Episode 1337 Talkback: A Comics Consultation with Joe Sergi

Pants

We check in with our legal expert Joe Sergi to update us on some recent comic book related legal matters. We discuss the Superman creators heirs' copyright case, Frederic Wertham, Stan Lee Media, the Super Barbershop, Al Simmons and Spawn and much more. (1:02:22)

Listen here.

alienal

Very interesting episode. It's good to be reminded that the stuff we love was made to make money and that companies/people fight over the right to own it or use it. I certainly might be interested in his book.

mguy1977

Another great episode of comic book legal stories & outcomes. Thanks Joe for all your hard work in preparing for the episode.

Matthew

luke52

I love these episodes with Joe. So interesting.

JoeSergi

Thanks for the kind words guys.

I hope i didn't mispeak about anything. After the show, I actually looked up the "Doctor Quarter" thing to make sure he wasn't Dr. Nickle or Dr. Dime. Turns out I got it right--Wertham was known as "Doctor Quarter" in Harlem.

BTW: Someone told me that the Wertham Exhibit has since closed in Vegas. So, if you are in the area, you will just have to make do with gambling, show girls, and alcohol (and not comic book censorship).

And, given it was the end of the show, I may have butchered the Ryan Matheson story. So here it is in his words (and some of mine):

http://cbldf.org/ryan-mathesons-true-story-of-defending-manga-in-his-own-words/

http://cbldf.org/2012/03/ryan-mathesons-personal-statement/

JoeSergi

After checking my email and facebook messages, some people asked if I was serious about Joe Shuster being forced to do porn after being booted off Superman. (One person accused me of being in poor taste and feared people might think I was serious.)

I cannot tell a lie: Cher did NOT open for Frederic Wertham in Vegas.

However, Joe Shuster did draw porn (which contains characters that look very similar to his Superman comics). In a strange coincidence, the books were tied to a murder case where Wertham was called as an expert witness to determine whether the criminals could stand trial. (Wertham never knew that Shuster drew the book.) Based on Wertham's testimony, the book was eventually banned.

I wrote about it for CBLDF (which means that it should be safe for work) at

http://cbldf.org/2012/10/the-incredible-true-story-of-joe-shusters-nights-of-horror/

I also was able to get a copy of two of the books (which really aren't that dirty by today's standards). Sadly, this put me on all kinds of raunchy mailing lists.

John_Steed

@JoeSergi : Thanks for the infotainment. ^:)^

JDick

Love these episodes. I'm in the middle of that Marvel The Untold Story book and this stuff is so strange how loose, for lack of a better term, the publishing world and its practices used to be (and it wasn't even that long ago).

Matt

Truthfully, I dread hearing about the Superman lawsuit. It seems this is something that will never end. There is a part of me that wishes DC would just kill off the character for a decade, reduce his role for a decade, or fuck him up so much copyright issues won't matter. It really seems to be tying everyone's hands with this character...good thing I always preferred Batman!

M

danGP

Great episode. I love it when we get to see behind the curtain.

LibraryBoy

@JoeSergi, they let you just straight-up photocopy Wertham's original papers? Man, my archives classes' professors just cried out in anguish and they're not entirely sure why! :))

JoeSergi

Some (actually a lot) They had most of them scanned. There were some that I took pictures of with my phone. :-)

LibraryBoy said:

@JoeSergi, they let you just straight-up photocopy Wertham's original papers? Man, my archives classes' professors just cried out in anguish and they're not entirely sure why! :))

RepoMan

Well done! A pleasure to listen and learn on all topics covered.

UnknownFanboy

I picked up a copy of Seduction of the Innocent on EBay for $150 w/o cover...got maybe it a quarter through the book ( best read with a stiff drink) I will have to dig it out of the Storage Unit and see if it has the bibliograpghy

LibraryBoy

A small publisher (Amareon House, maybe? That sounds kinda right.) did do a limited reprinting of SotI about a decade or so back, bibliography and the center spread of sample images included. Pretty sure it, too, is now out of print, but would probably be cheaper to find than the original. I used to have a copy of this edition, but have since sold it (interesting read, but terrible science!).

Kilmarock

Great episode! Thank you for the update on all these cases!

sandman

Matt said:

There is a part of me that wishes DC would just kill off the character for a decade, reduce his role for a decade, or fuck him up so much copyright issues won't matter.
M

Didn't they try that by killing him off and then bringing him back as the Red and Blue electro duo?

Matt said:

...good thing I always preferred Batman!
M

Something we can agree on.

sandman

I don't think that there is any way that Marvel and DC should be allowed to own the term "super-hero." I see that as a general term for a character classification and for a genre type. Marvel and DC may have the most popular and most well known characters in that class, but that doesn't mean that they should be able to own the term. If thats your qualification, then are you going to say that Clint Eastwood is the only person who can use the term 'cowboy'? Is J. K. Rowling the only person who can use the term 'wizard'? I think this one is ridiculous.

Chuck_Melville

sandman said:

Is J. K. Rowling the only person who can use the term 'wizard'?

Of course not.

TSR owns that one.

sandman

Chuck_Melville said:

sandman said:

Is J. K. Rowling the only person who can use the term 'wizard'?

Of course not.

TSR owns that one.

Touche. :)

Nick

I'm surprised no one photocopies Seduction of the Innocent and torrents it. If it goes for so much why haven't the pirates gotten on it?

dubbat138

Nick said:

I'm surprised no one photocopies Seduction of the Innocent and torrents it. If it goes for so much why haven't the pirates gotten on it?

It is out there. I had someone send me a PDF of it last year.

JoeSergi

If you want to read the entire book, it is available at. http://www.dreadfuldays.net/soti.html

(The site for educational research purposes and hasn't been asked to pull it down).

I've read it a couple of times in writing various articles. But, I wanted a copy for nostalgia. :-)

Nick said:

I'm surprised no one photocopies Seduction of the Innocent and torrents it. If it goes for so much why haven't the pirates gotten on it?

JohnnyWI

sandman said:

I don't think that there is any way that Marvel and DC should be allowed to own the term "super-hero." I see that as a general term for a character classification and for a genre type. Marvel and DC may have the most popular and most well known characters in that class, but that doesn't mean that they should be able to own the term. If thats your qualification, then are you going to say that Clint Eastwood is the only person who can use the term 'cowboy'? Is J. K. Rowling the only person who can use the term 'wizard'? I think this one is ridiculous.

I completely agree. I couldn't believe it when I heard that. Ridiculous. Sure, when I hear the word "Superhero" (uh-oh. am I in trouble now?), I think of Marvel and DC characters. But if I see a book/comic book with other peoples characters, and the word "S****h***" is used, I don't think "OMG, how can they call them S****h***s? That's not Superman/Batman/Wolverine?etc,etc.".

And on that same topic, one of the shows sponsors "Superherostuff.com; do they have permission to use that name, or are they going to be in trouble when Marvel or DC finds out?

JohnnyWI

Though, I suppose since they are hawking Marvel and DC merchendise, the companies probably already know about the site. I'm wondering if they have to pay to use the word superhero in their business title, or if selling the merchandise, and putting profit in Marvel and DCs pocket is enough.

JoeSergi

JohnnyWI said:

sandman said:

And on that same topic, one of the shows sponsors "Superherostuff.com; do they have permission to use that name, or are they going to be in trouble when Marvel or DC finds out?

At the risk of going on a tangent. There is something called “Nominative fair use” that has come up in a few website cases. It's an exception to the general rule that you may not use another’s trademark in commerce. Nominative fair use, by definition, is not trademark infringement because such use is not likely to confuse consumers. Here's the test:

whether the product was “readily identifiable” without use of the trademark;
whether use of the trademark than necessary (also known as the minimum necessary test); or
whether the trademark’s use falsely suggested sponsorship or endorsement by the trademark owner.

One of the leading cases involved used Lexuses (or is that Lexi). A used car salesman had domain names for his dealership that had the name of car brands (buy-a-lexus.com and buyorleaselexus.com). When Toyota sued, the court found this was an ok use.

As for the superhero trademark. There are a lot of words that are trademarked that have more general meanings. Coke=soda, google=search on the Internet (not necessary on a google search engine), band aid=adhesive bandage. The test is whether the trademark has become the generic name for a general class of product against the usual intentions of the trademark's holder. Of course, the fact that "superhero" is a genre of fiction and comics kind of hurts their argument.

Hope it helps.

Chuck_Melville

JoeSergi said:

As for the superhero trademark. There are a lot of words that are trademarked that have more general meanings. Coke=soda, google=search on the Internet (not necessary on a google search engine), band aid=adhesive bandage. The test is whether the trademark has become the generic name for a general class of product against the usual intentions of the trademark's holder.

Yeah, and the parent companies of those products fight like hell to prevent them from falling into the current vernacular. Coca Cola was notorious a couple of decades ago for taking restaurants and bars to court over the use of the term 'Rum & Coke' if the bartenders were using some other cola instead. Xerox was also notorious for having an active campaign against the verbalizing of their name for the process of photocopying; You're not allowed to say that you made a Xerox copy on a Canon copier.