The Tale of Two Captain Marvels

By Hoh Jerick

With the recent box office hit from Warner Bros., the entire world was introduced to a superhero that was given the moniker, “The Big Red Cheese”, or better known as “Shazam”. Bestowed with powers from a wizard, the young Billy Batson would call out the name “Shazam!”, and instantly reappear as an adult in full superhero regalia. However, unless you were a comic book geek (totally acceptable in today’s time), or perhaps interested in Intellectual Property (IP) disputes, you may not know that “Shazam” was originally known as “Captain Marvel”. But wait… isn’t there already a “Captain Marvel” clad in red, gold and blue from Marvel Studios? Yes, there is! Thus begins the tale of two Captain Marvels, and the long and arduous battle in court between fictional men (and women) in tights.

To understand why there are two Captain Marvels, we need to travel back in time to meet another superhero that started it all. A superhero who may disagree with the way you wear undergarments, the Man of Steel himself, “Superman”. Published by DC Comics, Superman was arguably the first superhero to capture the minds of the youth in the 1930s. This sparked the beginning of the Golden Age of Comics that led to all the superheroes we know and love today.

But before we move further, to not get confused between the two Captain Marvels (one from DC Comics and the other from Marvel Comics), we will refer to DC’s “Captain Marvel” as “Shazam”. Shazam was a character published by Fawcett Publications in the late 1930s that had gained a wide audience especially with pre-teens who dreamt that one day, they could also be superheroes. This led to the rise of Shazam in terms of wealth and fame, as most pre-teens could relate to Billy Batson. The recognition garnered by Shazam also caught the attention of DC Comics, and what later ensued was a 12-year legal battle on copyright infringement which later brought on the dissolution of Fawcett Publications.

In the copyright infringement lawsuit filed in 1939, DC Comics (known as National Publications at that time) sued Fawcett Publications on the grounds that Shazam had derived his characteristics, superpowers and visual similarities from Superman himself. Similarities such as the clean-cut facial structure, reminisce of the ideal gentleman style in 1940s America, the attire as both wore tights and had a cape, with the same superhuman feats and strength. However, similarities between the characters reached further as the comic book covers of each superhero’s first appearance included the use of a car and a display of their superhuman abilities. Also, what moviegoers may not know is that Billy Batson, the boy who shouts “Shazam!” was a radio reporter in the original comics. Again, tying in with Superman, whose alter ego “Clark Kent” was also a news reporter.

The case between DC Comics and Fawcett was later settled out of court with Fawcett, deciding not to pursue further in the arduous battle, proceeding to pay DC Comics USD 400,000 in damages (which is almost equivalent to USD 4 million today). During this period, the comic book theme for superheroes was waning, and Fawcett had agreed to end all publications of their beloved superhero characters, leaving Shazam in limbo.

With Fawcett out of business (at least on the comics side of things) and their characters floating in the clouds, the name “Captain Marvel” was bounced around between a few publishers and finally, it ended up with Marvel Comics. It was around almost a decade or so later in 1967 that Marvel Comics acquired the trademark “Captain Marvel”, and the first Captain Marvel by Marvel Comics was created. Lo and behold, an alien military personnel by the name of “Captain Mar-Vell”.

However, Marvel Comics had no clear direction to steer their Captain Marvel character, and they had been publishing Captain Marvel comics, with various fictional individuals donning the name “Captain Marvel”, at least once in a few years in order to retain their trademark rights on the name itself (As according to the trademark laws in the United States, the owner of a trademark would have to provide evidence to proof that the trademark is still in use). After an array of different Captain Marvels, it was not until 2012 that Marvel Comics set an anchor in establishing the Captain Marvel character that we now get to see on cinema screens.

Coming back to DC Comics, in the midst of looking for new characters to introduce, they decided to buy over all the rights to the superheroes under Fawcett Publications, including Shazam himself. It was not until 1972 that DC undertook this initiative, and when they had planned to reboot Shazam, they were unable to use the name “Captain Marvel” due to Marvel Comics being the rightful trademark owner of the name “Captain Marvel” in 1967. In a total hullabaloo, this would seem comical as the name “Captain Marvel” was basically batted around like the ball in the video game Pong that was so loved by children of the 70s.

With DC Comics unable to use the name “Captain Marvel”, they proceeded to call their character “Shazam” instead. When publishing their new character under the name “Shazam”, DC Comics – in a possible display of dissatisfaction – subtitled the book “The Original Captain Marvel”. This prompted Marvel Comics to send a cease and desist letter to DC Comics, propelling them to use another subtitle. Since then, DC Comics have tried to market “the Original Captain Marvel” as “Shazam” and have succeeded to an extent, as the wider audience today would recognise the character as “Shazam”. But as one searches the internet, text links on the comic book character in Wikipedia are still presented as “Captain Marvel (DC Comics)”. Further still, a minor confusion arises as the name “Shazam” was also the name of the wizard who granted the character his superhero abilities.

From the above, we can see the importance of the roles that brands or names play in the minds of us mere mortals. How we recognise and remember a brand is extremely crucial for the expansion and growth of a business, regardless of whatever the business may be. And for a business to sustain and maintain its status, getting your IP rights secured and protected is a dire need. Besides that, originality is also of grave importance, as the world would be grey and dull if not for the creativity and innovation of individuals. As such, copying in whatever way should not be accepted, and in quoting the great author Herman Melville, “It is better to fail in originality than to succeed in imitation”.

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Communications at KASS International Sdn Bhd

KASS International is an established Intellectual Property Firm which offers a one-stop solution for IP matters in Malaysia, South East Asia, and worldwide.