Next year there are two superhero movies coming out that share an incredible history that spans the entire history of the comics industry. If you go see these movies, the shared history won’t be apparent. In fact, they will probably be nothing alike. The movies won’t cross over or reference each other in any way. They don’t even take place in the same shared universe. One will take place in the Marvel Cinematic Universe and one will take place in the DC Extended Universe. These movies are Captain Marvel and Shazam!
What do these movies have in common? That’s a fair question, on the surface they seem about as different as two superhero movies can be. But each of them stars a superhero who plays a part in one of the most fascinating, confusing legal disputes in the history of comics. And if you know anything about the history of comics, you know it’s FULL of legal disputes.
Let’s begin with Shazam! (The exclamation mark is part of the title, not expressing my excitement about this character, though he is pretty cool). If you know anything about Shazam! you are already in an elite echelon of comic nerds (I use that term respectfully as I am one of you) even if you don’t know anything else about him besides his name. But if you know the name Shazam! then you probably also know that wasn’t always his name. Up until a few years ago, his name was Captain Marvel. At this point, you may have a basic idea where this story is going, but trust me – it’s not that simple.
In 1939, American comics company Fawcett Comics published Whiz Comics #2. Whiz Comics #2 was the first appearance of Captain Marvel, created by artist C. C. Beck and writer Bill Parker. In this comic, a homeless 12-year-old newsboy named Billy Batson meets a wizard named Shazam who grants him superpowers. Or, to be more precise, the power of the gods – Solomon (who is not a god, by the way), Hercules, Atlas, Zeus, Achilles (also not a god), and Mercury. When Billy says the magic word, the acronym of all their names (SHAZAM!) he is struck by lightning and turns into Captain Marvel, a blatant Superman knockoff.
Captain Marvel was an overnight success with kids. As cool as Superman was, he was an adult. Captain Marvel was a kid who became an adult with superpowers. That’s what made Captain Marvel unique and why, in the 1940s, Captain Marvel was the most popular superhero comic on the market. It outsold everyone, including the original Superman. It was even made into a series of movie serials. It wasn’t just a hit in North America either, it was reprinted in England by British comics publisher L. Miller & Son (that’s going to be important later!) Captain Marvel was so popular that Fawcett created spin-off characters and comics to capitalize on his success. Captain Marvel Jr debuted in 1941 as a teenage sidekick for Captain Marvel. Freddy Freeman, a friend of Billy Batson’s turned into a superhero when he said “Captain Marvel”. If you’re wondering why Billy turned into an adult and Freddy remained a teenager, the answer is because Robin, Batman’s teenage sidekick, was created a year prior and was extremely popular. All the superheroes needed a teenage sidekick. Even the superheroes who were actually teenagers. The next year, Mary Marvel made her debut. Billy discovered his long-lost twin sister Mary, who turns into a superhero when she says “Shazam!” You may be inclined to think that Mary Marvel is a Supergirl ripoff, but you’d be wrong. Mary was one of the first female spinoff superheroes ever created. Supergirl didn’t appear until 1959… created by Otto Binder, the same writer who created Mary Marvel for Fawcett.
Now, if you rip someone off like Captain Marvel ripped off Superman, you might just get sued. But if you rip someone off and then become more popular and more lucrative than the original, you’d better believe you’ll get sued! In 1941, National Comics (DC before they were called DC) sued Fawcett Comics for copyright infringement. But wait, why didn’t Marvel sue Fawcett for using their name? The answer to that is simple, they weren’t called Marvel yet. Marvel was originally called Timely Comics (from 1939-1950) and then Atlas Comics (from 1951-1957) before it became Marvel Comics. But don’t worry, they’ll get in on the fun soon enough!
The lawsuit between National Comics (DC) and Fawcett didn’t go to trial for seven years (during which time Fawcett continued to publish Captain Marvel and outsell Superman). Finally, in 1948 the suit went to court. The judge ruled that Captain Marvel was a copyright infringement. But he also ruled that National Comics had failed properly register the copyrights to some of their Superman publications and therefore forfeited the copyright. This meant that they didn’t own Superman and couldn’t sue Fawcett for infringing the copyright they didn’t have.
As you would expect, National Comics appealed to a higher court. When the suit went to the appellate court in 1952 (11 years after the lawsuit was originally filed!) the judge reversed the earlier ruling completely. He ruled that National’s copyright of Superman was valid, but that the character of Captain Marvel was not a copyright infringement. He did, however, say that the stories written about Captain Marvel, or the powers he had in those stories might constitute a copyright infringement. But if National wanted to sue on those grounds, it would have to start the lawsuit all over again!
National Comics didn’t have to bother. In 1953 Fawcett Comics settled with National. They paid $400,000 in damages, ceased publication of Captain Marvel, and shut down their comics publishing business. Why did they do this? Why give up the best selling superhero comic in the industry, pay damages, and shut down your business when you were winning? For one simple reason: by the early 1950s, Captain Marvel wasn’t selling well anymore and wasn’t worth the trouble.
You see, after World War II ended in 1945, superhero comics went out of style. The war had taken its toll on the public and they didn’t find fighting fun anymore. This is commonly known as the end of the golden age of superhero comics; every comic book company retired their superheroes and started publishing western, crime, horror, comedy, and romance comics. It was in this period that Archie, MAD, and Tales from the Crypt were first published. Basically, the only superheroes that escaped cancellation were Superman, Batman, and Wonder Woman. In the two years after WWII ended, Captain Marvel’s sales dropped by 2.5 million copies. By 1953 the powers that were at Fawcett decided to cut their losses and pull the plug on Captain Marvel.
Next time, how did DC end up owning Captain Marvel? Where did Marvel’s Captain Marvel come from? And don’t forget about L. Miller & Son!
God bless my friends!