Jan 12 2009

The copyright on “superhero”

Published by at 11:26 pm under Navel-Gazing,Superhero Nation

Fevered rumors occasionally surface that Marvel and/or DC have copyrighted the word “superhero” and plan to sue anyone that uses them.  That’s obviously bunk.  However, a more credible blogger claims that Marvel and DC have jointly trademarked the term superhero and are the only ones that can use it when naming a comic book.  It is true that they have the trademark, but there is virtually no chance that it would hold up in court. (Whether or not your publisher is actually willing to risk a case is another question, though… it’s cheaper to come up with a new title than go to court).

1.  “Superhero” has unquestionably entered common usage.

2.  Superhero is a brand-neutral term.  According to one source, “one of the main attributes of a trademark is that it helps the consumers to identify a product of a particular company and to distinguish it from other identical or similar products provided by competitors.”  No one uses the term “superhero” to distinguish Marvel characters from comparable Dark Horse characters.  To the contrary, independent characters like Hellboy, Jake Long and Sailor Moon are commonly described as superheroes even though they aren’t DC or Marvel.

3. According to Webster Dictionary, the term “superhero” predates the birth of DC’s parent company (National Allied Publications) by 17 years and Marvel’s parent company (Timely Comics) by 22. This isn’t highly relevant, but it further suggests that the superhero term has never been strongly related to the DC or Marvel brand.

53 responses so far

53 Responses to “The copyright on “superhero””

  1. The ReTARDISed Whovianon 13 Jan 2009 at 12:27 am

    There are a tonne of characters who could be called superheroes that have nothing to do with Marvel or DC. Astro Boy, Danny Phantom, Kim Possible (sort of), American Dragon, the Incredibles, the Iron Giant, Doctor Who (sort of), Captain Jack Harkness (sort of) and the list goes on!

  2. B. Macon 13 Jan 2009 at 12:37 am

    That is definitely true. Although I have to admit that I’m not sure about Captain Jack, heh heh.

  3. t3knomanseron 13 Jan 2009 at 5:43 am

    NPR and the creators of Superhero Happy Hour may disagree.

  4. The ReTARDISed Whovianon 13 Jan 2009 at 5:49 am

    I love Doctor Who because it can be so strange but so epic at the same time. I’m not sure if anyone here has seen it, but this is the first episode of the rebooted version.

    http://www.youtube.com/watch?v=2EeQiVRRyoY (Part 1)

    http://www.youtube.com/watch?v=msdjDRJF6PI (Part 2)

    http://www.youtube.com/watch?v=RDnsjKG6XH0 (Part 3)

    http://www.youtube.com/watch?v=cYLdfrMYm1g (Part 4)

    http://www.youtube.com/watch?v=iL_3s-EFkXc (Part 5)

  5. The ReTARDISed Whovianon 13 Jan 2009 at 6:03 am

    http://en.wikipedia.org/wiki/Superhero

    “The two-word version of the term is a trademark co-owned by DC Comics and Marvel Comics.”

    What that sentence says is that they own the two word version, so if we call them “superheroes” or use the hyphenated version “super-heroes”, we should be unsueable. I like “superhero” better, anyway.

  6. B. Macon 13 Jan 2009 at 11:50 am

    Marvel and DC sent a cease and desist letter and the SHHH creator complied. SHHH didn’t actually lose a court case. I think they had a winning case, for the reasons above.

    I assume that the SHHH people thought that the benefits of protecting their name were too small, or they lacked the money to do so. Sometimes people back down even if they have a winning case because the cost of fighting the case would be too great compared to the benefits.

  7. Holliequon 13 Jan 2009 at 12:06 pm

    RW: I’m a Doctor Who fan, too! I’m not too sure about Matt Smith as the new Doctor, though. Mind you, I haven’t seen his acting. I just don’t like his hair. XD

  8. B. Macon 13 Jan 2009 at 1:37 pm

    Oof.

  9. t3knomanseron 13 Jan 2009 at 2:21 pm

    @B.Mac: Yes, I know they settled out of court, but even winning court cases is expensive.

  10. B. Macon 13 Jan 2009 at 3:14 pm

    Yeah, I figure that the outcome of the case is almost immaterial. I am fond of the name Superhero Nation, but if I had to put a pricetag on it I could probably get a freelancer to come up with something comparable for $200. If I were interested in a compromise solution, I could have Marvel/DC pay me $200 for an agreement not to use the name.

    However, the reason I’d go to court is because I think the opportunity to get sued presents an enormous opportunity to generate cheap publicity at just the right time (after issues are available for purchase). Ultimately, that’s worth more than any name could realistically do for a series.

  11. Davidon 13 Jan 2009 at 3:23 pm

    so im confused is the tearm superhero or superheros illegiel to use or not?

  12. Tyon 13 Jan 2009 at 3:59 pm

    This is just what I was looking for (awhile ago, but all I found was people saying it WAS trademarked) So i started looking for another word, and I honestly couldn’t think of anything else that seemed impressive.

    The thing I’m writing, I just titled Legion of Super Heroes (I am fully aware it is a DC title), I’m pretty bad at coming up with names, so I just write whatever comes to mind, and always change it later (at the time I was watching 300, – ancient fights – ancient romans – roman legions – a Legion was the basic military grouping of romans)

    But what about characters? Could Marvel or DC sue if I had a character who has the poer of Magnetism? (Magneto) or a bald physcic (Xavier) Iceman and so on. I think Marvel and DC have a lock on the whole industry, especially on superhero powers. I used the ‘List of Superpowers’ from this site that talked about all the different powers, but still I think everysingle power on that list is a power that some MArvel or DC character has. (except for spitting acid)

    And of course B. Mac’s ‘New SuperPower Post’ about blindness. But I already kinda have that, as a side effect for one of the hero’s powers. When he uses his power, his vision blurrs. And at one point, he uses it so much, that he goes permanently blind. Seriously, none of this Daredevil ‘I can kind of see’ stuff. Big black glasses, white stick, and tripping over stuff blindness.

  13. Davidon 13 Jan 2009 at 4:36 pm

    i know this wont be spelt right but what about super saviers or super savers or something like that

  14. B. Macon 13 Jan 2009 at 5:05 pm

    OK. Umm, it is trademarked and Marvel/DC is free to send you a cease-and-desist letter asking you to stop using the word “superhero” or some obvious variation like “super-hero” in your title. If you continue to use superhero in your title anyway, they can sue you. However, if they do sue you they will almost certainly lose.

    However, getting sued is an expensive process even if you win. Your publisher might not want to deal with that hassle. Consequently, your editor may ask you to change the title. If your preferred title has the word “superhero” or a very close variation, I’d recommend having an alternative ready to go in case your editor says that it’s too legally risky.

  15. B. Macon 13 Jan 2009 at 5:23 pm

    I’m not a lawyer, but I wouldn’t worry about getting sued because of plot elements like the powers you use. Even if you use a power that is extremely rare (like the ability to paint the future), that lawsuit is probably going to go nowhere. Additionally, some Marvel characters are blatant copies of DC heroes (and vice versa), and very little has come of that legally. (Readers are more likely to punish you than the courts, though).

    Character designs are a bit more sensitive (like Superman vs. Captain Marvel), but even that sort of lawsuit is very rare.

    Generally speaking, the publisher handles legal stuff. If your editor thinks there’s a potential problem, he’ll let you know. Other than that, I wouldn’t worry about it.

  16. Davidon 13 Jan 2009 at 5:31 pm

    i dont think marvel are to worried about look alikes they had superman and captain marvel in the same show at one point JLU

    mind you is is diffault comeing up with chraters that dont look like anyone else
    i mean marvel have over five thousend heros alone not to menction all the japanese mangas as such so i think they get chraters that bare resembles to others often and just ignore it i think if u steal the name its a diffrent story however

  17. B. Macon 13 Jan 2009 at 5:42 pm

    Yeah, Captain Marvel has since become a DC character. Weird world, isn’t it?

    As for names, yeah. It can be tricky. For example, “Agent Orange” is actually already taken, but I figure that I’m safe for a few reasons that are not particularly interesting. (They would need to be able to claim ownership of the term “Agent Orange,” which seems implausible because it was first popularized by the government and media). However, if I tried naming someone Spiderman I would get sued hard. Spiderman is undeniably a term fully owned by Marvel Comics.

    I’ve also since learned that Captain Carnage was used as a throwaway character in Watchmen. So I’ll probably end up changing that.

    A major criterion is the risk of confusion. To be honest, I don’t think that one minor protagonist that’s a wacky mutant reptile is likely to be confused for a minor villain that’s in a series written for a mostly different audience.

  18. Tyon 13 Jan 2009 at 5:43 pm

    Well I’m going for a darker tone, I want them to be good, but they screw up alot, so I don’t think Super Savior would be good.

    I think the best bet is to try to avoid it as much as possible. When the public speaks about them they would most often use their nicknames (i.e. Ty is nickname for Tyler) or use the ‘team name’ or just simply using the word ‘Hero’

    Somebody mentioned getting a lawyer who specialises in entertainment laws. (I think it’s mostly for movies and tv shows, but still something anyone who is worried should consider)

    I remember that episode of JLU with Superman and Marvel and the plot was that they were fighting each other. Great episode.

    What I did with a few characters where I noticed similarities with DC/Marvel was I split up the powers. I had a character that was a big muscular guy, ferral/beast like and able to heal himself. (wolverine) so I added the healng powers as a secondary power to another character, and kept the one guy as a ferral character. Which actually is like beast, but as long as I avoid a beastlike appearance, and go for a more ‘clean cut’ type of human, it won’t be as noticeable.

  19. Davidon 13 Jan 2009 at 6:08 pm

    well it could be a wise chouise only time will tell

  20. C.R.on 15 Jan 2009 at 9:08 am

    I read some comics from Marvel that referred to SPBs–Super Powered Beings. Um, SPEs? Super Powered Entities?

    @B.Mac. Ermm. Publicity at the expense of one of the powers that be? I would tread softly there. DC, Marvel… you wouldn’t want to burn too many bridges there, methinks.

  21. B. Macon 15 Jan 2009 at 9:21 am

    Yeah, I figure that if I want to make “the big time” in comics books I’d probably end up working for one of them, so it would be burning bridges. But I don’t really see comic books as a full-time career for me. Five years from now, I’d like to be teaching. (Did you know I’m into political science and creative writing?) Fortunately, I don’t anticipate that annoying Marvel or DC would affect my academic hireability very much.

  22. Davidon 15 Jan 2009 at 9:52 am

    im hopeing to make it with comics my new graphic novel idea and my novel idea and im gonna try and get that novel to a film script to

  23. B. Macon 15 Jan 2009 at 10:24 am

    Hmm, good luck with turning the novel into a film script. That’s a very ambitious goal. The books that get turned into movies tend to be runaway best-sellers (Harry Potter, LOTR, Eragon, the Narnia series, Twilight, etc).

  24. Ragged Boyon 15 Jan 2009 at 11:03 am

    A film, ay, well if you need a talented and handsome young actor, look me up.

  25. Ragged Boyon 15 Jan 2009 at 11:08 am

    Although, animes and mangas don’t usually have alot of black characters, and when they do it’s usually some big-lipped, afro or dread head, breakdancer.

  26. Davidon 15 Jan 2009 at 11:12 am

    And they say the film industry isn’t racist, lol.

  27. Ragged Boyon 15 Jan 2009 at 11:23 am

    Once I’ve acted in a few blockbusters, I’ll probably try my hand at writing and directing, I am very pushy. I suspect Adrian’s story would make for an ok superhero movie, but I would want something that could at least come close to the popularity of TDK. I’m really trying to extract the central formula that made TDK so popular.

    As of now, all I can come up with is an existing fanbase, star performances, and evocative storyline (I wonder if its allusion to The War on Terror had an effect). But if that was the formula then all of the other superhero movies should have been just as good.

    What is it?! What made TDK better than the rest?

    I think I first have to come up with the formula that makes a memorable, interesting movie, then finding out how to apply the superhero criteria without losing the basis of my formula.

  28. Davidon 15 Jan 2009 at 11:25 am

    What’s TDK?

  29. Ragged Boyon 15 Jan 2009 at 11:26 am

    The film industry isn’t racist, it’s the anime/manga industry that’s racially oblivious, in my opinion.

  30. Ragged Boyon 15 Jan 2009 at 11:27 am

    TDK = The Dark Knight

  31. Davidon 15 Jan 2009 at 11:31 am

    ahh right cool and well i think my film idea will be a big hit

  32. Holliequon 15 Jan 2009 at 11:38 am

    I’d like to add to TDK formula. I think the Joker was definitely my favourite part of that movie. So, “awesome villains”.

  33. Bretton 15 Jan 2009 at 11:44 am

    @ David, TDK = The Dark Knight

    @ Ragged Boy, out of curiosity, do you think that you could pull off Alex’s role?

    Btw, as long as we’re discussing hypothetical films, I like Denzel Washington for Xavier, a Black Australian for Raphael (yes, he must be an Aussie.), and Ian McClellan or Liam Neeson for Headmaster Gabriel.

    Maybes:

    Tanveer K. Atwal (Sati from Matrix Revolutions) for Karen. Mind, I have never seen Matrix Revolutions, i’ve only seen her picture.

  34. Ragged Boyon 15 Jan 2009 at 12:02 pm

    Alex, an overconfident, obnoxious 14 year old with a good sense of proper grammer and diction, I could be him. I suspect Alex’s skin tone would be a lighter, more indian color than mine though and his hair would be curly, not sheepish like black hair. But as for characterization, I could get his personality down, although I don’t know much about his good traits.

  35. Ragged Boyon 15 Jan 2009 at 12:11 pm

    I don’t see why people say acting is so difficult, it really isn’t. I think it just takes logical thinking and good analysis of the character. I’m not a method actor, but I can understand easily how a person is speaking and being portrayed when reading a script. I really try not to be conceited about my acting ability because I’m scared that I’ll lose it if I get too boisterous. But I’d say I’m a really good actor, for my model productions talent portion I did a monologue that I wrote everyone loved it, then I topped it off in the final runway competition. Star Performance. I think with a lucky break I’d could have a pretty successful career in acting. I’ll be an actor/model/writer/sex symbol.

  36. Bretton 15 Jan 2009 at 12:13 pm

    assertive, logical and analytical, slightly curious (comes with his intelligence), just (he draws a bold line between right and wrong and won’t cross it, no matter how squiggly it is), generally honest, dedicated & driven, unwittingly charming, well-spoken,

  37. B. Macon 15 Jan 2009 at 12:15 pm

    The anime industry is not very fond of black people. When Brock in Pokemon hits on every female that moves, I suspect it’s because the Japanese writers think that black people are really like that. However, I think that American media have generally gotten a lot better in the last twenty years.

  38. Davidon 15 Jan 2009 at 12:36 pm

    I think Pokemon is pushing its luck now, possibly. What do you think?

  39. B. Macon 15 Jan 2009 at 12:39 pm

    “I don’t see why people say acting is so difficult, it really isn’t. I think it just takes logical thinking and good analysis of the character.”

    I think that what’s difficult about acting, particularly in Hollywood, is that acting talent appears to have frighteningly little to do with how far that person will go. Among the A and B-listers, for every wildly skilled but not particularly attractive actor (like Anthony Hopkins), there are a hundred Hayden Christensens and Keanu Reeves. I think it’s even worse among actresses. For every Julie Andrews or maybe Natalie Portman, there are a bajillion Angelina Jolies.

    So, if you look like Will Smith and you know the right people, you could do very, very well in acting. If you were born phenomenally good-looking, that’s not so difficult at all. ;-)

  40. B. Macon 15 Jan 2009 at 12:52 pm

    “I think Pokemon is pushing its luck now, possibly. What do you think?”

    Yeah, the bubble has definitely burst. I brought up Brock because he’s probably the best-known black character in anime.

  41. Holliequon 15 Jan 2009 at 12:56 pm

    I think the Pokemon anime has definitely run it’s course, yeah. I still enjoy the video games very much, though.

  42. Davidon 15 Jan 2009 at 1:27 pm

    YU-Gi-Oh is another one that has run its course. The original and GX were good, but now they have Duel Runners. What’s that about? What I love about anime programs is that you can spot little mistakes in each episode. It’s fun to do.

    Have any of you spotted any mistakes in any anime programs?

  43. Holliequon 15 Jan 2009 at 1:43 pm

    Too many to mention. But they’re produced really quickly, so that understandable. Pokemon was really fun for my eight-year-old self, though.

    If you want to see beautiful animation, try any film by Hiyao Miyazaki. He’s a brilliant director, and all his films are gorgeous (I’d recommend Spirited Away and Howl’s Moving Castle, if you’re interested). I wouldn’t call them overly child-friendly, though.

  44. Davidon 15 Jan 2009 at 1:52 pm

    iv seen spirited away i loved it

    a few where shown in teen titans

    and the incredibel hulk

    in return of the best part two the part where hulk was trapped in glass tube and betty one moment was bare foot then had boots then back to bare foot and the hulk was diffrent to

  45. Ragged Boyon 15 Jan 2009 at 3:34 pm

    Spirited Away was pretty interesting.

    Brock’s a black guy? I thought he just had a really good tan.

    A gross central theme in alot of anime is incest. Girls always LOVE their big brothers.

    Afro-Samurai and Gantz are probably my favorite animes, they’ re refreshingly dark. They are certainly not child-friendly though, especially Gantz.

  46. Davidon 15 Jan 2009 at 3:50 pm

    id love to know the Anime your watching lol

  47. B. Macon 15 Jan 2009 at 4:06 pm

    Hmm. I can’t speak for RB, but interested in getting started on the Prince of Tennis at some point.

  48. Holliequon 15 Jan 2009 at 4:57 pm

    I know some Prince of Tennis fans. Deathnote and The Melancholy of Haruhi Suzumiya are supposed to be good too (I enjoyed the latter when I watched it).

  49. Davidon 15 Jan 2009 at 5:07 pm

    iv got death note and bleach is gd as well

  50. B. Macon 15 Jan 2009 at 5:34 pm

    My brother once attempted to explain to me that the Bleach manga has something like 30 recurring characters. Sweet Jesus. That’s as many as the first three seasons of Heroes and the five seasons of Justice League combined.

  51. Davidon 15 Jan 2009 at 5:48 pm

    And yet it works. The guys who made it must be veterans and geniuses.

  52. Cameron Reillyon 11 Jul 2014 at 11:49 pm

    Uh yeah. Total bunk.

    http://www.blastr.com/2013-2-1/marvel-and-dc-sue-small-publisher-over-using-word-superhero

  53. Cameron Reillyon 12 Jul 2014 at 12:27 am

    Sorry you’re right. The suit was over a title. My bad.

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