"Marvel Comics owns the trademark for the name Captain Marvel. DC comics owns trademarks for the names Shazam and Billy Batson. In order to use Captain Marvel's name it must be used in the interior of the story, the same way DC does to avoid Marvel's trademark on the name.
Only the golden age Captain Marvel (as depicted in the comics that fell into public domain) is public domain. Non-public domain Golden Age appearances are under copyright of DC Comics, which owns the version of the character based on those comics and all subsequent versions published under DC comics banner
So if I - only using the golden age public domain material, and nothing that DC later contributed to the mythos - created a captain marvel story - while not having his name on the cover nor that of billy batson or shazam - would I be free of DC's legal fire?
Perhaps even free to redesign his costume?
Frevoli - March 6 2012 - 17:54
Technically, yes, you would legally be in the clear as far as I know (but I'm not a lawyer). It is definitely okay to redesign the costume...that would actually draw less attention, as you would be distinguishing your version from DC's...but personally, if I was going to use him, I'd go with the established costume that everyone loves.
I say you are technically in the clear, because DC might still try to intimidate you, even though they really don't have a case. They basically did that when AC used Phantom Lady, although I think that was a trademark issue (AC still uses Phantom Lady, but with a different name and a different costume...not sure what the point is). If you just use the character for a cameo or something, I doubt DC is going to go through the trouble, but if you're selling a new Captain Marvel book, they would probably be upset. The scary thing is that copyright law is complicatd, and I think there are a lot of judges in this world who don't really get it....the kind that rule based on their personal opinion rather than the actual law...which means there could be lengthy appeals, and if DC was serious about it, they could wear you out through attrition. Not that they really have grounds for the case. If you're lucky, you get a judge who does get it, and you get a quick and favorable decision. But it's going to take someone with a lot of confidence to stand up to DC, if they pick a fight.
Using the Shazam lightning itself as an attack
Did he ever do this in the fawcett publications, or was it a dc idea?
- I'm pretty sure that CM3 did the 'transform after my enemies have grabbed me' thing to stun his captors, which is close enough to cover your butt. (The 'charge my fist with magic' thing is pure DC tho -- also stupid.) -Derik (talk) 17:10, March 5, 2014 (UTC)
Can some please change:
All Billy had to do to use these powers was to say the wizards name "Shazam!"
All Billy had to do to use these powers was to say the wizard's name "Shazam!"
by adding the comma, to make wizard possesive.
Hi Crimson Crusader! Would you mind adding something to this page about his Lieutenants, the Squadron of Justice? I just created a page for them. Thanks in advance. Cebr1979 (talk) 23:55, April 29, 2013 (UTC) Carter
Can this page be added to the Twins category please? Also, in the 2nd last paragraph, Uncle Marvel is mentioned. Could that be linked to the page I recently created for him? Thanks in advance. Cebr1979 (talk) 21:37, May 4, 2013 (UTC)
Can this page be renamed Captain Marvel (Fawcett) and I'll make a disambiguation page for him, Captain Marvel Jr. and the MF Enterprises character? Thanks in advance.Cebr1979 (talk) 18:41, June 8, 2013 (UTC)
Whiz Comics Research
I did some research on my own for Whiz Comics (since this is the first appearance of Captain Marvel). I should note that this research is only on this series.
First, and right up front - DC's claim to copyright pursuant to reprints of material in 1973, et seq., through the Power of Shazam comics is invalid - they did not own the copyright at that time (they did not purchase the copyright until 1991). I have reviewed scanned copies of these books, and the copyright notice in each issues says, "Copyright (c) [year] by DC Comics Inc." No mention is made nor claimed for the actual copyright holder, Fawcett Comics Inc., which makes their claim over reprint defective. In no subsequent publication by DC Comics can I find anywhere that they assert Fawcett's copyright, and therefore all DC reprints of material are not valid. Also, DC never filed a single renewal on any of the Fawcett material, either. Therefore, all they own is the character, not the previously published work.
Second, I went to the actual copyright publications for renewed periodicals to search Fawcett's own renewals. It turns out, Fawcett did renew quite a few (though not all) of their Whiz Comics issues. However, there are a few defective renewals, which opens up the door for invalidation of the registered entries (a grey area, true - but with very exacting details on copyright, I believe valid, all the same). Here are the exact records from Catalog of Copyright Entries Ser 3, Vol 21, Pt 2, Pgs 406-07 (1967):
Whiz Comics v1, no 3, Mar40 c 12Jan40: B440639 17May67: R410147
Whiz Comics v1, no 4, Apr40 c 23Feb40: B447071 1Jun67: R411109
Whiz Comics v1, no 5, May40 c 27Mar40: B449976 1Jun67: R411108
Whiz Comics v1, no 5 [i.e. 6], Jun40 c 26Apr40: B452785 1Jun67: R411107
Whiz Comics v1, no 6, Jul40 c 24May40: B455913 7Jun67: R411639
Please note: Fawcett Comics had conflicts with the numbering of their Whiz Comics issues, and this muddies the water on these issues. For instance, the cover of the Mar '40 issue and interior reflected No. 3, but the next issue (Apr '40) had a cover No. 3, but an interior No. 4. This error continued into the following issue (May '40), which had a cover No. 4, and an interior no. 5. The next issue (Jun '40) had both cover and interior listed as No. 5, and it continued correctly aligned thereafter.
As I understand it, copyright title applies to the cover, not the interior content (which is why DC cannot publish a Captain Marvel covered title, but can name the character within the book). Fawcett's renewals relied upon the interior, not cover Nos. And in the case of No. 5, actually confused the issue by trying to redefine No. 5 as "i.e. 6". Of course, the renewals reference the original copyright filing record, so this may be a moot issue - I only raise it for better experts than myself to examine this factor.
After this, the renewals by Fawcett are spotty. I summarize which issues are renewed and where here:
Catalog of Copyright Entries Ser 3, Vol 27, Pt 2, Pg 485 (1973): Whiz Comics v11-12, Nos. 64-71
Catalog of Copyright Entries Ser 3, Vol 28, Pt 2, Pg 507 (1974): Whiz Comics v12-15, Nos. 72-86
Catalog of Copyright Entries Ser 3, Vol 29, P2, Pg 489 (1975): Whiz Comics v15-17, Nos. 87-98
Catalog of Copyright Entries Ser 3, Vol 30, P2, No 2, Pg 424 (1976): Whiz Comics v18-19, Nos. 105-110
Catalog of Copyright Entries Ser 3, Vol 31, Pt 2, No 1, Pg 447(1977): Whiz Comics v19-20, Nos. 111-116
Catalog of Copyright Entries Ser 3, Vol 31, Pt 2, No 2, Pg 491 (1977): Whiz Comics v20, 22, Nos. 117-18, 130
Fawcett Publications was sold to CBS Publishing, Inc. (presently known as Hachette Filipacchi Media U.S., Inc.) in 1977, and CBS also made some efforts to file renewals of some of the Whiz Comics publications. However, with exception of only two issues, their filings were all outside the 28 year renewal period (They had until the anniversary of publication, and they typically just filed for bulk renewal in the 28th year, but months after the actual date of publication). These are those records:
Copyright Catalog (1978-Present) - Whiz Comics v22-26, Nos. 131-53, 155 (141-42 - only legally claimed in 28 yrs by CBS)
One other factor to consider is that prior to 1978, a publication had a 28 year shelf-life, and only had one additional 28 year renewable period. So following this model, the original renewals made by Fawcett Comics up and through 1977 are now in the public domain, since even the latest renewal would have expired in 2005. Again, DC's claim of copyright renewal is defective since they did not reprint material with clear copyright entitlement to Fawcett Comics, meaning there is no post-1978 renewal of any of Fawcett's Whiz Comics material save two issues properly renewed by CBS Publications (Whiz Comics 141 & 142).
Under the altered law that took effect in 1978, renewals were granted a forty-seven year extension instead of twenty-eight on "works for hire" (of which all Fawcett books were, since the creators had no copyright claim), which would bring those two books up through 2027. Therefore, based on this logical progression, all of the Whiz Comics series save Nos. 141 & 142 should be in the public domain.
However, of notable interest, DC Comics did not buy the rights to the original printed materials, just the rights to the character in 1991, which was well outside the renewal period for the original series, which ended in 1953 (28 years renewal period would have expired in 1981 - and I have previously explained why CBS' renewals were defective).
The final thing to consider here is that it appears that these two issues that are still potentially under copyright protection have been orphaned. There is no clear ownership on any of the issues. CBS sold off Fawcett Publications to Ballentine Books in 1982, and then later still Fawcett was subject of a leveraged buyout in 1987, with the Fawcett brand piecemealed off afterwards to cover the cost of the leveraging. DC ultimately bought the rights to the Marvel Family, but not the titles (which, as has been pointed out by previous posters, DC does not own the original characters, only the characters as they appear in the non-public domain work, ie, 1973 onward). In fact, the books themselves seem to have been lost in the shuffle of transition altogether. Therefore, it is my considered opinion - after extensive searching - that even if the issues are still subject to copyright, they are now orphan works without any clear rightsholders.
I am hoping that others more qualified than myself could use this information and perhaps clarify or enhance it, if they are aware of any additional areas of legality I am not aware. Anyone else's take on these issues - including the technicalities around the first issues renewed by Fawcett - would be greatly appreciated.
Ron Glick, Author
22.214.171.124 04:53, June 10, 2014 (UTC)
"Therefore, all they own is the character, not the previously published work."
They don't even own the character. A US judge ruled to uphold the laws regarding a characters' copyright just this past December (regarding Sherlock Holmes). If a characters' first appearance is PD, so is the character. End of debate. Cebr1979 (talk) 21:54, June 5, 2014 (UTC)
126.96.36.199 04:53, June 10, 2014 (UTC)
Hey Ron thanks for sharing your research with us on the renewal records for Whiz comics. Definelty something that bears more looking into. Hopefully more issues weren't renewed like you claim which would give us more PD Captain Marvel comics. I'll try and look more into it myself when I get a chance.
I should also not that Cerbr1979 is correct in saying that the character is public domain and not owned by DC. They would only own their version of Captain Marvel just as anyone who creates a derivative work of a public domain character would. To use the Sherlock Holmes example, BBC and CBS would own the versions of Sherlock Holmes that appear in their television series Sherlock and Elementary respectively, but anyone can create their own version of Sherlock Holmes based of the public domain stories. Crimsoncrusader (talk) 19:20, June 8, 2014 (UTC)
188.8.131.52 04:53, June 10, 2014 (UTC)
This is Ron Glick - I just forgot to log in before I wrote all of this... *sigh*
I took the time to search for the decision Cebr1979 articulated and found it as Klinger v. Conan Doyle Estate, Ltd., Dist. Court ND, Illinois 2013. Having read it, though it is an extremely helpful decision regarding public domain usage, it does not say precisely what Cebr1979 states.
In summary, the case describes pre- and post-1923 copyrightable material of Sherlock Holmes. The court determined that post-1923 material (10 short stories) are still under copyright, but that all other material is no longer under copyright in the US (the only place in the world where there is still a legal copyright claim for Sherlock Holmes at all). In examining the specific claims to the use of the character, the court determined that any characteristics of Sherlock Holmes from prior to 1923 were usable as public domain concepts, but any characteristics that originated in the post-1923 works were not usable. So though the case does reaffirm that a character that originates in the public domain is usable, it sets a boundary that if any work is still under copyright containing that character, any unique characterization of that character is not usable.
This being said, DC does not own the original Fawcett creation that was introduced in Whiz Comics #2. But it can and does own any material of the Captain Marvel/Shazam character that they created, which was where my point was directed - Their claim to the Fawcett character was defective since their reprinted material did not identify the copyright holder, but they did own their own creation of the character. They did make an original creation of Captain Marvel in 1973, and they did introduce unique story elements to the character at that time while under license of the copyright owner, Fawcett Comics. They then bought the rights to the character outright in 1991. The real question then comes to whether the party selling DC those rights (CBS?) had the legal right to sell them in the first place, since their own copyright renewals were almost exclusively defective.
Basically, the point of Klinger here is that the Captain Marvel character is not public domain exlcusively because his first appearance is public domain - this case only gives entitlements to new material created that is based on the characterizations established in the public domain. Any new characteristics of Captain Marvel in material still under copyright protection would not be inclusive in public domain claim nor usage. Since DC created material under license from Fawcett while the copyright was active, its own creations in 1973 are effectively covered and it owns the right to the character from that point forward because they did identify themselves properly - it is just the material printed originally by Fawcett that is not covered, except perhaps Whiz Comics #141 and 142.
One interesting note - the Illinois court distinguished that there is such a thing as two versions of a character in this kind of scenario - a public domain character and a copyrighted character, each with their own unique identity under the law. In this instance, there are two Captain Marvel characters - one in the public domain (Fawcett's) and one that is not (DC's).
If I have read the wrong case, or if there is a follow-up on this ruling, please by all means correct me. My bias is towards establishing clear public domain claim on all this material, but I want people to make the best informed decisions possible. And that means pointing out potentially misapplied areas of law...
You read the right case and everything you just posted was just a really, really, really long version of what CrimsonCrusader already said in his small second paragraph.Cebr1979 (talk) 18:59, June 10, 2014 (UTC)
Remove the Golden Age Renewed Issues of Whiz Comics?
Is there any way to amend the DC copyright materials to reflect that the original Fawcett Comics are actually public domain? If DC only owns the non-public domain character, and their reprint claims were not valid, then - according to all the information provided - shouldn't the Whiz Comics issues be removed from the Copyright Renewed Golden Age Appearances listing?
BTW, the directions to the Catalog of Copyright Entries were spot on...
184.108.40.206 00:36, February 4, 2015 (UTC)
More Captain Marvel Research
As some of you may know, I am the publisher of the Golden Age Preservation Project, converting public domain comics into Kindle to make these treasures available through Amazon (more info on my website: ronglick.com). In preparing the original Whiz Comics series, I did some pretty intensive research, and then posted my research here. I had planned to return to do more research on the public domain Captain Marvel titles much sooner, but my own writing schedule got in the way.
At any rate, I have now completed another bout of exhaustive research into another series, Captain Marvel Adventures. As with Whiz Comics, this is a series full of spotty copyrights, and with exception of three issues, it is my considered opinion that all of these books are in the public domain.
First, please keep in mind that though DC has claimed to own the material reprinted in 1973 onward through their Power of Shazam series, they failed to provide copyright claim to Fawcett, which made any claim of DC's publication somehow extending Fawcett's copyright defective (see my previous post).
Fawcett Publications published Captain Marvel Adventures from 1941-1953. Pursuant to the copyright laws at the time, a "work for hire" periodical was entitled to an initial 28 year copyright, with a one-time optional 28 year renewal so long as the renewal was registered by the eve of the 28 year period's expiration. The U.S. Copyright Act of 1976 changed the renewal period to 47 years, so any publication whose 28 year period would expire after 1978 got to take advantage of this new extension, ie, anything published from 1950 on. In this case, that would be the last few years of this series' run.
Next, Fawcett Publications was sold to CBS Publications, Inc. (presently known as Hachette Filipacchi Media U.S., Inc.) in 1977. This meant that pretty much all renewals under the new law fell to CBS to perform. Though Fawcett was never consistent on which issues they would file renewals for, at least they were always timely on the renewals they did file. CBS, however, was notorious for making late filings, thereby forfeiting their copyright claims.
This being said, all of Fawcett's renewals fell under the old law (28 year renewal), while CBS' all fall under the post-1978 law. With this in mind, here are the records of the issues which Fawcett filed for (again, knowing that even the latest renewal filed in 1977 expired in 2005):
Catalog of Copyright Entries 3D Series Vol 23, Pt2, pg 387 (1968): Captain Marvel Adventures v1, Nos. 3-5.
Catalog of Copyright Entries 3D Series Vol 23, Pt2, Pg 390 (1969): Captain Marvel Adventures v1, No 6.
Catalog of Copyright Entries 3D Series Vol 27, Pt2, Pg 451 (1973): Captain Marvel Adventures v8-9, Nos. 46-53.
Catalog of Copyright Entries 3D Series Vol 28, Pt2, Pg 465 (1974): Captain Marvel Adventures v9-13, Nos. 54-73.
Catalog of Copyright Entries 3D Ser, Vol 29, Pt2, Pg 449 (1975): Captain Marvel Adventures v13-15, Nos. 74-85.
Catalog of Copyright Entries 3D Ser, Vol 30, P2, No 1, Pg 370 (1976): Captain Marvel Adventures v15-16, Nos. 86-91.
Catalog of Copyright Entries 3D Ser, Vol 30, Pt2, No2, Pg 397 (1976): Captain Marvel Adventures v16, Nos. 92-98.
Catalog of Copyright Entries 3d Ser, Vol 31, Pt 2, No 1, Pgs 420(1977): Captain Marvel Adventures v17, Nos. 99-103
Catalog of Copyright Entries 3D Ser, Vol 31, Pt 2, No 2, Pg 439 (1977): Captain Marvel Adventues v18-20, Nos. 104-117
Again, these issues's copyrights expired in 2005. I am only providing this information in case someone knows some legal reason that my own calculations are in error.
Beginning in 1979, CBS Publications began filing their own renewals on Captain Marvel Adventures issues. Here are the issues they filed renewals on:
Copyright Catalog (1978-Present): Captain Marvel Adventures v20-24, Nos. 118-129, 131-141, 143-144
This being said, after personally examining CBS' filings, they are almost all universally defective. Though the Copyright Office accepted the filings, with the exception of three issues (Nos. 128, 129, and 141), they were all filed outside the initial 28 year filing window. CBS apparently had the practice of making end of year filings on expiring copyrights that calendar year, with little consideration that the actual copyright may have expired in the first part of the year. For example, if CBS waited until Nov 10, 1980 to file a renewal on an issue originally copyrighted on Feb 6, 1952, their renewal is defective because it was filed outside the 28 year window (Yes, this is an actual example - Captain Marvel Adventures #131, to be precise).
The final thing to consider here is that it appears that these three issues that are still potentially under copyright protection have been orphaned. There is no clear ownership on any of the issues. CBS sold off Fawcett Publications to Ballentine Books in 1982, and then later still Fawcett was subject of a leveraged buyout in 1987, with the Fawcett brand piecemealed off afterwards to cover the cost of the leveraging. DC ultimately bought the rights to the Marvel Family, but not the titles (which, as has been pointed out by previous posters, DC does not own the original characters, only the characters as they appear in the non-public domain work, ie, 1973 onward). In fact, the books themselves seem to have been lost in the shuffle of transition altogether. Therefore, it is my considered opinion - after extensive searching - that even if these three issues are still subject to copyright, they are now orphan works without any clear rightsholders.
So there you go - my research on the Captain Marvel Adventures series. Hope this has been helpful, and I welcome any comments on my research.
It would be better if you could post links to where you're getting this info from because (just like your last post) some of this seems pretty bogus (and the rest is just a long, overly drawn-out explanation of stuff you already know we know).Cebr1979 (talk) 12:17, May 7, 2015 (UTC)
I have cited the sources of my information - The Catalog of Copyright Entries (prior to 1978 US Copyright Office Publications) and the Copyright Catalog (post 1978 US Copyright Publication). If you'd like to verify the information, you are welcome to visit copyright.gov and do the research with their online records.
But hey - if you consider my work "bogus", I will forego posting my research altogether and the rest of the community can hang in limbo on the legalities involved. Problem solved.
You should check our FAQ. The rest of the community really isn't "hanging in limbo." There are also a few conversations on CrimsonCrusaders talk page you should look into.Cebr1979 (talk) 00:41, May 8, 2015 (UTC)
I think you're misinterpreting the way the Copyright Extension Act of 1978 works. It applied to works still under copyright including those that had been renewed, So, it's not just works published after 1950 that it applied to but also works that were renewed after 1950. That's why the general rule is that titles before 1923 are PD while titles that are published afterwards are not. Those before had their renewals expire before the extension went into affect. Those after, their renewals were still active and had the extra years added on and then again when the copyrights were extended to 95 years. Thus, nothing new will pass into public domain until 2018 which will be the 1923 titles. Anything from the 1940s that had proper renewals in the 1960s will still be under copyright until 2035 at the earliest. Edward Lee Love220.127.116.11 17:46, May 7, 2015 (UTC)
Thanks for the clarification - this was indeed helpful, and an area I was misreading. And this is why I was putting all my work online: to have someone see if I was in error on anything. This still does not remove the orphan works issue, but it does clarify that the books listed in my article are indeed still considered under copyright.
Orphan Works are an interesting issue as they are technically still under copyright and thus you can be subject to a fine for using them according to one of my textbooks. It didn't go into detail as to who instigates the proceedings and does the fining though. The Standard/Nedor comic and pulp characters are possibly the most well-known and most used characters that seem to fall under this category though it is possible that they may truly belong under the DC banner. It is hard to tell when looking at characters published by companies whose properties have been sold, divided up and resold over the years.
One point I had not considered was that renewals go by publication date and not the calendar year (I've seen this referenced elsewhere as well). While this means that some of the renewals don't seem to be legit, this does pop up in other places in the records such as some of the Timely titles. Technically, it would make them invalid, but it would probably take a court case to actually establish and enforce that and I would hate to calculate the odds of going against the megaliths that own DC and Marvel in court even with the power of right on my side. Edward Lee Love18.104.22.168 14:22, May 8, 2015 (UTC)
Everything I have read on copyrights says that a copyright owner must raise a complaint for someone to be fined or subject to penalties. With a genuine orphaned work, there is presumably no one to bring such a claim. Everything I have read says that DC bought the rights to the Marvel Family characters, but not the reprint rights to the original material - and the owner of the present material is now in limbo. The last record I can find for transfer of Fawcett Publications (who had the reprint rights still as far as I can tell) was when it was sold back to Hachette Filipacchi Media (formerly CBS Publications) in 1988. It appears that Fawcett itself was completely dissolved as its components were absorbed into Hachette, but there is no record I can find where Fawcett's reprint rights were reassigned or, for that matter, ever again used. Again, I welcome anyone's input who has a better ability than myself to dig into the business records of these companies...