Intellectual Property: Marvel vs DC or Marvel & DC
Introduction
The comics industry as we know it today has been around for almost 100 years. Superheroes’ as a popular genre exploded after Superman paved the way in 1938. Successes in the superhero genre quickly piled up for two companies at the time. These two companies known as Detective Comics (later DC) and Marvel became the dominant forces in this space. This success spurred the golden age of comics. The golden age of comics was an amazing time for comics as many great superheroes were created. Characters like Superman, Batman, Captain America, Captain Marvel, Wonder Woman, and many others were all created in this period between the late 1930s to the early 1950s. The golden age represented the shift from comics being created from small time studios into two mega-publishers known as DC and Marvel. After the golden age of comics, we entered other periods of commercial success, enrichment, and advancement in the comic book industry. Following the golden age of comics, we entered the silver, bronze, and finally the modern age of comics that we know and love today. Because the development and creation of superheroes was created in waves it is important to know the impact of the systems that helped create it and the impact it had on intellectual property rights.
Superhero Similarities
The anonymous nature of the work for hire system removes liability from the individual writers and artists that create superheroes. The corporate shield protects the individual workers from being sued which removes the penalties involved with intellectual property theft. Because superheroes were developed in waves there were bursts of activity where many of them were developed simultaneously. Due to Marvel or DC reacting to the market or to each other they create superheroes with strikingly similar ideas. These phenomena encouraged lots of companies to be inspired by previous works. I explore this idea by taking a look at some examples of superhero “theft” by gathering cases where superheroes are the same by origin story, abilities, visually or a combination of all three. I analyze all of the data between DC and Marvel by comparing the years each were created along with the extent of inspiration that the second character draws from the source. I came up with some interesting conclusions from the data which I have included in my argument below the data. After looking at similarities between Marvel and DC characters the first thing I immediately discovered was that both Marvel and DC are guilty of copying each other’s intellectual property. I think that there are too many similarities in this collection for this to be written off as a mere coincidence. Surely these two big corporations wouldn’t let another company steal their intellectual property so easily.
Atom (1961) DC {Showcase #34} vs Ant Man (1979) Marvel {Marvel Premiere #47}
The Atom we know today appeared in Showcase #34 (Oct. 1961) which was one of the early (not the first) comics that introduced an Atom with actual superpowers. The Atom is a superhero whose power lies in the ability to shrink down to the size of an atom. Eventually Marvel came out with Marvel Premiere #47 which included a comparable superhero that goes by the name Ant Man. Ant Man’s superpower is the ability to shrink to the size of an ant. Marvel drew some inspiration of the Atom and gave him a different look with a different origin story in order to make it original but most fans can see the obvious parallels.
Green Lantern Corps (1940) DC {All-American Comics #16} vs Nova Corps (1979) Marvel {Fantastic Four #204}
The Green Lantern is the name of a collective group of superheroes created by DC in 1940. Sometimes called the Green Lantern Corps, these superheroes were a sort of intergalactic police force that used magic rings to grant them their superhuman abilities. In Fantastic Four #204 (March 1979) released by Marvel there was a similar interstellar space militia that used magic rings to enforce the law. This group by Marvel was called the Nova Corps and they were similar to the Green Lantern in both origin story, abilities, and even similar appearances due to the shared color of green spandex.
Darkseid (1970) DC {Superman’s Pal Jimmy Olsen #134} vs Thanos (1973) Marvel {Iron Man #55}
DC published Superman’s Pal Jimmy Olsen #134 in 1970 featuring the antagonist known as Darkseid. Darkseid is a bulky villain and one of the most dangerous DC villains’ ever created. Darkseid’s ultimate goal is conquering the entire universe by figuring out the steps to the Anti-Life Equation. Thanos was designed three years after Darkseid donning identical looks sans color and similar motives with the same ultimate goal of taking over the universe. Perhaps unsurprisingly Thanos’s infinity stones represent the most common components of Darkseid’s Anti-Life Equation.
Deathstroke (1980) DC {New Teen Titans #2} vs Deadpool (1991) Marvel {The New Mutants #98}
Deathstroke is a mercenary and a trained assassin named Slade Wilson that appeared in New Teen Titans #2. Deadpool was Marvels answer to Deathstroke and at the time Deadpool was created in The New Mutants #98 and was pretty much a carbon copy of Deathstroke. They were both mercenaries that covered their entire bodies with armor, had the exact same abilities, and even basically have the same name. Marvel named Deadpool Wade Wilson which leads me to believe that it was influenced by DC’s Slade Wilson who arrived a decade earlier.
Aquaman (1941) DC {More Fun Comics #73} vs Namor (1939) Marvel {Motion Picture Funnies Weekly}
DC actually copied Marvel on this one when they released Aquaman in More Fun Comics #73. They got their idea of an underwater superhero with super strength, agility, and the ability to communicate with sea creatures all from Marvel’s Namor, which was released a couple of years before and included all of the similarities listed above.
Swamp Thing (July 1971) DC {House of Secrets #92} vs Man Thing (May 1971) Marvel {Savage Tales #1}
Swamp Thing and Man Thing are extremely influenced by each other and I think that this is probably the best overall example that proves that Marvel and DC plagiarize each other Swamp Thing and the Man Thing have similar names, looks, origin story, and were only released about three months apart.
Work-For-Hire
Now that I have proved beyond a reasonable doubt that Marvel and DC have both infringed on each other’s’ property I am here to explain why it might have happened. It is necessary to see the difference of what happens to one another when intellectual properties are copied. One of the defining characteristics of Marvel and DC is that built their businesses on work-for-hire empires. Two of the pioneers of this type of work contract for the comic book industry were Donenfeld and Liebowitz. When they bought out the majority control of Detective Comics they turned it into a more “viable publishing operation” named DC (Wright). The heads of DC largely controlled the publications and the bylines that are included in them. This control encouraged the use of pseudonyms and publishers also liked this trend of using pseudonyms because it helped hide inconsistencies created by high staff turnover (Wright). Artists also helped popularize these systems by using aliases because the early stages of comics and the superhero genre were seen as a lesser art and many artists didn’t want to tarnish their reputation (Wright). The anonymity that these systems provided combined with low pay made it easy for creators of comics to be shielded from liability. The popularity of this work-for-hire system is important because it has many implications in the areas of intellectual property. If we contrast these cases of intellectual property plagiarism to cases that have different publishers we can also get a more accurate sense of the true relationship between Marvel and DC.
Work-For-Hire Continued…
Two individuals who learned about the work-for-hire system the hard way were known as Jerry Siegel and Joe Shuster. These two cartoonists developed a superhero whom they thought would be popular with young readers but it was hard for them to get any support in the newspaper syndicates (Wright). Jerry and Joe were rejected time and time again because the newspaper companies failed to see the appeal in their creation at the time. Siegel and Shuster were determined to see Superman in a proper newspaper strip so they simply bided their time by doing miscellaneous freelance work for new comic book publishers (Wright). Eventually a new comics company was working on a comic by the name Action Comics for their publishing company called DC. Writers and graphic artists were payed so little and Siegel and Shuster couldn’t hold on forever. They needed money and Superman kept getting rejected by newspaper publishers so Siegel and Shuster decided to sell Superman to this newly-formed company named DC. They didn’t want to sell Superman but in the 1930s money was hard to come by and Superman netted Siegel and Shuster $130 (Hughes). After Superman evolved and served DC, Siegel and Shuster objected to Superman uncontrolled and unrestricted use and they wanted to receive royalties for what was their creation (Moore).
Main Argument
With all of the similarities employed in between Marvel and DC comics why aren’t there huge lawsuits that one would expect to see after this many different counts of intellectual property infringement? Consider the case in a different context; Apple sued Samsung for billions of dollars based one phone (Samsung Galaxy S2) being similar to their iPhone 3G. Apple actually had the infringing phone banned in some countries and received billions of dollars from the settlement. The lack of litigation in the case of Marvel and DC is not some strange coincidence. Marvel and DC are no strangers to the courtroom because they have both sued small time publishers and even individuals with unnecessary lawsuits. The reason why Marvel and DC seem to be working together is because they are. They collude in order to keep the industry as profitable as possible for only the two of them. Marvel and DC effectively created a superhero duopoly. They are able to retain their control on the market by opting not to directly attack each other. For example, anything involving Brainiac in film has to be completely avoided by DC because of Marvel’s recent Age of Ultron movie. Despite the fact the Ultron is a rip-off of Brainiac, DC still respects Marvel enough to confine Brainiac to another medium like comics or a TV show (or not at all) instead of creating a movie featuring Brainiac. The idea that these two industry giants work together in some capacity is odd for the business they are in. Imagine Apple and Samsung taking turns releasing their phones each year in order to capture more of the market instead of competing directly against each other. It is an odd practice but I would be willing to bet that Darkseid, Grundy, and Dr Fate and many others won’t be getting a feature in a film anytime soon because Marvel’s versions of these characters are all in the movie spotlight with Thanos, Hulk, and Dr Strange respectively. This phenomenon of non-competing where you don’t have to is a profitable by-product of the comics’ industry in general. By giving us two versions of the same superhero Marvel and DC are essentially “fixing matches” where the loser will go on to win one in the future.
Main Argument Continued…
The question is how Marvel and DC collude with each other and why they do it. I find it very unlikely that Marvel and DC executives meet and collude in person with some type of official capacity. Based on all of the lawsuits I have examined I have noticed that most of the lawsuits and cases involving intellectual property do not involve Marvel and DC suing each other. It is much more common for DC or Marvel to sue against third-party publishing houses like Fawcett Publications or even individuals like Jerry Siegel and Joe Shuster. By acting to collectively destroy the competition DC and Marvel are essentially colluding in order to marginalize smaller publishing houses so they can remain a duopoly who retains most of the profits in the industry. Another interesting trend on top of that I noticed in my collection of works is the idea that the first version of a hero isn’t always the more popular version. Now that I think about it makes sense that these two companies aren’t at war with each other — most of the superheroes (or villains’) aren’t as valuable as the other. For example, it doesn’t make sense for Marvel to get into a huge lawsuit with DC because DC copied a wildly unpopular character and profited from it. Then I realized what Marvel and DC essentially created — a cartel. If you don’t believe me then check out this definition of cartel from Merriam Webster: “a combination of independent commercial or industrial enterprises designed to limit competition or fix prices” (Merriam-Webster). The Marvel and DC duopoly don’t fix prices but they definitely agree to limit competition by creating barriers for them as well as tying them up in intellectual property lawsuits.
These two entities don’t even attack each other because it would be bad for business but they have no problem jointly sending a cease-and-desist to a small time publisher called Cup O Java Studios simply because they used the word superhero (Roth). Apparently DC and Marvel collectively have the generic term “superhero” trademarked and the small time comic violated their trademark by naming their comic A World Without Superheroes (Roth). Marvel even had the audacity to make a 68-year old man pay them $17,000 for saying he created Ghost Rider even though he did (O’Neal). Of course DC doesn’t fare much better when it comes to picking on small-time publishers by unnecessarily taking them to court. DC took Bruns Publications (known as Bruns at the time) in order to sue them for their depiction of Wonderman. DC exclaimed that this Wonderman infringed on its intellectual property known as Superman so they decided to sue them in order to stop production of the publication of Wonderman (Hand). This wasn’t the only instance of DC suing others from infringing on its Superman intellectual property. They sued Fawcett Publications in a long-lasting legal battle known as National Comics Publications v. Fawcett Publications. DC sued Fawcett over their character known as Captain Marvel. DC claimed that the character was too similar to Superman and won the suit which effectively dissolved Fawcett and led to the cancellation of all of its superhero properties (Chase). What if DC is just really protective of their valuable intellectual property like Superman? I would like to believe DC is just overprotective but superheroes created my Marvel that bear resemblance to Superman (Captain Marvel, Samaritan, Hyperion, Gladiator, etc.) never seem to prompt DC to sue.
Implications for the Industry
A duopoly substantially increases the barrier to entry and substantially lessens the competition. If we study other duopolies we can learn of some very interesting pros and cons to this type of organization structure. A very popular duopoly that is worth noting can be found in the United States government. The entire government is run by the two party system which alternates power between the Republicans and the Democrats. A benefit of the two party system is that parties try to stay moderate and don’t divulge into one-issue parties in order to capture as many voters as possible. A negative aspect of the two party system is the there isn’t enough competition. It is very possible many voters like half of the Republican and half of the Democratic views for example.
A benefit of the Marvel and DC duopoly is that they ultimately have more resources then they would have if there were more competition. This can be a benefit to society because they have enough resources in order to create and make things that they wouldn’t have been able to otherwise. For example, Marvel and DC do have most of the superhero-generated profits but now they can afford to create blockbuster movies with amazing special effects that appeal to segments of the market that would never be able to appreciate comic books or graphic novels. Another benefit of low competition is the idea of being able to have the resources to take expensive chances in the industry. For example, Marvel’s risk of funding Jessica Jones as a Netflix series would have been an expensive mistake had it flopped. Smaller companies wouldn’t have been able to risk something so extreme and expensive and we would be out of a fantastic series that touches on themes and tropes in ways that no other series would successfully be able to do.
Now there are many reasons why having an entire industry ruled by two large corporations can be a bad thing. The superhero universe is owned by Disney (who owns Marvel) and Time Warner (who own DC). If we lived in a world without Marvel and DC we would certainly live in a world of more superheroes and more variety of these superheroes that target specific audiences. There would be more companies that would get to compete with each other which would lessen the barriers to entry and give more people the opportunity to share their stories. This competition could very well create wonderful scenarios like darker and grittier characters that succeed in using reality-based plot devices. Furthermore, one of the more important implications of this scenario is that the studios would fight for the best talent. The increased competition in the industry would have more than likely dismantled the unfair and unjust work-for-hire system. This paired with the variety in places to work in the superhero industry creates a much better chance for artists and writers to receive fair compensation for their work.
