction that the Vibe/Vixen version of the JLA wouldn't last and DC would go back to something more like the original team, I was correct.
I don't know whether DC did contemplate legal action over Squadron Supreme. I don't even know what the outcome of such a legal action would have been, had there been one. It's true that there were intentional similarities between the Squadron Supreme and the Justice League of America. But those were a starting point designed to give the reader a feeling of familiarity and security before veering the series into a direction JlA would never take. But those differences probably wouldn't have been enough to win the day. After all, although using JLA simulacrum did give the reader a comfortable starting point, the same story could have been told with new and original characters instead of with obvious JLA rip-offs.
One more thing: It should be noted that not all great ideas work out. Fellow World Famous Comics columnist Bob Rozakis assured me in the 1985 Chicago ComiCon that my lasagna noodle idea wouldn't work. Something about the crinkly edges of the lasagna noodle not holding the registers for the colors properly. I didn't understand it, it was all production and technical. All I know is that yet another chance for my fame and fortune went the way of All-Flash.
******
"The Law is a Ass"
Installment # 70
by
Bob Ingersoll
Well, if I were DC, I'd sue.
Sue Marvel, that is. Over Squadron Supreme. There are just too many similarities between it and the Justice League of America for DC not to sue.
To understand why I'd sue, if I were DC, you have to know under what theory I'd sue, and for that, I need to lay some background and define some terms.
The United States wants to foster creativity in the arts and sciences, instead of on a tax return. For this reason, it has developed ways to protect intellectual property from being duplicated or used without permission and thereby depriving the creator of the fruits of his creativity. There are three distinct types of intellectual property protection: patents, trademarks, and copyrights.
Patents are used to protect inventions. A patent bestows the exclusive right to make, use, or sell a new invention. It means that the patent holder is the only one who can do anything with the invention, unless he gives, or as is more frequently the case, sells to another the right to use it.
Patents don't really come into play, when talking about comic books. There aren't really any new inventions relating to comic book publication floating around. Now if Bob Rozakis were to invent a printing press which could turn out four-color comics on lasagna noodles, he could patent it and sue anyone who used the process without his permission, but that's not the case with the Squadron Supreme.
Incidentally, I think Bob should get to work on that idea. It's not as silly as it sounds. When you buy the first issue of a new series and decide that you don't want to collect any future issues, what do you do with that first issue? You bag it and put it with your collection, of course, so that this one unwanted comic clutters up your collection. With my idea you could eat the comic, get some valuable nutrition and not waste a Mylar snug.
But I digress. Squadron Supreme does not present any patent law problems for DC. But what about trademark problems? And, for that matter, what is a trademark?
A trademark is exactly that, protection for a mark or identifying symbol used by one in his trade or profession. (See how simple it really is? Who said the law is complicated?) Trademarks must be distinctive, not like another trademark already in use, and be used in the business in order to receive protection. They must also be displayed on a product, the package said product comes in, or the label attached to the product. Comic book stories and covers cannot be trademarked, they are works of art not marks used in the trade. But aspects of a comic book cover--because the cover is the package in which the comic comes--can be trademarked.
The comic's logo can be trademarked, as can the title of the book. The Superman logo, for example is trademarked. As long as it is, only DC Comics, Inc. can print a comic called Superman or use a logo which looks like Superman's.
In the same way the stylized S insignia on Superman's chest is trademarked. No one else can use that particular S in a business without DC's permission. Well, they can--in fact I've seen a few such uses--but they're just asking for a lawsuit. And I know of a few such lawsuits.
Trademarking, incidentally, is why some insignias get changed. Wonder Woman's old insignia, the American Eagle, could not be trademarked, because it is the symbol of the United States and ineligible for trademarking. That's why Wonder Woman switched over to the eagle like paired W's which currently adorn her costume. That insignia is trademarkable.
Finally, a costume can be trademarked, so that no one else can give another character the same costume without permission. In this way one comic publisher can't give one of its characters a costume which is identical to, say, Wolverine's costume in order to make the public think they are buying a copy of X-Men. That's what the big Wolveroach imbroglio was all about.
(Incidentally, does anyone really believe the story that Marvel didn't instruct it's lawyers to threaten suit over Wolveroach? How else did the lawyers know that the character existed, so that they could threaten suit? The only other explanation is that Marvel's lawyers have one associate whose job it is to read every comic published looking for trademark infringements. Imagine that, being able to read all the comics in the office and log the time spent as billable hours. How do I get that job?)
I do not believe that Squadron Supreme is actionable as a trademark infringement. True, its logo is similar in style and construction to the Superman logo, but the logos are different enough in how they look and what they say, that no one is going to buy a copy of Squadron Supreme because he mistook it for Superman. In the same way no member of the Squadron has an insignia or a costume which is so similar to a JLAer's that there is likely to be confusion. Well, if you want to get picky Nighthawk, has gone back to his old costume, which practically steals The Batman's costume. But neither Nighthawk or the Batman are presently members of their respective groups. Skrullian Skymaster's costume looks like it's one of the early, discarded designs for Martian Manhunter, but I'm not sure how often he's going to appear, so the confusion factor is, again, small. (Skrullian Skymaster, indeed! What's his real name? S'amm S'mithh?) Arcanna's fishnet costume looks like Zatanna's old costume or Black Canary's old costume, but seeing as both these JLA members now have new costumes, there is a minimum of confusion here.
But, if the Squadron isn't actionable as a trademark infringement either, then that only leaves copyright infringement. So, let's discuss the copyright.
A copyright protects art. Pictures, drawings, paintings, stories, novels, music anything like that. And the term art is given a very broad interpretation. Why, even B'wana Beast would qualify. When an artistic work is copyrighted, it means that no one has the right to copy it and sell the copy, without the permission of the copyright holder.
Now all of DC's stories are copyrighted by DC. If you don't believe me, just look at the indicia of every DC comic you own. (I kind of thought you'd take my word on this.) Thus, if another company, say Marvel, were to publish a comic, say Squadron Supreme, which copied all or part of one or more of the DC stories, then DC could sue Marvel for copyright infringement. Loyal readers of this column will remember a recent installment where I discussed famous DC copyright infringement suits of the past. The principles which I discussed then will apply here. New readers or longtime readers with poor memories don't worry; I will forgive these transgressions and recap the principles.
Stories are arrangements of incidents and literary expressions which are original to the author and are copyrightable. Another story can infringe on that copyright in one of two ways. First it can duplicate exactly the arrangement of words used, that is it can copy the first story word for word and try to pass it off as an original work. This practice is also called plagiarism.
The second way is slightly more complex. A story can use its own words but duplicate situations and incidents of the first story to such an extent that it also infringes on the copyright of the first story. If I, for example wrote a novel about a one legged sea captain who was injured by an albino whale and who relentlessly sought revenge, I would be guilty of copyright infringement, even if I didn't start the book, "Call me Ishmael".
The infringing work doesn't have to duplicate all of the events of the first work. If in my story, I had the whale lose--something I would never do, mind you, I have an affinity for albinos-- the story could still be an infringement. If the incidents in the second story are simply too similar to incidents in the first story, the second can infringe the first's copyright.
This is where it gets tricky, however. You can take the basic premise of our fish story--fisherman becomes obscessed with catching killer sea creature--change it enough and make lots of money by calling it Jaws. It really depends on how much of the original property you use.
The classic comic book example of this principle is the federal court in New York that ruled Fawcett's Captain Marvel infringed DC's copyright on Superman. Because both had similar costumes--skin tight and cape--similar appearances, similar powers, similar occupations in their secret identities, and similar bald headed mad scientist villains, the court ruled that the incidents in a typical Captain Marvel story were of a necessity similar to the incidents of a typical Superman story, so similar, in fact, that Captain Marvel infringed Superman's copyright.
The question, then becomes are the incidents in the Squadron Supreme so similar to incidents found in DC stories that there is infringement? In order to answer this question, I'll have to list the similarities.
Uh, you don't have to go anywhere in a hurry, do you? Listing all the similarities I found in the Justice Clones of America, is going to take a while.
Let's start with the name of the group. According to Issue #2 page 3 panel 2, it is the Squadron Supreme of America. In addition the team's HQ was in a satellite, until the satellite was destroyed. I seem to recall reading that same satellite-destruction story somewhere else recently.
Now let's turn to the individual members of the group, their powers, sex, and in some cases origins. First we have Hyperion. He came to Earth from another planet, was raised by an ordinary Earth couple who taught him their values. He possesses super strength, invulnerability, flight, telescopic vision, and heat vision. Hyperion can only be weakened by the green glowing radioactive isotope, Argonite. For those of you who didn't take chemistry argon, like krypton, is an inert gaseous element.
I don't know. Maybe it's just me, but I have a definite feeling of deja vu here.
Nighthawk is a wealthy man who fights crime dressed as a dark creature of the night. He drives something which looks like a Nighthawkmobile, wears the best imitation of Batman's costume I've seen, and has a tunnel under his mansion which he enters through the back of a grandfather's clock. In addition Hyperion calls him, "Old friend."
Power Princess (notice both the alliteration and the royal title) came from the paradise of Utopia Isle to the outside world during WWII as an ambassador who hoped to teach the world the Utopian way. She rescued a seaman, who was the lone survivor of a sinking ship, and fell in love with him, ultimately marrying him. She can fly, is strong, and has an invisible shield over her bracelet, which she uses deflect bullets. And I'll be damned if when she uses it, it doesn't look like she's bouncing bullets off of her bracelet. But that's just coincidence, right?
Doctor Spectrum was a former astronaut (after all, test pilots become astronauts, don't they?) who found and helped an alien in a disabled space ship and received a power prism in payment. Doctor Spectrum controls his prism by thought and can control it from a distance, even if he isn't touching it. Said prism enables the good Doctor to fly and to create energy objects he can manipulate. The objects are usually large versions of everyday household items or geometric shapes. Said objects are also various colors of the spectrum. Hopefully, when the objects are supposed to be blue the coloring plates won't slip. Heaven help us, if the objects should appear green.
The Whizzer is the "fastest man on earth," because comic books couldn't call him Wizzer for the other obvious reason. He hails from the midwest, is good friends with Dr. Spectrum, and looks suspiciously like Barry Allen, when he still had his crew cut.
Blue Eagle, who used to be Cap'n Hawk until someone realized that his name and costume were probably a little too close to the original, has wings and flies. (That is he has the power of flight, he isn't infested with insects.) Actually, Blue Eagle has wings to steer him and an anti-gravity device for the actual flight, and he uses old fashioned mace like weapons. To the best of my knowledge, however, he doesn't say "Wheet! Wheet!" Yet.
Arcanna has magical powers with a special affinity for wind, wood, and water. Why they left out control over the fourth element, earth, I don't know. Subtlety, I guess.
Golden Archer doesn't eat at McDonalds; he's an expert archer who uses gimmick arrows and has a colorful name. His present girlfriend is fellow SS member, Lady Lark, mistress of kung fu and possessor of weird vocal powers. Oh, guess what? Just for originality's sake the romance between the archer and the bird lady is on shaky ground.
Tom Thumb must have sneaked into the Squadron when no one was looking. Yes, he's short (he's a dwarf) and a scientist, but he's not anything like the Atom. Oh well.
Amphibion is a mutant who can live under water indefinitely or on land for limited periods of time. Unfortunately, he's an underachiever. He can only talk to dolphins, not all sea creatures. I think he's under training to see what he can do about that.
Nuke is the youngest member, a little hot-headed, no pun intended, and impulsive. His power is that he shoots bio-atomic energy (whatever that is). He has shown no signs of transmutation. However, he hasn't shown any signs of originality either.
There is one other member of the group, one of the founding members, the Skrullian Skymaster, a green skinned alien who has returned to his own planet. Presumably, the Skymaster lacked the characteristic strength or the ability to fly possessed by Martians, but he does share their shape shifting power.
(It makes you kind of wonder, doesn't it? What happened to Stretchsocks or the Crimson Cyclone? Actually, rumor has it that the Skrullian Skymaster is coming back with some new members including, Shake-Rattle-n-Roll, Vagabond, She-Fox, and Mister Metal. Tony Isabella suggested that I call the last character Miss Lead, but I couldn't do that. First I would be changing the sex of one of the characters, something the Squadron Supreme would never consider. Second, Tony's got the copyright on the joke.)
And if that's not enough let's look at some of the up and coming villains for the Squadron. We'll have Hyperion's archfoe, criminal scientist Emil Burbank. The preliminary reports are inconclusive as to whether or not Burbank is bald, but you know where my money's riding. Next is Nighthawk's nemesis, Wildcard, who I understand is a real joker. How about Whizzer's simian opponent, Ape-X? Oh Grodd-y to the max! Dr. Spectrum's old sparring partner, Insidio, will show up with some, no doubt, sinister plots. And we'll also see Princess Power's foe, the Minx. Incidentally, don't play cards with Minx. I understand she's a real "Cheetah."
Enough! If Mark Gruenwald wanted to write stories about the old Justice League of America, he should have gone over to DC and written them. After all, no one else is right now.
Now, what is the point of all this vituperation other than to show my ready wit? It's to demonstrate that every member of the Squadron Supreme, every concept, and even every villain is lifted bodily from a member of the Justice League of America. It is also to show that far too many situations depicted in the Squadron Supreme like, but not limited to, the grandfather's clock, Dr. Spectrum's energy objects, Power Princess's origin, Hyperion's foster parents, and virtually every scene of the heroes using their powers are duplicates of scenes from copyrighted stories printed by DC. In my humble opinion (or even my vainglorious opinion) the characters and events depicted in the Squardon Supreme are so similar to characters and events from old DC stories, that the Squadron stories constitute copyright infringement.
Understand I am not throwing any recriminations around. It is not surprising that the Squadron members are all knock-offs of the JLA. When the Squadron was created it was supposed to ape the JLA.
Roy Thomas created the Squadron Sinister (Hyperion, Nighthawk, and Dr. Spectrum) as a one issue group of super villains in Avengers # 70. It was meant to be a parody of the JLA. Later, in Avengers # 85 and 86 Roy created the Squadron Supreme and repeated the joke, this time with the help of DC. Avengers # 85 and 86 were part of an unofficial crossover between DC and Marvel. At the same time that these books came out, the Justice League of America ran a story in which the JLA fought a super team whose members were all derived from the Avengers. Very much like the recent Teen Titans/DNAgents crossovers. Subsequently, every appearance of the Squadron Supreme has continued the original joke and has usually added new members to further the JLA derivation.
There was nothing wrong with these limited appearance parodies. The copyright law includes a fair use doctrine, which allows limited, one-shot parodies. But the Squadron Supreme goes beyond the scope of limited use or parody. Marvel is engaging in a year long extended use of thinly veiled copies of DC characters in their own cover featured comic. This is not fair use. This is not limited use. This is, I believe, copyright infringement.
And the worst thing is I can't simply dismiss the Squadron Supreme as a derivative rip-off. The stories are well written. The issues being explored are intriguing. In short, I enjoy the series. I even understand that by using familiar simulacra of the JLA, the story gives the reader a false sense of security, before it veers sharply into areas the real JLA would never go. But I don't know that this shock value is worth the obvious JLA rip-offs. I really wish that if Marvel was going to go full blast into the Earth-One Earth-Two shtick anyway, that they told this story with new characters created for the series instead of using characters who are nothing more than limp versions of another company's characters.
As I said, DC should sue, or, at least, seek a cease and desist order. Maybe DC won't win. Maybe the courts will hold that Squadron Supreme isn't similar enough. Maybe DC has just let the Squadron Supreme appear too many times for so long now, that it is too late to sue over them. But DC has to establish the precedent that it will act to protect its characters. It has an example from its own corporate history to show why it should sue.
When EC first started using Alfred E. Neuman as the mascot for Mad, EC was sued by the man who created the "What Me Worry" kid. The man lost. Not because Mad wasn't using his creation without his permission, it was. But Mad wasn't the first to use his creation. Other companies had used the "What Me Worry" Kid, before Mad adopted him. The man hadn't sued any of the other people who had used his creation without his permission, presumably, because these others didn't make any money off of the Kid. Mad, on the other hand, did. The court ruled that he couldn't pick his shots waiting for someone with money. If he didn't actively seek to protect his copyright every time it was violated, he abandoned the copyright entirely and couldn't sue over it.
The same could happen to DC. If DC doesn't sue over the Squadron, then maybe someone else will introduce its version of the Justice Legion of Americans with impunity, because DC has abandoned its copyright. If only to establish the principle that it is not abandoning its copyright, DC should sue.
Besides, what happens if the current crop of pretenders to the JLA title last for about five years, then after a sales drop DC goes back to the original team? Then the new fans will write in complaining that DC ripped off the Squadron Supreme.
#
And now an aside for my own personal pain. Being a lawyer, a columnist, a comic collector, a legal analyst, and an acerbic; I just can't read a comic book these days without thinking of the legal ramifications in the story. Take Superman Annual # 11, "The Man Who Has Everything," for example. I bet you were all amused and even touched, when Superman hid his duplicate bottle city of Kandor in the cabinet, so that Wonder Woman wouldn't find out he already had what she was giving him for a birthday present. Me, I could only think of the law suits Superman must have caused himself. Or did you forget that there's a whole race of little aliens called the SH' STR that has lived in that bottle since Superman # 370?
Can you imagine the cultural and emotional shock that the SH' STR must have felt, when their city suffered first cataclysmic bottlequakes and then a total eclipse? The personal injury suits alone should keep Superman in court for years.
BOB INGERSOLL
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