Superhero Intellectual Property – In brightest day, in blackest night, no infringer shall escape their sight
Superheroes have armor to protect their bodies, and gadgets to fight their enemies, but what protects them from impostors, what can they use to fight off infringers? A superhero’s intellectual property consists of everything from their insignia to their gadgets and even their catch phrases. In some cases intellectual property protection safeguards the means by which they obtained their powers and their very DNA.
Congress is granted the power to extend limited protection to authors and artists for their works by the United States Constitution1. To receive copyright protection a work must be original and fixed in a tangible medium of expression. A dance for example, while original, would not be fixed, however recorded choreography could receive protection. The subject matter of copyright must be in one of the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
In no case does copyright protection extend to any idea, which is unprotectable or a procedure, process, system, method of operation, concept, principle, or discovery, which are the subject of patent law. Similarly words and short phrases, simple geometric shapes, and colors even if used in an original fashion can only be protected, if at all, by trademark law2.
While an idea cannot be protected, its expression is usually capable of being copyrighted. If a friendly neighborhood superhero wants to put a symbol on his chest to help his adversaries and admirers identify him, that is an idea that is unprotectable; the stylized spider that he chooses is the expression of that idea. This rule limits protection to works that have actually been created and prevents registrants from barring access to entire areas of thought and art for other artists.
Almost every superhero has a costume to protect their identity, usually thanks to their mom. Aside from the ubiquitous nature of masks, capes, and utility belts, many of these costumes look substantially similar. Unfortunately for Mrs. Kent or Mrs. Reed3, the creators of these uniforms would be unable to bring a claim against heroes with similar (or even identical) costumes because fashion is excluded from copyright protection. The rationale lies in the purpose of the Copyright Act, which is to grant protection to artistic works, at the exclusion of “useful” works. Something that is both useful and artistic can be protected so long as the useful aspect can be separated either physically or conceptually. Without getting into the analysis too much, under current law clothing has been deemed useful and incapable of copyright protection. This designation is the reason “knock-off” clothing is available and why Batman never sued Batgirl for copyright infringement.
Batman, The Punisher, The Flash, and Spiderman all have an identifiable symbol associated with their superhero identities. For all of these heroes that symbol is permanently affixed to their costumes and sufficiently original, satisfying the elements for copyright protection. No one else can use a substantially similar bat, skull, lightning bolt, or spider, respectively. For some crime fighters, however, the copyrightability of their emblem is not so straightforward.
Depending on which version of the story you subscribe to, Superman’s “S” symbol was 1) created by Superman as a boy, 2) created by Jonathan or Martha Kent, or, 3) the family crest for Superman’s family on Krypton and found in the shuttle with him when he crashed to Earth. If Superman did indeed develop the symbol as an “S” to stand for “Superboy, and later Superman” and also “Saving lives, Stopping crime, and giving Super-aid wherever it’s needed,”4 then Superman would have had a valid copyright in the symbol. (See my previous post on immortality and the law to read more about his unique issues with copyright law.)
If Jonathan or Martha created the symbol, however, they would be the owners of the copyright. In certain situations works created by one party are the property of another. In a “work-made-for-hire” situation someone hires an author to create a work that becomes the property of the employer after it is created. Since no version of the story shows Superman paying for the creation of any part of his costume, in this case the “S” would actually belong to Superman’s adoptive parents.
Similarly, if the insignia were the symbol of his biological family on Krypton the copyright protection would have vested in the original author (probably one of Superman’s ancestors). Copyrights are granted for the life of the author plus 70 years so it is likely that the protection would have run its course and the symbol would be part of the public domain.
The limits of copyright protection can be seen when analyzing Captain America’s symbol, a white, five-pointed star. Simple geometric shapes cannot be copyrighted because they lack the requisite degree of originality5.
One of the exclusive rights granted to copyright owners is the right to create derivative works. These works are based on the underlying copyrighted work and either extend the expression into a new area or build upon what is already protected. Common examples of derivative works are sequels, games based on movies, and guides that accompany some video games.
In some versions of the story, Batman gives the Batsignal to the city of Gotham, in which case there would be no issue of infringement for its creation as a derivative work. Some versions though depict Commissioner Gordon creating the signal as a means of contacting the Dark Knight. In addition to violating Batman’s right to create derivative works in his protected symbol, the Batsignal also violates his right to publicly display his works. Each time the Commissioner turns the signal on he is casting an image of the bat symbol for the whole city to see and each use represents a case of infringement. The Copyright Act awards a copyright holder statutory damages equal to a set sum of money for each violation of their rights so over the years the Commissioner has seriously exposed the city of Gotham to liability.
Trademarks are distinctive marks or symbols that identify the source of products or services to consumers. The intent is to prevent one business from mimicking the look and feel of another in an attempt to confuse the public about the origin of products.
To receive the protections of trademark law, a superhero must use a mark in commerce, which means that they must charge for their services. While this may seem counterintuitive to the notion of fighting for justice, the pursuit of justice is not the motivation of all crime fighters. While some well-known heroes have charged for their services at some point or another, there are a few that consistently charge for their activities — Luke Cage “Hero for Hire” and The Goon are two such examples.
Because Luke Cage charges for being a superhero he is granted additional protection under trademark law for aspects of his costume, name, and even his catchphrase (“Sweet Christmas!”), which serve to identify him to his customers. This protection is limited however, and only prevents other heroes who charge fees as well from using the same or confusingly similar elements of his persona in an attempt to create a false designation of origin. Thankfully, unless you charge victims of crime for your protection you are free to cry out “Sweet Christmas!” as you offer gratuitous assistance.
As I mentioned briefly above, patent protection is reserved for processes, methods, machines, manufactures, and compositions of matter that are new and useful. Patent protection would allow Batman to exclude all others from creating any of his proprietary bat-technology or allow Ironman to protect his suits and war machines. Even Spiderman could claim patent protection for the compound he created that allows him to sling webs, but patent law would also cover some of the processes by which superheroes have gotten their powers.
The Incredible Hulk and Doctor Manhattan received their powers through scientific experiments. Though not the intent of either experiment, the process by which a human could be endowed with near limitless strength or power over time and space, respectively, could be patented.
I have mentioned before that many accidents that result in superpowers take place at work. In most situations where an employee makes a discovery at work the fruits of that discovery belong to the employer. In states where the law does not provide for an automatic assignment of intellectual property created at work6, many employers draft employment agreements that transfer rights in discoveries to the employer. Similar provisions are also generally found in enrollment agreements for colleges and universities. Professors, however, almost always retain rights to their discoveries, however their contracts may grant limited licenses to the University to use those discoveries at least in the context of publicity and soliciting grants.
As a result it is likely that the U.S. Army could claim a patent for making “Hulks,” the the Gila Flats research facility could start churning out “Doctor Manhattans,” and the Central City Police Station could develop an “Incredible Flash” formula for all their officers. Doctor Connors, a professor at NYU who developed a gene serum that turned him into the Lizard, would probably retain the rights to his discovery.
The biggest problem facing almost every superhero with intellectual property to protect is that to enforce their rights they would be required to register their creations thereby disclosing their identity. Tony Stark is usually very forthcoming with his Ironman alter-ego but others are more reluctant to go public. Trade secret protection offers limited protection along the same lines as the theories discussed above and does not require any registration. As long as the information sought to be protected is:
it can be preserved and enforced through industrial espionage and misappropriate laws. The most famous example of trade secret protection is the “secret formula” for Coca-Cola, which has no patent protection but has remained undiscovered by anyone outside the company. If trade secret has thwarted the forces of Pepsi and Mountain Dew, Batman and Spiderman should rest easy that their inventions are safe from prying eyes.
IN THE NEXT EXCITING INSTALLMENT
Next week we’ll discuss laws that have been specifically drafted to apply to superheroes.
1 – Article I, Section 8, Clause 8
2 – 17 U.S.C. section 102(a)-(b).
3 – My absolutely favorite superhero costume moment is from Meteor Man with Robert Townsend where his mother, Mrs. Reed, makes a series of ridiculous costumes. Yes, there is a montage.
4 – More Fun Comics #101.
5 – U.S. Copyright Office: Compendium of Office Practices II, section 503.02(a).
6 – Cal. Labor Code Sec. 2860