Super-TM

Once upon a time, copyright was something that allowed writers and artists to profit from the fruits of their labors, hopefully allowing them to become even more fruitful and live a life that didn’t follow the classic path of struggling to make money for someone else in a badly-lit counting house or clerk’s office until they died of consumption or syphillis at an early age.  Once upon a time, it was a tool for intellectual liberation.  In the last twenty or thirty years, however, intellectual property laws have become the engine driving Orwell’s nightmare to fruition. They are increasingly the measure of how much our culture is being handed over to corporations.  The most perfect example of this cropped up lately when the two big boys of comics, Marvel and DC (the former owns superheroes like Spider-Man and the Fantastic Four, the latter originated the superhero genre with Superman, Batman, and Wonder Woman) teamed up to claim trademark on the term “superhero.” In other words, they claim to own the word that’s roamed free and unmolested through the fantasies of generations of kids has been corralled, doomed to graze forever on the (admittedly large) ranches of the two big companies. Todd at Briefs on the Outside does a good job of explaining what the trademark does and doesn’t mean:

The trademark registration does not mean that only DC and Marvel can use the phrase “super heroes”. It means that only they can use it commercially. You and I can talk about “super heroes this” and “super heroes that” all we want. We can fill a whole book with the phrase. That’s because this is a trademark, not a copyright. (The differences between copyright and trademark are pretty substantial. I could go on for kilobytes about it.) I could even revive my childhood team “the Union of Super Heroes” and publish a series featuring them. DC and Marvel couldn’t do a thing to stop me.

But I couldn’t put that name on the cover, because DC & Marvel’s trademark prevents me from using “super heroes” as part of the marketing of a comicbook (or a costume or a toy figure or a belt). And the title is obviously a big component of the marketing. That’s where creator Dan Taylor and “guerilla publisher” GeekPunk ran afoul of Marvel and DC’s legal departments. I suspect that this is part of the reason why Malibu Comics decided to refer to the heroes of their Ultraverse comics as “ultras”, so they’d have freedom to use this term wherever and however they wanted, including the books’ covers, action figure packaging, etc.

The trademark also doesn’t mean that you can’t use just “Super” or “Heroes”. In fact, trademark registrations routinely declare that they’re not claiming the exclusive right to use some subset of the phrase they’re using. Putting this disclaimer on it makes it easier to get the registration approved, because it means the US Trademark Office doesn’t need to research whether anyone’s used “Super” as a brand of comicbooks. So you could publish “Super Comics” without conflicting with this trademark. (Of course you’d probably run into some problems with DC alone, who’d argue that it conflicts with their trademark on the name “Superman”.) (link)

As the Boing Boing story notes, this has been a long-term campaign by DC and Marvel to shut out relatively insignificant competitors. But it also shows how “intellectual property” in the modern world makes our intellectual space smaller.  Superman may be the most important pop-cultural creation of the 20th century; the instant Siegel and Shuster created him, the superhero dug into our consciousnesses and never let go.  But the corporate powers are holding on to their property with even more ferocity, and how we talk and write about  that part of our imaginations is apparently their legal perogative.

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