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The lawsuit was an outrage IMO
Vertighost
Posts: 335
I haven't listened to the earlier episodes yet, and you may have covered this already. If so, excuse my mini-rant.
IMO, National's lawsuit is the kind of slick corporate legal maneuver to get rid of fair competition that makes my blood boil if I think about it too long. Really, National? You're going to sue Fawcett over Capt Marvel when you bring Aquaman into the marketplace two years after Timely's the Submariner? And how much of a debt does Batman owe to Zorro and the Phantom? And they to characters before them?
It sort of reminds me of when Lucas sued over Battlestar Galactica, a markedly different work unless bad guys fighting good guys in space with robots is something Lucas came up with. Genre works of fiction, by definition, are generally going to share at least some superficial similarities with one another and they are usually indebted to so many tropes and clichés that came before (sometimes going back to the stories of Greek myth), that some of these lawsuits are bordering on corporate malfeasance. Okay, I'm completely exaggerating, but you get what I mean.
IMO, National's lawsuit is the kind of slick corporate legal maneuver to get rid of fair competition that makes my blood boil if I think about it too long. Really, National? You're going to sue Fawcett over Capt Marvel when you bring Aquaman into the marketplace two years after Timely's the Submariner? And how much of a debt does Batman owe to Zorro and the Phantom? And they to characters before them?
It sort of reminds me of when Lucas sued over Battlestar Galactica, a markedly different work unless bad guys fighting good guys in space with robots is something Lucas came up with. Genre works of fiction, by definition, are generally going to share at least some superficial similarities with one another and they are usually indebted to so many tropes and clichés that came before (sometimes going back to the stories of Greek myth), that some of these lawsuits are bordering on corporate malfeasance. Okay, I'm completely exaggerating, but you get what I mean.
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And to be fair, the earliest Captain Marvel stories in Whiz Comics were much more serious in tone and straightforward in action—in other words, much more like Superman stories of the period—than the later, more humorous stories we mostly associate with the Big Red Cheese. (I believe it was at least in part because of the lawsuit that CM’s stories became more whimsical on the whole, as part of a concerted effort to further differentiate the two characters.) Besides the similarities in powers, Clark Kent was a newspaper reporter; Billy Batson was a radio news reporter. Both had bald evil scientists as antagonists. In other words, at the time DC initially sued, September 1941, copyright infringement wasn’t an unreasonable claim. And during the trials, there were some Fawcett employees who testified they were told to make CM like Superman.
All that being said, I'm not saying I believe Captain Marvel was a copyright infringement, just that I can see why DC sued, and that they had a reasonable claim. And in 1951, the court found in favor of DC, based largely on the precedent of the Wonder Man case. The only reason they dismissed the case at that time was because the Superman newpaper strip had failed to maintain the Superman copyright, and in the judge’s opinion, no copyright meant no copyright infringement. In other words, Fawcett won on a technicality, an oversight on the part of McClure Syndicate (the license holder and distributor of the Superman newspaper strip). DC was kind of over a barrel at that point, because if they didn’t appeal it would mean Superman would legally be in the public domain. They had no choice but to appeal. Luckily for them, this time they got a judge who had a different (and frankly more correct) reading of what copyright abandonment entailed.
I get what you’re saying about genre stories sharing superficial similarities, but you have to keep in mind that in 1941 when the first lawsuit against Fawcett was filed, the superhero genre was still being defined. Fox Comics tried the “we’re both inspired by the same source material—Hercules” defence, but the judge declared that Superman’s stories were “arrangements of incidents and literary expressions which were original and properly copyrightable.” I don’t have a problem with that. And that’s the standard Fawcett had to clear—were CM’s stories different enough from Superman’s stories? Correctly or incorrectly, the judge ruled they were not.
Most importantly, though, at the time Aquaman was introduced, Namor was still very much the anti-hero with a mad-on for humans. Aquaman was as nice and helpful as Namor was destructive. In other words, their stories were very different, and the court viewed that as the most important factor for determining copyright infringement.
As for the Shadow and Batman, it really depends on which version of the Shadow you’re talking about. The original Shadow of the pulps was not a rich playboy, he only sometimes assumed the identity of Lamont Cranston, who, yes, was a rich playboy but also an entirely separate person. We don’t learn the Shadow’s real identity until 1937, six years after his creation. In the radio program, which started in 1937, the Shadow was simply Lamont Cranston. The radio show also gave him the power to cloud men’s minds and go unseen, something the original pulps did not do, so there’s an inconsistency in how he is portrayed across different mediums, which would weaken a copyright infringement case. In the pulps, the Shadow wore the wide-brimmed black hat, crimson-lined cloak, and a regular black suit. Nothing covered his face, though it was often half-hidden by the upturned collar of his cloak. In the radio show, he was almost always “invisible” as the Shadow. Somewhat of a far cry visually from the skin-tight union suit with cowl and DaVinci-esque Bat-wings of the early Batman stories.
And, of course, the Shadow carried and used guns to carry out justice. Yes, Batman did use a gun in the Golden Age, but not until Detective #32 where he shoots vampires with silver bullets to destroy them. The next issue he fires a gun to blow up a deadly machine. The next time is in Detective #36, when he fires a gun in the air to attract the attention of the police. Then in Batman #1 (Spring 1940), Batman uses a gun—the mounted machine gun of his airplane—to gun down the bad guys who were on their way to release a killer monkey on an unsuspecting populace. It’s the only case of Batman shooting and killing another human (two actually) in the Golden Age. He does fire a gun one last time in Batman #4 after picking up a dropped gun and intentionally winging an armed criminal in order to make him drop his weapon. So, yes, he does use a gun, but he’s not exactly a killing machine like the Shadow.
But, of course, the acid test is how similar are their stories? @Matt can speak to this better than I, but Batman gets info from his friend Commissioner Gordon, and swings in on a rope to surprise bad guys, while the Shadow disguises himself and utilizes a network of agents to gather intelligence. Batman relies on his utility belt full of gadgets and his fists, while the Shadow relies on stealth, subterfuge, and his automatics. The stories have some similarities, but are also rather different in many ways.
Ditto on the info regarding the original shadow and Batman and his use of a gun. From the few more modern (Bronze Age forward) Bat stories I've ever read that referenced it (where he seemed quite torn up that he'd ever held a handgun)I got the impression he'd used a gun (and specifically a hand gun) far more (and more lethally) than that. Given the time period I also assumed it was worse. See what happens when I assume? You are quite the historian, sir!
Btw, technically speaking should we assume that it was earth 2 Bats who used the gun? Should we assume most of those golden age stories happened in earth 2? Ditto golden age Supes? If anyone knows, I expect you do.
I’ve been saying that the Shadow is the tree you have the most branches from. The majority of the pulp characters are based off of him, Batman shares a lot of qualities, and Moon Knight is practically the comic book hero equivalent.
You could argue if Wayne is the disguise for Batman. Cranston is definitely a disguise for the Shadow. You don’t find out until years later he is Kent Allard, who was a mercenary soldier (hardly a playboy millionaire).
Having similar conversations with hardo DC fanboys in the past (who’ve claimed Marvel stole everything from DC), you can look at Superman as being John Carter of Mars. He shares traits with Doc Savage (as does Batman), and like Doc, has a Fotress of Solitude hidden in the Arctic. Yes, Doc’s Fortress of Solitude predates Superman’s. I thought it’s weird that Superman’s Earth name is “Clark Kent,” when Doc Savage’s name is Clark Savage, Jr. plus, Kent Allard/Shadow.
How close of a concept is Wonder Woman to Captain America (besides her debut movie basically being First Avenger)? Pulp character Black Bat debuted the same time as Batman; which spawns similarities with Harvey Dent...and Matt Murdock.
I throw Oliver Queen into the mix because he’s basically a Batman ripoff. Same company, sure, but virtually the same character.
While I do see the similarities between Savage and Supes, I'm not sure I'd throw John Carter in there since his story and the context are so different (while both Doc and Supes are super strong heroes fighting evil doers, Carter's more of a Robinson Crusoe figure stuck on another planet).
Although it still irks me that DC filed suit against Fawcett (esp given how distinct Capt marvel had become by the time he was carted away into comic book limbo) the more I read about it (esp from Nweathington who I think should be writing/lecturing about these topics professionally) the more interesting I find the whole thing. After reading the info Nweathington provided and doing some further searches on the topic online, my position on the whole thing has become....complicated. It makes me realize how genuinely original a character Supes was at the time. While he's got plenty of influences (Hercules, doc savage, the phantom-style skin-tight costume) the idea of a costumed, crime fighting Hercules who could physically do almost anything including leap through the air was certainly an idea any company would want to protect (as they increasingly financially exploited and legally screwed over the actual creators).
I also can see how the apparently often legally quoted Judge Learned Hand who decided in favor of DC did so, since there was certainly testimony and evidence that suggests some copying was going on, but also because the judge himself does not seem like the kind of person who had any appreciation for the medium (he called them "silly pictures"), never mind the kinds of specifics that would distinguish one character from the other.
I'd also like to point out that the judge was in his late 70's when he made this decision and already in his 20's by the time the fantastical (perhaps "silly") pulps hit the scene. It's pure conjecture on my part but it's hard to imagine such a person having the sensibilities to tolerate looking at any of this material with a patient eye, esp since he seems to have made his mind up on the matter very quickly. He said it required "scarcely a glance" to see it was plagiarized and believed any evidence that showed the key differences meaningless. "A plagiarist can never excuse his wrong by showing how much he did not plagiarize". I got these quotes from http://www.brittonpayne.com/Marvel/SupermanShazam.html
Britton Payne appears to be a lawyer who's made these kinds of legal cases his focus on line.
But, yes, the Scarlet Pimpernel came along in 1904 or so and left a mark, as did Dr. Syn, a.k.a. the Scarecrow (1915), who is best known today from the Disney movie The Scarecrow of Romney Marsh., and another French hero, Judex (1916), whose outfit is exactly like the Shadow’s save for the lack of a crimson lining in his cloak. Also like the Shadow, Judex was a master of disguise.
I think the John Carter (1917) reference is a valid one. Carter gains superhuman abilities—superstrength and the ability to leap great distances—only because he came from another planet, just as Superman gains his powers only because he came from another planet.