The Hero Who Outdid Superman (2 of 3)

Though he didn't OUTLAST him.

The twelve-year legal battle between DC and Fawcett began within weeks of Captain Marvel’s creation and concluded with Fawcett getting out of the comic-book business altogether. So…did DC win (Captain Marvel Adventures #68)?

Eh, kinda? It might’ve been better off not pursuing the case at all. What really decided matters was a slump in superhero sales, and the first decision in the case put DC in hilarious jeopardy. It ruled DC’s copyright had lapsed, permitting anyone to publish Superman stories without even changing the costume or names!

Plenty of characters of more recent vintage are direct riffs on Superman, far more so than Captain Marvel ever was. A few have even headlined their own series. DC’s pursued no notable action against them. “Fair use with satiric intent” is a robust defense, and honestly, it’s just not worth it.

The likely outcome would’ve been an argument that Captain Marvel did infringe on Superman in smaller ways, but to figure out exactly what damages were owed, DC would have to cite all Captain Marvel storylines or even panels that were pointedly similar to earlier Superman storylines or panels, not the whole dang property.

Comics-history and legal expert Bob Ingersoll claimed this kind of busywork wouldn’t be bothersome—“it’s what interns are for,” as he put it. With respect, I must disagree: Fawcett published an estimated 1,740 Captain Marvel-based stories, all of which would need to be combed through, panel by panel. This is like winning a million dollars but having to collect it by carrying bags of pennies back to your house.

(Are these hiring scenes from Action Comics #1 and Whiz Comics #2 close enough? Probably not, right?)

Also—this is ludicrous. It’s like arguing infringement based on similar action shots in movies, or on the TV trope of a “baseball episode.” At some point, inspiration shouldn’t be actionable, and a comic-book panel (even a comic-book cover, really) is well past it.

Such an inquiry might find Superman owes as much to Captain Marvel as the other way around. Flying instead of “leaping a tall building in a single bound”? Cap did it first.

Cap and Supes got their greatest enemies in the same month, but Cap’s was first to be bald:

(Yes, Luthor is being all “We meet again” to Superman even though it’s his first appearance. Shock and horror, Luthor lied about something!)

By 1953, when Fawcett got out of the game, market confidence in superheroes was cratering. Even Cap’s adventures had become more like horror comics, since that seemed to be what the kids were into now (Whiz Comics #155).

Captain Marvel’s prolific scripter Otto Binder, however, landed on his feet. He jumped to Superman…and brought some Cap-style whimsy with him, feeding into the goofiness of Superman’s Silver Age. He also created lore still in use today, such as Krypto, Supergirl, Brainiac, and the Legion of Super-Heroes. So in a way, Supes owes Cap for all that, too.

Fawcett settled out of court and cut its losses. Almost simultaneously, MAD #4 mocked the case, pitting versions of Superman and Captain Marvel into battle outside the courtroom. Though it’s a little odd that MAD cast Cap as the more money-minded of the two. Who sued who, again?

Sometimes satire becomes reality. When DC acquired the rights to the Fawcett characters after another twenty years, it often pitted Captain Marvel against Superman.

But DC wouldn’t sue itself for infringement, so at least Cap’s legal troubles were behind him, right?

Well-ll-ll…

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