Moviegoers who lined up to see Captain Marvel probably walked past posters announcing the soon-to-be-released D.C. Comics’ blockbuster Shazam!. Anyone remotely familiar with comic book lore knows that the muscle-bound superhero with the red suit and yellow lightening bolt on the Shazam! posters was known for over 70 years by the name “Captain Marvel.” How is it that two two heroes with the same name ended up being owned by the two competing titans of the comic book world? The answer lies in a more nefarious battle than the conflict between the Kree and the Skrulls — a battlefield within the courts and the laws of intellectual property.
Return with us to a time before Marvel was the superpower of comics. The golden age of comics began in the 1930s with such notable characters as the Phantom, Mandrake the Magician, and Superman. It was Superman’s success that really inspired competitors to try their own hands at this genre. Fawcett Comics gave it a go with a character created by artist C.C. Beck and writer Bill Parker. Their brainchild was named “Captain Marvel,” and he first appeared in the February 1940 edition of Whiz Comics.
Fawcett Comics’ Captain Marvel is the red-suited, caped crimefighter we now know as “Shazam.” Captain Marvel is the alter-ego of Billy Batson, a boy who, by speaking the magic word “SHAZAM” (acronym of six “immortal elders”: Solomon, Hercules, Atlas, Zeus, Achilles, and Mercury), can transform himself into a costumed adult with the powers of superhuman strength, speed, flight and other abilities.
By the early 1940s, sales of Captain Marvel outpaced its nearest rival, Superman, and this did not sit well with DC Comics. Claiming that Captain Marvel was too similar to Superman, DC brought a copyright and trademark infringement suit in 1941 against Fawcett Comics. The litigation dragged on for nearly a decade until it finally reached the U.S. Court of Appeals in 1951. (Read the court’s decision in National Comics Publications, Inc. v Fawcett Publications, Inc., et. al.)
The court’s decision didn’t exactly clarify things. It determined that Captain Marvel was not, itself, an infringement of the Superman character, but that certain stories might be. The court sent the matter back for retrial on those issues.
Rather than continue in prolonged litigation, Fawcett Comics decided to settle out of court. The result of the settlement was that DC purchased all rights to Captain Marvel for $400,000, and Fawcett agreed to cease using Captain Marvel and all related characters.
Although DC now owned all of the rights to Captain Marvel, the character was not used and remained out of print for the rest of the 1950s and the 1960s. During this time, because of the lack of usage, and due to DC’s failure to renew its rights to the name, the trademark and copyright for the name “Captain Marvel” lapsed.
Seeing a rare opportunity, a relatively-new competitor took action. Marvel Comics, under the leadership of Stan Lee, swooped in and took advantage of the situation. Lee created a character by the name of Mar-Vell, a member of the Kree alien race, who came to earth as a spy before having a change of heart and switching to the side of earthlings. Mar-Vell fought evil under the name “Captain Marvel.” The character made its debut in Marvel Super-Heroes #12 in December 1967. Although the character never really took off (at least, not until 52 years later, when a modified version of the character would hit the silver screens), it did give Marvel Comics the opportunity to trademark the name for itself.
Under the laws of intellectual property, DC Comics still owned their own Captain Marvel, but they could not promote him by that name. When it launched a live-action television series in 1974 around the character, the program aired under the show title Shazam! If you watch the opening to the show, you will learn that Billy Batson transforms into Captain Marvel, and that is the name by which the caped crimefighter is known. In terms of the show’s title and promotional material, however, only Marvel Comics had the right to the use of “Captain Marvel.”
When the DC character was relaunched in 2011, the powers that be decided to give up on the “Captain Marvel” name altogether. Since then, both the title and the character go by the name “Shazam.” Presumably, there is a way to allow Shazam to tell people what his name is without simultaneously transforming himself back into Billy Batson. As previously disclosed in an earlier post, the author of this blog is an avowed Marvel fan and is unqualified and disinclined to delve into that particular nuance.
And that, in summary, is the story of the greatest Marvel/DC crossover battle of all time. It was a battle fought out in the courts, rather than the pages of a comic book, but the outcome cast its shadow over two great super hero* universes.
* FOOTNOTE: The term “Super Hero” is jointly claimed by DC Comics and Marvel Comics as a trademark. Registrations of “Super Hero” marks have been maintained by DC and Marvel since the 1960s, including U.S. Trademark Serial Nos. 72243225 and 73222079.
Read more fun facts about comic books.
Read more fun facts about trademarks and copyrights.