Among the latest entries in the quickly expanding catalogue of blockbuster movies about comic book characters are Marvel’s Captain Marvel and DC’s Shazam!, both of which have generated hundreds of millions of dollars at the box office this year. Given the present financial success of these characters, it may come as a surprise to fans that Captain Marvel and Shazam have a complicated and intertwined history, including a legal battle that lasted more than a decade but was over before most current fans were even born.
When Jerry Siegel and Joe Shuster created Superman, who made his debut in Action Comics #1 on April 18, 1938, they unleashed what would become a new movement in the comic book industry: superheroes with superpowers. Indeed, within months of Superman’s entry into the public eye, a quickly increasing number of superheroes began making their appearance in various comic books.
Fawcett Comics published Whiz Comics #2 in late 1939, introducing the world to Billy Batson, a young orphan with the ability to transform into the superhero Captain Marvel by saying the magical phrase “Shazam!” But there were more than a few similarities between Captain Marvel and Superman, including boots, capes, and overall physical appearance, along with several notable traits and skills such as invincibility, extraordinary strength and speed, and the ability to make giant leaps and even fly. Because of these similarities, Detective Comics (now known as DC Comics) filed a copyright infringement suit against Fawcett Comics, which began a 12-year legal battle that would involve multiple companies and a name well recognized by the legal community.
The resulting trial did not begin until seven years later, in 1948. While the trial judge did find that Captain Marvel was an illegal copy of Superman, Fawcett Comics was the prevailing party at trial because the judge also found that DC Comics (National Comics at the time) had abandoned the Superman copyright by neglecting to place a copyright notice on several comic strips. National Comics appealed to the U.S. Court of Appeals for the Second Circuit, and in 1952, Judge Learned Hand ruled in favor of National Comics, finding that the Superman copy was valid and affirming that Captain Marvel was an illegal copy. The parties subsequently settled, and that was the end of Captain Marvel. But as often happens in the comic-book world, superheroes are rarely finished for good.
In 1967—decades before becoming the multibillion-dollar empire that it is today—Marvel Comics made its entrance onto this scene by trademarking a character named Captain Marvel, the heroic alias of the alien Mar-Vell (there would be several more iterations of the character before Carol Danvers assumed the role). In 1972, DC Comics bought the rights to the Fawcett Comics superheroes, including the original Captain Marvel. Because of the Marvel trademark, however, DC Comics could not call Captain Marvel by that name. DC thus decided to call the superhero by the magic phrase that turned Billy Batson into Shazam.
The intertwining history of the original Captain Marvel (now Shazam), the new Captain Marvel, and Superman is an interesting story in its own right with many twists and turns, only a few of which are touched on here. The legal saga is often a subject in law school copyright classes and highlights the tensions between plagiarism and inspiration. And it’s fascinating to wonder how different today’s pop culture would be if Superman, Shazam, or Captain Marvel met his demise in the real world in the first half of the 20th century.
Justin Wagner, Bob Cumbow, Vanessa Wheeler, and Ken Lizzi, general counsel for Dark Horse Comics will be speaking as part of an IP lawyers’ Q&A panel at Rose City Comic Con on Friday, September 13, 2019. For more information and to register for the convention, click here!